the doctrine of jurisdictional error

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The Doctrine of Jurisdictional Error


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THE DOCTRINE OF JURISDICTIONAL ERROR IS VERY

RELEVANT... AND TOPICAL

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The Mohamed Haneef Affair A Case of ‘Jurisdictional Error’ ‘The Federal Court today

quashed [the] decision to cancel the former Gold Coast-based Indian doctor's work visa on character grounds.

Justice Jeffrey Spender ruled that Mr Andrews had made a "jurisdictional error" in cancelling Dr Haneef's visa.’ – The Age, August 21, 2007.


INTRODUCTION

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Distinction between UV and JE?[Reviewing] courts usually said that an

inferior court or tribunal that had exceeded its powers had made a jurisdictional error; whereas an administrative officer who had gone beyond power was said to have acted ultra vires.

Whitmore & Aronson, Review of Administrative Action, LBC, 1978, p. 143

Doctrine of Jurisdictional Error Traditional Doctrine of

Jurisdictional Error Error of Law on the Face of the

Record – an Exception to the Traditional Doctrine

Doctrine of Broad (Extended) Jurisdictional Error

Doctrine of Jurisdictional Error

THE TRADITIONAL DOCTRINE OF

JURISDICTIONAL ERROR

Traditional Doctrine of Juris Error MATTERS

WITHIN/MATTERS OUTSIDE JURISDICTION DICHOTOMY

FACT/LAW DICHOTOMY ERROR OF LAW

DICHOTOMY

Traditional Doctrine of Juris Error

THE MATTERS WITHIN/MATTERS

OUTSIDE JURISDICTION DICHOTOMY

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Traditional Jurisdictional Error The reviewing court makes a distinction

between: Matters within jurisdiction, being

matters that ‘go the merits’ of the original decision

Matters outside of jurisdiction, being matters that ‘go to the question of jurisdiction’

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Traditional Jurisdictional Error Matters within jurisdiction:

are matters that the tribunal of fact only decides may involve questions of fact or law are UNREVIEWABLE in the absence of some

statutory right of appeal or review Matters outside of jurisdiction:

involve questions of law that go to the question of jurisdiction

are REVIEWABLE by the superior court

Traditional Doctrine of Juris Error

THE FACT/LAW

DICHOTOMY

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Traditional Jurisdictional Error

There is what is known as the fact/law dichotomy (or distinction).

Decision-making involves questions of fact and questions of law errors of fact = errors made with

respect to questions of fact errors of law = errors made with

respect to questions of fact


THE ERROR OF LAW

DICHOTOMY

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Traditional Jurisdictional Error In addition to the fact/law distinction,

there is also an error of law distinction, as follows: There are JURISDICTIONAL

ERRORS OF LAW, and There are NON-JURISDICTIONAL

ERRORS OF LAW.

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Traditional Jurisdictional ErrorIn the absence of some statutory right of

appeal or review: Errors of fact are UNREVIEWABLE unless

the error made is one of jurisdictional fact Errors of law are UNREVIEWABLE unless

the error made: is a jurisdictional error, or appears plainly on the face of the record of the

inferior court or tribunal

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Traditional Jurisdictional Error Under the traditional doctrine of jurisdictional

error, only JURISDICTIONAL ERRORS OF LAW are ordinarily reviewable (subject to one exception known as ‘error of law on the face of the record’).

NON-JURISDICTIONAL ERRORS OF LAW are (subject to the above mentioned exception) unreviewable.

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Traditional Jurisdictional Error Under the traditional doctrine of

jurisdictional error NON-JURISDICTIONAL ERRORS OF LAW are ALL errors of law other than those that go the question of jurisdiction.

Traditional Jurisdictional Error NON-JURISDICTIONAL ERRORS of law thus include:

“abuse of power” errors – eg acting in bad faith or for an improper purpose, taking into account an irrelevant consideration, failing to take into account a relevant consideration, acting manifestly unreasonably, etc, and

“failure to exercise power” errors – eg fettering discretion, acting inflexibly on a policy, acting under dictation, and

until fairly recently, acting contrary to the rules of procedural fairness.

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Traditional Jurisdictional Error NOTE. In recent years a breach of the

requirement of procedural fairness has generally been assimilated within traditional jurisdictional error.

See eg Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238; Plaintiff S157/2000 v Commonwealth (2003) 211 CLR 476.


