What difference does it make? Full Court confirms caution about finding futility in judicial review

Key Points:

Courts are generally very cautious about finding that relief in judicial review cases would be futile.

It is common in judicial review proceedings for the respondent to claim that an error made no difference to the outcome, and that relief to the applicant should therefore be denied. In House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72, the Full Federal Court confirmed that the test is not easy for a respondent to satisfy.

The error, the decision, and whether it mattered

House concerned a decision of the Administrative Appeals Tribunal which both the applicant and the respondent agreed was tainted by error. However, the respondent argued that the error "would not have affected the result" and therefore that the decision of the AAT should stand.