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Mandamus
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Mandamus
A writ of mandamus (/mænˈdeɪməs/; lit. ''we command'') is a judicial remedy in the English and American common law system consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties, or to refrain from performing an act the law forbids it from doing. Writs of mandamus are usually used in situations where a government official has failed to act as legally required or has taken a legally prohibited action. Decisions that fall within the discretionary power of public officials cannot be controlled by the writ. For example, mandamus cannot force a lower court to take a specific action on applications that have been made. However, if the court refuses to rule at all, then mandamus can be used to order the court to rule on the applications.
Mandamus may be a command to take or not take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when they are denied a legal right by someone who has a legal duty to do something and abstains from doing it, or vice versa.
The party requesting a writ of mandamus to be enforced should be able to show that they have a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as appeal.
The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is therefore an equitable remedy, and a matter for the discretion of the court, the exercise of which is governed by well-settled principles.
Mandamus being a discretionary remedy, the application for it must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must satisfy the Court that they have the legal right to the performance of the legal duty as distinct from mere discretion of authority. A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and that duty, despite a demand in writing, has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.
There are three kinds of mandamus:
Under the Australian legal system, mandamus is available through section 75(v) of the Constitution of Australia.
In England and Wales, mandamus was originally known as a writ of mandamus. Historically, direct orders from the monarch to subjects commanding the performance of particular acts were common, and to this class of orders mandamus originally belonged. It became customary for the Court of King's Bench, in cases where a legal duty was established but no sufficient means existed for enforcing it, to order performance by this writ. Mandamus more recently became known as an order of mandamus. This procedure was renamed by the Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 to become a mandatory order.
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Mandamus
A writ of mandamus (/mænˈdeɪməs/; lit. ''we command'') is a judicial remedy in the English and American common law system consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties, or to refrain from performing an act the law forbids it from doing. Writs of mandamus are usually used in situations where a government official has failed to act as legally required or has taken a legally prohibited action. Decisions that fall within the discretionary power of public officials cannot be controlled by the writ. For example, mandamus cannot force a lower court to take a specific action on applications that have been made. However, if the court refuses to rule at all, then mandamus can be used to order the court to rule on the applications.
Mandamus may be a command to take or not take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when they are denied a legal right by someone who has a legal duty to do something and abstains from doing it, or vice versa.
The party requesting a writ of mandamus to be enforced should be able to show that they have a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as appeal.
The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is therefore an equitable remedy, and a matter for the discretion of the court, the exercise of which is governed by well-settled principles.
Mandamus being a discretionary remedy, the application for it must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must satisfy the Court that they have the legal right to the performance of the legal duty as distinct from mere discretion of authority. A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and that duty, despite a demand in writing, has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.
There are three kinds of mandamus:
Under the Australian legal system, mandamus is available through section 75(v) of the Constitution of Australia.
In England and Wales, mandamus was originally known as a writ of mandamus. Historically, direct orders from the monarch to subjects commanding the performance of particular acts were common, and to this class of orders mandamus originally belonged. It became customary for the Court of King's Bench, in cases where a legal duty was established but no sufficient means existed for enforcing it, to order performance by this writ. Mandamus more recently became known as an order of mandamus. This procedure was renamed by the Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 to become a mandatory order.