MORE ON THE FACT/LAW

DICHOTOMY

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Traditional Jurisdictional Error Fact/Law Distinction

What is a fact?

A FACT IS

AN OCCURRENCE

IN SPACE AND TIME.John Anderson (1893-1962)

Challis Professor of Philosophy

University of Sydney, 1927-58

“Father of Australian Realism”.

John Anderson (1893-1962)

Matters of ‘fact’ and matters of ‘opinion’

Every ‘opinion’, to be ‘valid’, must be based upon, and supported by, facts relevant to the particular question or issue.

Opinions can be said to be ‘true’ or ‘false’ when attention is directed, not to the opinion itself, but to the thing that the opinion is of.

The test of a ‘true’ opinion is to ‘see’ whether or not something is the case.

Matters of fact … and opinion

To find out whether a fact exists, you ‘look and see’ or observe … or examine.


DIFFERENT ‘KINDS’ OF

FACTS

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Traditional Jurisdictional Error• There are PRIMARY FACTS and

ULTIMATE QUESTIONS OF FACT.

• For example, whether or not there is a “furnished dwelling-house” (the ultimate question of fact) involves the following questions of primary fact …

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• … all of which are logically interconnected on the same level of observability and being:

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Traditional Jurisdictional Error Is there a “structure” (that is, something built up

of component parts)? If so, is there a structure in the nature of a

“building”? … A question of fact and degree in each particular case.

If so, does the building comprise a “dwelling”? that is, “a room or suite or suite of rooms occupied or

used or so constructed or adapted as to be capable of being occupied or used as a separate domicile”.

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Traditional Jurisdictional Error If so, and leaving aside what are known as

dual occupancies, semi-detached dwellings and the like for the moment, is the dwelling separate from any other such dwelling such that it is a “dwelling-house”? that is, “a building containing 1 but not more

than 1 dwelling”. If so, is the dwelling-house “furnished”?

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Traditional Jurisdictional Error Facts need to be adduced to prove all of the

above matters. The adduced facts comprise what are known

as the basic or primary facts (facta probantia).

They are the basic facts that must be adduced to prove or disprove the ultimate question of fact (the factum probandum).

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Traditional Jurisdictional Error In Hayes v Federal Commissioner of Taxation

(1956) 96 CLR 47 at 51 Fullagar J said:

Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.

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Traditional Jurisdictional ErrorWith respect, and regrettably,

the true legal position is more complex than that.

These are the questions that must be asked:

1. In what sense, legal or otherwise, does the statute use the particular word or phrase (the “statutory description”)? That is a question of law.

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Traditional Jurisdictional Error2. If the legislative intention is that the word or

phrase be given its “ordinary” meaning, then the meaning of the word or phrase is a question of fact.

If, however, the legislative intention is that the word or phrase be used in its technical “legal” sense, its meaning is a question of law.

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Traditional Jurisdictional Error3. Does the material with respect to the primary

facts reasonably admit of different conclusions or inferences as to whether those facts come within the ambit of the statutory description?

Again, that is a question of law.

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Traditional Jurisdictional Error4. If the answer to Question 3 is yes, what is the

“correct” conclusion? That is a question of fact.

5. If, however, the answer to Question 3 is no, a question of law is involved.

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Traditional Jurisdictional Error6. Where only one conclusion or inference can

be drawn from a set of primary facts as to whether or not they come within the ambit of a statutory description, in circumstances where a contrary decision has been drawn by the original decision-maker, an error with respect to a question of law (that is, an error of law) has been committed by the original decision-maker.

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Traditional Jurisdictional Error Hope v

Bathurst City Council (1980) 144 CLR 1 …

Is the land ‘rural land’ as defined?

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Consequences of errors in fact finding

.. ‘where only one conclusion can be drawn from a set of primary facts, that those facts, fully found, come within or fall outside a statutory description, and an contrary decision has been made, an error of law has been made. That error may or may not be jurisdictional’ Hope v Bathurst City Council (1980) 144 CLR 1

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Traditional Jurisdictional ErrorImportant distinction between errors of fact and errors of law

Questions/Errors of fact a finding of fact – thus, the following have been held by the

NSW Court of Appeal to involve only an error of fact, at least as regards “primary” (as opposed to “ultimate”) questions of fact: a “wrong” finding of fact, a “perverse” finding of fact, a finding of fact “contrary to the overwhelming weight of the

evidence”, a finding of fact “against the evidence and the weight of the

evidence”, a finding of fact that “ignores the probative force of the evidence

which is all one way”, a finding of fact that “no reasonable person could have made”,

