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Jurisdictional error

"...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:"

Altos v Registrar WCC & Anor [2008] NSWSC 148. Malpass AsJ. 29.02.08


Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720. Hidden J. 30.11.10.

53 After I reserved judgment in the matter, counsel brought my attention to the recent decision of the High Court in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, 239 CLR 531. It is unnecessary to analyse that lengthy and important decision, except to observe that it examined the notion of jurisdictional error in the context of the review of decisions of inferior courts, focusing on the distinction between errors within jurisdiction and errors outside it.

In the course of so doing, the Court referred to the principles governing the review of the decision of an administrative tribunal or decision maker enunciated in Craig v South Australia (1995) 184 CLR 163. The Court said at [67]:

“The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between ‘on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ’ [at 176]. The Court said [at 179] that:

‘If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, 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 or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’”

"Clearly, that passage applies to the present case."

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