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Judicial review

Supreme Court Act 1970 (NSW) section 69 >>

Altos v Registrar WCC & Anor [2008] NSWSC 148. Malpass AsJ.

"...it needs to be borne in mind that an application for judicial review requires the demonstration of either jurisdictional error or error of law on the face of the record:"

NRMA Insurance Limited v Ainsworth [2011] NSWSC 344. Rothman J.

16 The jurisdiction to issue certiorari is an inherent power of the Court that it has possessed since at least 1824.

By operation of s 69 of the Supreme Court Act 1970, the Court continues to have the jurisdiction to grant certiorari: see s 69(1)(c) of the Supreme Court Act .

The foregoing subsection continues the jurisdiction to grant certiorari but, as a matter of form, prohibits the issue of the writ and substitutes, for that writ, relief or remedy in or to the same effect by way of judgment or order: see s 69(1)(d), (e) and (f) of the Supreme Court Act.

17 The provisions of s 69 of the Supreme Court Act do not limit the jurisdiction of this Court to issue certiorari, or orders in the nature of certiorari, and do not limit the jurisdiction of the Court to exercise its powers of judicial review, and, therefore, no issue of validity of that section arises: Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.

18 By s 69(3) and s 69(4) of the Supreme Court Act , the Court's jurisdiction to grant orders in the nature of certiorari include the jurisdiction to quash the ultimate determination, if that determination were to have been made on the basis of an error of law on the face of the record, which is defined to include the reasons expressed for that ultimate determination.

In that respect, the provisions of s 69(3) and s 69(4) of the Supreme Court Act arguably broaden the jurisdiction to grant certiorari, or orders in the nature thereof, beyond that which was available under the common law: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163.

Nevertheless, the limits on the issue of the writ, imposed by the nature of the writ in common law, still apply.

19 Certiorari, or orders in the nature thereof, do not issue as a form of appeal.

Appeals are a statutory remedy, generally broader than the common law right of review.

In Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, Brennan J said, at 35-36:

"The duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.

If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, and, subject to legal control for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.

In Australia, the modern development and extension of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power.

Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottingham Shire County Council v Secretary of State for the Environment [1986] AC 240 at 249.

Acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."

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