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Questions/Errors of fact (cont’d) “demonstrably unsound” reasoning at least as

regards the reasoning by which the original decision-maker arrived at the finding of fact

the drawing of a conclusion or an inference from or as to a primary fact, but only if rightly directed in law including correctly understanding the statutory language (in which case it is a conclusion or an inference of fact only)

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Questions/Errors of fact (cont’d) whether primary facts, fully found, come

within the ambit of a statutory description in circumstances where divergent conclusions or inferences can, on the evidence, reasonably be drawn as to whether or not those facts come within the ambit of a statutory description (at least in circumstances where the statute uses the words comprising the statutory description according to their ordinary meaning)

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Questions/Errors of fact (cont’d) whether evidence ought to be accepted, and the “ordinary” (that is, everyday or common

understanding) meaning of a word or phrase in the English language, or its non-legal technical meaning, where the legislative intention is that the word or phrase be given its “ordinary” or non-legal technical meaning as the case may be, as well as the meaning of a word or phrase the meaning of which is a matter of degree.

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Errors of fact not generally reviewable - exception - jurisdictional fact

Factual errors are generally unreviewable under the principles of jurisdictional error with one exception.

The Exception: Where the fact, or fact-situation, is a … JURISDICTIONAL FACT.


JURISDICTIONAL

FACTS

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What is a jurisdictional fact?

‘A fact will be a jurisdictional fact if it must exist in fact and the legislature intends that the absence or presence of the fact will invalidate action under the statute’ Timbarra Protection Coalition v Ross Mining

NL (1999) 46 NSWLR 55 (NSWCA)

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What is a jurisdictional fact? Hope v



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What is a jurisdictional fact? The expression "rural land" was defined in s.118 (1) of the

Local Government Act 1919 (NSW), so far as it is material, to mean:

‘a parcel of ratable land which is valued as one assessment and exceeds 8,000 square metres in area, and which is wholly or mainly used for the time being by the occupier for carrying on one or more of the businesses or industries of grazing, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping horticulture, vegetable growing, the growing of crops of any kind or forestry.’

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What is a jurisdictional fact? This definition threw up as an issue for

determination by the primary judge, viz: the question whether the appellant's

land was wholly or mainly used by him for carrying on the business or industry of grazing.

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What is a jurisdictional fact? The ‘wrong’ approach:

Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434

Londish v Knox Grammar School (1997) 97 LGERA 1

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What is a jurisdictional fact? The ‘right’ approach:

Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Chambers v Maclean Shire Council (2003) 57 NSWLR 152

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Questions/Errors of law “pure” questions of statutory interpretation including

but not limited to the sense, legal or otherwise, in which a statute uses a particular word or phrase, and the determination of whether or not a phrase in a statute is a composite phrase

the meaning of a word or phrase in a statute where that word or phrase is used in a technical “legal” sense or in circumstances where the determination of the matter requires legal training

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Questions/Errors of law (cont’d) the effect or construction of a word or phrase in a

statute whose meaning or interpretation is established

whether the original decision-maker has misdirected itself in law including but not limited to having defined otherwise than in accordance with law the question of fact to be answered (but only as regards “ultimate” as opposed to “primary” findings of fact)

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Questions/Errors of law (cont’d) the drawing of a conclusion or an inference from or

as to a primary fact, but only where not rightly directed in law including but not limited to incorrectly understanding or otherwise misinterpreting the statutory language (otherwise it is a conclusion or an inference of fact only)

whether conclusions or inferences from or as to primary facts are, on the evidence, capable of being drawn or can reasonably be drawn

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Questions/Errors of law (cont’d) the existence or non-existence of a jurisdictional fact whether primary facts, fully found, come within the

ambit of a statutory description, in circumstances where: the statute uses the words comprising the statutory

description in a sense other than their ordinary meaning, or

only one conclusion can be drawn from a set of primary facts, as to whether or not they come within the ambit of a statutory description, in circumstances where a contrary decision has been drawn by the original decision-maker

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Where only ONE conclusion can be drawn from a set of primary facts … Hope v



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Where only ONE conclusion can be drawn from a set of primary facts … Hope v Bathurst City Council (1980) 144

CLR 1 … Once the ‘right’ meaning was given to the

word ‘business’ in the statutory description, there was only ONE conclusion that could be drawn from the set of primary facts, viz: Hope’s land was ‘rural land’ as defined in the

LG Act.

