Applications for judicial review of administrative decisions, including decisions of tribunals

[5-8500] Introduction

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:

1. 

statutory appeals (where the jurisdiction of the court depends on an error of law, or a question of law), other than appeals from the Local or District Courts; and

2. 

proceedings under s 69 of the Supreme Court Act 1970 (NSW): specifically challenges based on an error of law on the face of the record or jurisdictional error.

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. It provides:

69 Proceedings in lieu of writs

(1) 

Where formerly:

(a) 

the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) 

in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c) 

the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) 

shall not issue any such writ, and

(e) 

shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) 

proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(2) 

Subject to the rules, this section does not apply to:

(a) 

the writ of habeas corpus ad subjiciendum,

(b) 

any writ of execution for the enforcement of a judgment or order of the Court, or

(c) 

any writ in aid of any such writ of execution.

(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.

(5) 

Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

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 errors: Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 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.

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:

  • failing to take into account a mandatory relevant consideration

  • taking into account an irrelevant consideration

  • failure to give reasons, or adequate reasons

  • applying the incorrect statutory test or otherwise failing to comply with the terms of the applicable legislation

  • failing to give the unsuccessful party an opportunity to be heard (otherwise known as a denial of procedural fairness, or of natural justice)

  • legal unreasonableness, and

  • lack of evidence to support a finding (also known as the “no evidence ground”).

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:

  • Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (what the “record” includes; jurisdictional error)

  • Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40 (identification of mandatory relevant considerations and generally)

  • Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (principles of natural justice)

  • Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 (jurisdiction of State Supreme Courts with respect to jurisdictional error, notwithstanding wording of privative clauses; distinction between jurisdictional error and errors of law which are not jurisdictional errors)

  • Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (the concept of legal unreasonableness)

  • Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (basis for impuging a decision through judicial review; relevance of irrationality)

  • Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 (procedural fairness)

  • Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Mifsud v Campbell (1991) 21 NSWLR 725; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (adequacy of reasons)

  • Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (scope of statutory obligation to give reasons)

  • Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (failure to exercise jurisdiction),

  • Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (apprehension of bias).

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:

1. 

Motor Accidents Compensation Act 1999 (NSW)

  • AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (failure to exercise statutory function)

  • Jubb v Insurance Australia [2016] NSWCA 153 (constructive failure to exercise jurisdiction)

  • Ali v AAI Ltd [2016] NSWCA 110 (scope of statutory duty to give reasons; whether there was a failure to consider relevant evidence)

  • Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 (failure to take into account relevant considerations),

  • Alliance Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 (failure to take into account relevant considerations; whether a failure to refer to particular evidence can constitute failure to take into account a relevant consideration).

2. 

Motor Accidents (Lifetime Care and Support Act) 2006 (NSW)

  • Insurance Aust Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 (scope of statutory obligation to provide reasons; whether constructive failure to exercise functions).

[5-8510] Practical aspects of commencing and conducting proceedings for judicial review

Time limit for commencing proceedings

Proceedings by way of statutory appeal from an administrative tribunal pursuant to the provisions of the Act constituting the relevant tribunal are governed by UCPR Pt 50. Such appeals must be instituted within 28 days: UCPR r 50.3. In such cases a statement of the grounds relied on must be served with the summons: UCPR r 50.4.

Parties

Unless there is a statutory provision to the contrary, the relevant tribunal, public body or official must be made a party to the proceedings and served with a copy of the summons. Where such tribunal or public body or official files a submitting appearance such tribunal, public body or official need not be represented at any directions hearing or substantive hearing and is automatically excused from further attendance: UCPR rr 6.10 and 6.11. If another party wishes to seek an order for costs against a submitting defendant, it must prior to such directions hearing, or within such further time as the court may allow, give notice in writing to such submitting defendant setting out the grounds upon which such costs order will be sought: UCPR r 6.11.

Evidence

Statutory appeals concerning errors, or questions of law

In the case of statutory appeals concerning errors of law the parties are referred to UCPR r 50.14. Where there is no allegation of denial of procedural fairness, in the ordinary course the only evidence necessary is a copy of the reasons below, a copy of the transcript in the proceedings in the court below and a copy of any exhibit or affidavit or other documents from the proceedings below “that the plaintiff wishes to be considered at the hearing of the appeal” (UCPR r 50.14(1)(c)) bearing in mind the limited nature of the appeal.

Appeals limited to errors of law on the face of the record

In proceedings where the grounds of review are limited to errors of law on the face of the record (such as proceedings unders 69 of the Supreme Court Act), the evidentiary material should be limited to material that constitutes the “record”: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at 180–183. Usually the record does not include the evidence that was adduced before the decision-maker or the transcript of the hearing, but does include the reasons, if any, of the “court or tribunal for its ultimate determination”: s 69(4) of the Supreme Court Act.

Appeals based on jurisdictional error

If a plaintiff contends that a decision or action is affected by jurisdictional error then that error should be identified as such in the summons. If reliance is sought to be placed on material beyond that which constitutes the record, the body of the affidavit to which such material is annexed or exhibited must identify the jurisdictional error alleged and the connection between the additional material and the alleged error.

“No evidence” ground

Where the plaintiff relies on a “no evidence” ground, it is not necessary, in the absence of a direction to that effect, for the plaintiff to tender all the evidence before the decision maker in order to prove the absence of evidence to support a finding. Instead, in the summons, the plaintiff should identify with particularity the finding of the tribunal or decision-maker which the plaintiff contends was not supported by any evidence.

Legislation

  • Civil and Administrative Tribunal Act 2013 s 83(1)

  • Motor Accidents Compensation Act 1999

  • Motor Accidents (Lifetime Care and Support Act) 2006 (NSW)

  • Supreme Court Act 1970 s 69

  • UCPR rr 6.10, 6.11, Pt 50, rr 50.3, 50.4, 50.14, Pt 59

Further references

  • M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th edn, Thomson Reuters, 2017