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Judicial Review of Tribunal Decisions—the Need for Restraint

The legal profession has for so long been accustomed to the idea of decisions being able to be reviewed through a hierarchy of courts that it has come to regard this practice as ordained. It is true that some limitations on appeals are included in legislation but these are in the main based on monetary limits and are less concerned with the nature of the subjectmatter under appeal. There is a pervading notion that ultimately a "right" decision will be given by an appellate court. If all cases could only reach the final appeal court, correct decisions would always be obtained. This pursuit of the grail of the right decision will, in fairness, be affected by the view of a litigant's legal adviser as to whether or not an appeal is likely to succeed. But the bringing of an appeal is as likely to be affected by the depth of the client's pocket and the effect that the delays encountered in the appeal process will have on him. The wealthy litigant whose affairs are not disadvantaged by the need to resolve speedily the issue between him and his opponent has available the luxury of multiple opportunities to attempt the resolution of a dispute. The possibility of litigation advancing through a series of courts with the consequent burden of costs is often a deterrent to action being brought. The courts may be open to all but they are really only available to those who can afford to pay or who can so arrange their affairs as to be able to afford to lose. Whether it is right that multiple avenues of appeal should be provided litigants in the courts is a question not relevant to this article. The issue here is whether it is appropriate that tribunals should become an adjunct to this system. Should a person who seeks review of a governmental decision by a tribunal find himself caught in a series of appeals from that tribunal decision? It will be submitted that he should not be subject to this risk because the tribunal is there to provide a function different from that which has resulted in the perceived need for there to be a hierarchy of courts. The role of the courts is not only to resolve the dispute before it but also to state the relevant law correctly. In many areas the courts will be themselves making the law-a law that has been developed and moulded by them over many years without legislative intervention. But more likely nowadays is that the courts will be involved in the interpretation of a statute and, in fulfilling this duty, the courts will be indicating to members of the community how they should go about organizing their affairs to comply with the directives of the legislature. Our society thus has a system whereby experts in the law specify what the law is and apply that law so expounded to the facts that have brought the dispute before the court. The function of tribunals is very different. At the federal level a tribunal cannot