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Questions/Errors of law (cont’d) whether primary facts, fully found, are capable of

coming within the ambit of a statutory description, including: whether the evidence reasonably admits of different

conclusions or inferences as to whether the primary facts come within the ambit of the statutory description (rightly construed), and

whether a conclusion or an inference that primary facts, fully found, come within the ambit of a statutory description could reasonably be drawn,

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Questions/Errors of law (cont’d)Why?

Because before a conclusion or inference is or can be drawn, there is the preliminary or threshold question of whether the evidence reasonably admits of different conclusions

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Questions/Errors of law (cont’d) whether there is evidence of a particular fact,

whether the evidence reasonably admits of different conclusions, and whether the evidence is insufficient to prove a fact, and

whether the original decision is one that could reasonably have been made on the evidence adduced.

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TRADITIONAL JURISDICTIONAL ERROR is of 3 kinds

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Traditional jurisdictional error: 3 Kinds

Lack or want of jurisdiction

Excess of jurisdictionWrongful failure or refusal

to exercise jurisdiction

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Traditional jurisdictional error

Any other error of law is known as a non-jurisdictional error (that is, an error made within jurisdiction).

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Subject to ONE exception, a non-jurisdictional error of law is unreviewable in the absence of some statutory right of appeal or review.

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That exception – to be discussed later – is known as ERROR OF LAW ON THE FACE OF THE RECORD.


THE THREE TYPES OF TRADITIONAL JURISDICTIONAL

ERROR

Traditional jurisdictional error WANT/LACK OF

JURISDICTION EXCESS OF JURISDICTION WRONGFUL FAILURE OR

REFUSAL TO EXERCISE JURISDICTION

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Traditional jurisdictional errorWant/lack of jurisdiction

R v Hickman ex parte Fox and Clinton (1945) 70 CLR 598A case about lorry drivers …who sometimes carried coal in their trucks.

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Traditional jurisdictional errorWant/lack of jurisdiction

‘In my opinion, the whole of the evidence shows that the employers and employees concerned are not engaged in the coal mining industry, and that therefore the decision of the Local Reference Board was made without jurisdiction’, per Latham CJ at 609

R v Hickman ex p Fox and Clinton (1945) 70 CLR 598

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Traditional jurisdictional errorWant/lack of jurisdiction Ex parte Wurth;

Re Tully (1954) 55 SR (NSW) 47

… Was a refusal to appoint to a permanent position a ‘dismissal’ within the meaning of the Act?

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Traditional jurisdictional errorWant/lack of jurisdiction Potter v Melbourne

& Metropolitan Tramways Board (1957) 98 CLR 337

Was a reduction in grade and salary a ‘punishment’ within the meaning of the Act?

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Traditional Jurisdictional ErrorExcess of jurisdiction

R v Connell ex p Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

… An increased rate of wages was awarded to shift workers at certain collieries.

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Traditional Jurisdictional ErrorExcess of jurisdiction ‘Where the existence of a particular opinion is made a

condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by the reasonable man who correctly understands the meaning of the law under which he acts. If it is show that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist’

R v Connell ex p Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430

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R v Connell ex p Hetton Bellbird Collieries (cont’d)

‘It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does is to inquire whether the opinion required by the relevant legislative provision has really been formed.… (cont’d)

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R v Connell ex p Hetton Bellbird Collieries (cont’d) … If the opinion which was in fact formed was

reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational or not bona fide’ (per Latham CJ at p 432)

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Traditional jurisdictional errorExcess of jurisdiction

R v Australian Stevedoring Industry Board ex p Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 … A board was empowered to cancel or suspend the registration of an employer engaged in the stevedoring industry.

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Traditional jurisdictional errorExcess of jurisdiction ...But the power of the Board … to cancel or suspend

registration ..depends upon the satisfaction of the Board or its delegate that one or other of the conditions does exist. If the Board … is subjectively satisfied that the … company is either unfit to continue to be registered ... then the power exists to cancel or suspend the company’s registration no matter how erroneous in point of fact the opinion of the Board … may be. … (cont’d)

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Traditional jurisdictional errorExcess of jurisdiction But it does matter if the opinion is

erroneous in point of law. That is to say the board or its delegate must understand correctly the test provided ...and actually apply it. R v Australian Stevedoring Industry Board

(1953) 88 CLR 100 per Dixon at 118.

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The Mohamed Haneef Affair A Case of ‘Jurisdictional Error’ … ‘Excess’ ‘The Federal Court today

quashed [the] decision to cancel the former Gold Coast-based Indian doctor's work visa on character grounds.

Justice Jeffrey Spender ruled that Mr Andrews had made a "jurisdictional error" in cancelling Dr Haneef's visa.’ – The Age, August 21, 2007.

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Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 Full Bench of Federal Court of Australia

Black CJ ‘Character test’: s.501(6)(b), Migration Act

1958 (Cth) Full Bench unanimously rejected Minister's

interpretation of the ‘character test’ relied on in the cancellation former terrorism suspect Dr Mohamed Haneef’s visa.

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Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203

Visa had been cancelled on the basis that the Minister: ‘reasonably suspected’ Dr Haneef did not pass the character test,

and the Minister was satisfied that it was in the

national interest to cancel the visa.

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Migration Act 1958 specified various circumstances under which a person did not pass the character test.

The circumstances included that a person has or has had ‘an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct’.

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Minister had relied on Dr Haneef’s ‘association’ with the Ahmeds

The Ahmeds were allegedly involved in the failed car bomb attacks in Glasgow and London.

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Minister had applied a wide interpretation of the word ‘association’, which … did not require any suspicion that Dr

Haneef was sympathetic to, or supportive of, or in any way involved in the criminal conduct of which the Ahmeds were suspected.

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Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 HELD: The ‘association’ to which the Act

refers: is one involving some sympathy with, or

support for, or involvement in, the criminal conduct of the person, group or organisation with whom the visa holder is said to have associated, and

must have some bearing upon the person's character.

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An ‘innocent’ association is not enough.

There must be some nexus between the relationship that the visa holder has to the other person, and the criminal activity of that other person.

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Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 HELD: In interpreting the provision, the Minister

must take into account: the context in which it appears the purpose of the Act the legislative history considerations of the consequences of adopting

competing interpretations. The Court applied the principles of common law

concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected.

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Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 Full Federal Court confirmed the decision of

Spender J Minster had committed a jurisdictional error He had applied the wrong jurisdictional test

– he misinterpreted the character test and applied a test that was too wide and could encompass links that could not have conceivably had any bearing on the visa holder's character

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Traditional Jurisdictional ErrorWrongful failure/refusal to exercise jurisdiction

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

‘… The mining warden, in misconceiving his function, failed to perform his duty.’

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‘If a person having a duty to hear and consider misconceives what is his relevant duty, he will have failed to perform that duty and may be compelled by mandamus to perform it according to law’ Per Barwick CJ

No evidence presented by the company upon which the warden could base his opinion – thus, he misconceived what was his duty. Sinclair v Mining Warden at Maryborough (1975) 132

CLR 473

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‘The use by the warden of the expression “public interest as a whole’ indicates ..that the warden failed to understand that irrespective of the interests of the objectors of their number and, indeed, irrespective of the existence of an objection on that ground, he was bound to consider whether the granting of the application would prejudicially affect the public interest.

… (cont’d)

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If he had realized this he could not, in my opinion, have drawn the irrelevant distinction between the views of a section of the public and the public interest as a whole. In my opinion, he has not considered the real question which it was his duty to consider, namely, whether the granting of the application would prejudicially affect the public interest.’Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 per Barwick CJ.

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Identifying jurisdictional error First, identify the nature of the body exercising

power and the jurisdiction in question.

eg The Coal Compensation Tribunal was established under section X of the Coal Compensation Act 2002 (NSW). The Coal Compensation Tribunal is a NSW statutory administrative tribunal. Its jurisdiction is to award compensation (up to a maximum amount) to any person entitled to claim compensation. However, it may only do so IF …

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Jurisdiction of specific tribunal The Tribunal’s jurisdiction is to do X

(eg award compensation, revoke a person’s registration, vary an award, etc)

For the Tribunal to exercise jurisdiction the Tribunal must … Now, list, in an orderly and sequential fashion,

the various matters of jurisdictional fact and jurisdictional law that go to make up what is known as the ‘jurisdictional test’.

