Civil Trials Bench Book — Particular proceedings

The Supreme Court exercises statutory and supervisory jurisdiction by way of judicial review with respect to public bodies and officials and various tribunals either by way of appeal or by application. UCPR Pt 59 applies to judicial review proceedings in this court. Proceedings of this nature are allocated to the Administrative Law List of the Common Law Division (see Practice Note SC CL 3 — Common Law Division — Administrative and Industrial Law List).

The two main bases for the court’s jurisdiction to review administrative decisions are:

The court’s jurisdiction in these cases is not based on the merits of the decision, but rather on its legality: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–37 per Brennan J.

In the case of statutory appeals, a plaintiff must identify an error of law or a question of law in the decision sought to be challenged. It is also important to identify the source of the court’s jurisdiction. By contrast, proceedings under s 69 of the Supreme Court Act require either an error of law on the face of the record or a jurisdictional error to be identified.

The limitations on a statutory appeal depend on the wording of the statute which confers the right of appeal to this court. For example, a statutory appeal from the NSW Civil and Administrative Appeals Tribunal requires the plaintiff to identify a “question of law”: see s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

Section 69 of the Supreme Court Act is an important source of this court’s jurisdiction to review decisions of tribunals and other decision-makers in NSW. It creates a statutory jurisdiction which replaces the court’s former jurisdiction to grant relief by way of prerogative writ.

Section 69(3), in its terms, confines the court’s jurisdiction to errors of law that appear on the face of the record. However, the High Court has held that it is not open to Parliament to take away the court’s jurisdiction to grant relief in respect of jurisdictional error. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond State legislative power: Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [100]. Accordingly the Supreme Court’s jurisdiction with respect to jurisdictional errors is not confined to those errors of law which are on the face of the record.

Section 69(3) was amended in 2018 (by the Justice Legislation Amendment Act 2018, Sch 1 cl 21) to address a concern raised in Morgan v District Court of NSW [2017] NSWCA 105 relating to the limitation on the power of the Court of Appeal to make orders finally disposing of a matter (rather than remitting the matter to the lower court concerned).

As to the bodies or persons amenable to certiorari in judicial review proceedings, Rothman J concluded that if a person is acting as a “court or tribunal” within the terms of s 69(3), and therefore within the terms of s 69(4), they are amenable to the writ of certiorari: Malek Fahd Islamic School Ltd v Minister for Education and Early Learning [2022] NSWSC 1176 at [155]–[156].

The distinction between those errors of law that amount to jurisdictional errors and those that do not is not easy to draw or to articulate: see the discussion in Kirk v Industrial Court of NSW, above, at [66]–[73]. Various authoritative statements of the distinction have been made but do not remove the difficulty of classification. Under s 69 of the Supreme Court Act, this court has jurisdiction only to grant relief in respect of errors of law that are either on the record or which constitute jurisdictional errors.

For this reason it is necessary for a plaintiff to form a view as to whether he or she relies on a particular error as amounting to a jurisdictional error or merely as an error of law on the face of the record. If it is latter, there will rarely be any justification for tendering anything beyond the record, which includes the reasons, if any, of the tribunal or other decision-maker: s 69(4) of the Supreme Court Act.

Although the following is not exhaustive, it provides an indication of the types of errors that can amount to errors of law:

The jurisprudence in this area is considerable. It is not possible to summarise it here. However, practitioners and litigants are referred to M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th edn, Thomson Reuters, 2017, which provides a comprehensive review of the relevant principles and case law. The leading cases in administrative law include the following:

The statutes under which decisions are commonly the subject of statutory appeals or applications for judicial review include the following, of which the following recent decisions of the NSW Court of Appeal are referred to by way of example: