Home | © 2018 GA Publishing Mosman Sydney for legal practitioners


Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273. Meagher JA.

40 Having said that, proceedings under s 69 of the Supreme Court Act seeking relief in the nature of certiorari to set aside orders of the District Court do not involve or require the removal of proceedings from that court into the Supreme Court.

Whilst in medieval times the writ of certiorari was used to remove proceedings to the King's Bench so that those proceedings could be heard in that court, by the beginning of the eighteenth century the primary use of the writ was as an instrument for review of decisions of inferior courts and tribunals: see Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 at 175-176; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [98]-[106], [256]-[259]; Kirk at [59]; L Jaffe and E Henderson, "Judicial Review and the Rule of Law: Historical Origins" (1956) 72 Law Quarterly Review 345, 350-351, 357; G Sawer, "Error of Law on the Face of an Administrative Record" (1954) 3 University of Western Australia Annual Law Review24, 26-33.

The use of the writ of certiorari to remove and hear was recognised by provisions such as s 47 of the District Court Act 1912. However, that provision was repealed in 1973 and now the transfer or removal of proceedings between courts is regulated by statute. Writing in 1995, the High Court observed in Craig (at 175, fn 55) that the use of the writ of certiorari to remove and hear would now seem to be obsolete.

41 Whilst s 69 preserved the authority of this Court to grant relief in the nature of certiorari to quash for error, it is not necessary for the grant of such relief that the "record" of the inferior court or tribunal whose decision is the subject of the application be removed into this Court: Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 at [4]. Relief in the nature of certiorari is granted in proceedings commenced in the original jurisdiction of the Court and assigned, in relation to specified courts and tribunals, to the Court of Appeal: s 48(2) of the Act. At the time these proceedings were commenced, UCPR r 6.12A(c) provided for a copy of the decision and reasons, if any, of the relevant court or tribunal to be annexed to the summons commencing the proceedings.

Previous page: Carrying on a business     Next page: Chronic fatigue syndrome

© 2018 GA Publishing Mosman Sydney | piets/wcms | Account

Common Law Monthly Summaries

12 editions $385 incl GST

Subscribe Sample