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Identifying jurisdictional error Is there a ‘conventional’ jurisdictional error? Is there a ‘constructive jurisdictional error’?

eg if a tribunal misunderstood the test it had to apply, ie didn’t apply the test correctly or ask itself the right question. If so, the tribunal has made a jurisdictional error. (See, eg, R v Connell.)


ERROR OF LAW ON THE FACE OF

THE RECORD

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Error on the face of the record An exception – the

ONLY exception - to the traditional doctrine of jurisdictional error

Any error of law is judicially reviewable if it appears plainly on the face of the record

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Error of law on the face of the record: Historical development

R v Northumberland Compensation Appeals Tribunal; ex p Shaw Record = ‘formal set of documents

comprising the court’s proceedings’ includes initiating documents,

pleadings (if any), and the adjudication

evidence and judicial reasoning not included unless expressly incorporated

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Error on the face of the record

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Error of law on the face of the record: Historical development

Baldwin v Francis Ltd v Patents Appeal Tribunal ‘a record is not just the formal order, but .. all

those documents which appear …to be the basis for the decision’

R v Knightsbridge Crown Court ex p International Sporting Club (London) Ltd reasons in transcript of oral judgment of court

part of the record Commissioner of Police v District Court of NSW

transcript, including judicial reasoning part of the record

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Error on the face of the record ‘The next step is to determine what constitutes the

record. There is no fixed rule which requires the same answer to be given in every case. It is for the court undertaking the review to determine what constitutes the record in the particular case but this is not in any way to countenance a roving commission through the materials in a case in an attempt to discover an error of law.’

Hockey v Yelland (1984) 157 CLR 124 per Wilson J.

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Error on the face of the record

The determination of the precise documents which constitute ‘the record’ of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. Craig v South Australia (1995) 184 CLR 163;

69 ALJR 873 at 879.

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Error on the face of the record At common law – the record doesn’t

usually include reasons expressed or transcripts of evidence or the exhibits unless the Tribunal has incorporated the reasons into the record (Craig v SA)

In NSW, see s.69 Supreme Court Act 1970

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SUPREME COURT ACT 1970 - SECT 69

Proceedings in lieu of writs (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of

certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

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Traditional Jurisdictional Error THE VOID/VOIDABLE DISTINCTION

Jurisdictional error = void Non-jurisdictional error = voidable

NOTE. A non-jurisdictional error is, in the absence of some statutory right of appeal or review, reviewable in any event ONLY if it appears plainly on the face of the record of the inferior court or tribunal’s proceedings.

Doctrine of Jurisdictional Error

THE DOCTRINE OF BROAD (EXTENDED)

JURISDICTIONAL ERROR

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Extended jurisdictional error Anisminic Ltd v Foreign Compensation

Commission [1969] 2 AC 147 Craig v State Of South Australia (1995) 184 CLR

163 Minister for Immigration and Multicultural Affairs

v Yusuf (2001) 206 CLR 323 Ellis-Jones I, The Anisminic Revolution in

Australian Administrative Law: An Analysis of Extended Jurisdictional Error (Local Legal, 1998) [See UTSOnline:Admin Law for LLM Thesis copy.]

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Extended jurisdictional error Anisminic Ltd v

Foreign Compensation Commission [1969] 2 AC 147 … Anisminic had owned a mining property in Egypt.

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Anisminic Ltd v Foreign Compensation Commission

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Anisminic – jurisdictional error ‘(i)...the owner of the property; or is

the successor in title of such person; ....and

(ii) that the person referred to as aforesaid and any person who became successor in title of such person ....... were British nationals....’

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Anisminic – jurisdictional error Lord Reid: <173> ..It appears from the

commission’s reasons that they construed this provision as requiring them to inquire, when the applicant is himself the original owner, whether he had a successor in title. So they made that inquiry in this case and held that TEDO was the applicant’s successor in title. As TEDO was not <174> a British national they rejected the appellant’s claim.

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Anisminic-type jurisdictional errors Examples of Anisminic-jurisdictional errors of

law: Acting in bad faith

Making a decision the tribunal has no power to make

Failing to comply with the requirements of procedural fairness… (cont’d)

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Anisminic-type jurisdictional errors Misconstruing the empowering statute or

delegated legislation so that the tribunal fails to deal with the question remitted to it and decides some question not remitted to it; refusing to take into account something which it was required to take into account or basing its decision on some matter which it had no right to take into account (Lord Reid at 171).

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Anisminic-type jurisdictional errors There may be an absence of those formalities or things

which are conditions precedent to the tribunal having any jurisdiction or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry.

Or the tribunal may at the end make an order that it has no jurisdiction to make.

Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice;

… (cont’d)

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Anisminic-type jurisdictional errors Or it may ask itself the wrong questions;

Or it may take into account matters which it was not directed to take into account.

....Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and failed to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity’. Lord Pearce at 195

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Post-Anisminic: United Kingdom Pearlman v Keepers & Governors of Harrow

School [1979] QB 56 In Re Racal Communications [1981] AC 374 O’Reilly v Mackman [1983] 2 AC 237 R v Greater Manchester Coroner ex p Tal

[1984] 3 WLR 643 R v Hull University Visitor ex p Page (1992) 3

WLR 1112

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Post-Anisminic: Australia Thelander v Woodward (1981) Public Service Association of SA v Federated Clerks

Union of Australia, SA Branch (1991) Commissioner of Police v District Court of NSW (1993) Walker v Industrial Court of NSW (1994) Craig v South Australia (1995) Newcastle Wallsend Coal P/L v Court of Coal Mines

Regulation (1997) Londish v Knox Grammar School (1997) MIMA v Yusuf (2001) Plaintiff S157/2002 v Commonwealth of Australia (2003)

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CRAIG v THE STATE OF SOUTH AUSTRALIA Examples of Extended Jurisdictional Errors

An administrative tribunal may fall into error of law which causes it to:

• identify a wrong issue• ask itself a wrong question• ignore relevant material• rely on irrelevant material, and• at least in some circumstances, to make an erroneous

finding or to reach a mistaken conclusion

AND the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority of powers. Such an error of law is jurisdictional error which will invalidate … .

121

CRAIG v THE STATE OF SOUTH AUSTRALIA Examples of Extended Jurisdictional Errors

In Craig the idea of jurisdictional error was found to encompass virtually all of the matters listed in the Administrative Decisions (Judicial Review) Act 1977 (Cth), as picked up in the Judicial Review Act 1991 (Qld), except the catch-all of ‘abuse of power’.

See Craig v South Australia (1995) 184 CLR 163 at 179.

122

Post-Craig: High Court of Australia Minister for Immigration and

Multicultural Affairs v Yusuf (2001) 206 CLR 323 The list in Craig is not exhaustive Those different kinds of errors may well overlap More than one categorisation of the error of law

made may be possible Must show how the error affected the exercise of

power

123

Edwards v Justice Giudice (1999) 94 FCR 561

107 The Court of Appeal of the Supreme Court of Victoria in Returned & Services League of Australia (Vic Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission [1999] VSCA 37 pointed out that in Craig the High Court had said that the error of law in respect of which certiorari is available is one where "the tribunal's exercise or purported exercise of power is thereby affected". The Court of Appeal described this as the "critical expression" in the passage of the judgment of the High Court that I have set out. No doubt it is. The question is what did the High Court mean by this "critical expression"? ...

124

Edwards v Justice Giudice (1999) 94 FCR 561

In my view an error will relevantly "affect" a tribunal's exercise or purported exercise of power if the erroneous finding forms the basis of the decision or is an element in the processes of reasoning that led to the decision. In other words, the point that the High Court was making is that only those errors of law that cause the tribunal to err in the result will lead to the decision being quashed. Per Finkelstein J [Emphasis added]

125

Post Craig – NSWCA Newcastle Wallsend Coal Co Pty Ltd v Court of

Coal Mines Regulation (1997) 42 NSWLR 351 - review of a decision of an inferior court

Londish v Knox Grammar School (1997) 97 LGERA 1 - review of a local council decision

Woolworths Ltd v Hawke [1998] 45 NSWLR 13 - review of a decision of an inferior court

Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 – review of a local council decision

Post Craig – NSWCA Brodyn Pty Ltd t/as Time Cost and Quality v

Davenport (2004) 61 NSWLR 421 – review of a decision of an administrative tribunal belated acceptance by NSW Court of Appeal of the

potential applicability of the Anisminic-Craig formulation of jurisdictional error PROVIDED it can be shown that the impugned error of law is one on which the decision of the case depends

See also Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWCA 22

the doctrine of jurisdictional error

Education

case of jurisdictional

ajurisdictional error

error of law dichotomy

law errors of fact

matters of fact

questions of law

matters of opinion

review matters