THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SUPERIOR COURTS
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THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SUPERIOR COURTS

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First Published: (2007) 12 LGLJ 164 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not ...

First Published: (2007) 12 LGLJ 164 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.

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THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SUPERIOR COURTS THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SUPERIOR COURTS Document Transcript

  • ________________________________________________________________The Anisminic doctrine of extended jurisdictionalerror in New South Wales superior courtsIan Ellis-Jones* First Published (2007) 12 LGLJ 164 All Rights Reserved________________________________________________________________ In Australia, despite some intermittent enthusiasm for the Anisminic doctrine of “extended jurisdictional error”, most Australian superior courts continue to maintain, or at least pay lip-service to, a distinction between jurisdictional and non-jurisdictional errors of law. This has been particularly the case in New South Wales where, even since the landmark High Court of Australia case of Craig v South Australia, the State’s two superior courts, the Supreme Court (together with the Court of Appeal) and the Land and Environment Court, respectively, generally decide matters before them involving jurisdictional error using the traditional doctrine of jurisdictional error, notwithstanding that Craig is increasingly, and at times incongruously, cited as authority for their conclusions. Also, despite some judicial authority that would not appear to take into account the qualifications and reservations expressed in Craig, the preponderance of NSW judicial authority makes it clear that not all Anisminic-type errors of law will be jurisdictional in the broad or extended sense but only one on which the decision of the case depends. This would be so, for example, in the case of a failure to take into account a relevant consideration that the decision maker was duty bound to take into account, where compliance with the requirement was a precondition of the existence of the power to make the decision. In the case of an erroneous finding, the erroneous finding would need to form the basis of the decision or otherwise be an element in the process of reasoning that led to the decision for the error to be jurisdictional in the Anisminic sense.INTRODUCTIONIn Anisminic Ltd v Foreign Compensation Commission1 the House of Lordsdecided by a majority of three to two2 that the Foreign Compensation* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, SeniorLecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers,Sydney.1 [1969] 2 AC 147.2 Lord Reid, Lord Pearce and Lord Wilberforce (adopting the same view as the trial judge,Browne J); Lord Morris of Borth-y-Gest and Lord Pearson dissenting. (Lord Pearson, although
  • 2Commission had made a jurisdictional error - albeit of an “apparently extreme”3type - in holding that Anisminic was not entitled to claim compensation.4 TheLords held that the Commission had misunderstood the meaning of “successor intitle” and, in considering its nationality, had exceeded its jurisdiction by taking intoaccount an irrelevant or extraneous consideration.Lord Reid, in a now famous and oft-cited passage, said in regard to “excess ofjurisdiction”: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.5Lord Pearce, preferring to use the single expression “lack of jurisdiction” toembrace traditional jurisdictional errors6 as well as various errors of law nottraditionally regarded as going to jurisdiction, said:holding that the Commission had not made any jurisdictional error, was nevertheless of the viewthat an error of the kind found by the majority to have been made by the Commission would havegone to jurisdiction.)3 B C Gould “Anisminic and Jurisdictional Review” [1970] Pub L 358 at 359.4 The company had owned a valuable mining property in Egypt which had been sequestrated bythe Egyptian government during the Suez crisis of 1956-57. A sum of money was subsequentlymade available by the Egyptian government for distribution by the British government at thelatter’s discretion. The Foreign Compensation Commission had rejected the company’s claim forcompensation on the ground that the company had not satisfied the requirements of a statutoryorder in council which required, among other things, that the company “and” any successor in titlewere British nationals at certain specified dates. In the case of Anisminic, its property had beensold by the Egyptian government to an Egyptian organization (TEDO) which, the ForeignCompensation Commission held, was not a British national.5 [1969] 2 AC 147 at 171.6 A jurisdictional error, in traditional terms, is of three kinds: a want (or lack) of jurisdiction, anexcess of jurisdiction, and a wrongful failure or refusal to exercise jurisdiction.
  • 3 Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.7Lord Wilberforce spoke in terms of a tribunal staying within the proper area of itsjurisdiction: In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited. There is always an area, narrow or wide, which is the tribunal’s area; a residual area, wide or narrow, in which the legislature has previously expressed its will and into which the tribunal may not enter. Equally ... [there is] the requirement that a decision must be made in accordance with principles of natural justice and good faith. ... The question, what is the tribunal’s proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability upon its decisions. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal and of its powers, they cannot preclude examination of that extent.8It was subsequently held in Re Racal Communications Ltd9 that Anisminic hadindeed abolished the distinction between jurisdictional and non-jurisdictionalerrors of law, but only in respect of statutory tribunals and authorities, not inrespect of inferior courts.10 Shortly thereafter, in O’Reilly v Mackman11 Lord7 [1969] 2 AC 147 at 195.8 [1969] 2 AC 147 at 207.9 [1981] AC 374.10 The Foreign Compensation Commission was, of course, an administrative tribunal, not aninferior court. Nevertheless, Lord Diplock’s approach was, with respect, inconsistent with theposition expressly recognised by the Lords in Anisminic that there was still a category of non-jurisdictional error. See also R v Surrey Coroner; Ex parte Campbell [1982] QB 661 at 675; BHP
  • 4Diplock (with whom all members of the House of Lords agreed) went on to holdthat the traditional distinction between jurisdictional and non-jurisdictional errorsof law had also been abolished for inferior courts as well as administrativetribunals.12 In England, by 1984, the restriction in relation to inferior courts, to theextent (if any) to which it still existed in that country, had gone completely.13ANISMINIC IN AUSTRALIAThus, the High Court of Australia was correct to point out in the landmark case ofCraig v South Australia:14 [T]he distinction between jurisdictional error and error within jurisdiction has been seen as effectively abolished in England ... .15However, the court was quick to point out: That distinction has not, however, been discarded in this country … .16Indeed, only a few years earlier, Brennan J had this to say about the matter inPublic Service Association of South Australia v Federated Clerks Union ofAustralia (South Australia Branch):17Petroleum Pty Ltd v Balfour (1987) 180 CLR 474 at 480-1.11 [1983] 2 AC 237.12 This was expressly acknowledged by the High Court of Australia in Craig v South Australia(1995) 184 CLR 163 at 178-9 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.13 See R v Greater Manchester Coroner; Ex parte Tal [1984] 3 WLR 643. Thus, in England allerrors of law involve jurisdictional errors: see R v Hull; Ex parte Page [1993] AC 682.14 ((1995) 184 CLR 163.15 (1995) 184 CLR 163 at 179.16 (1995) 184 CLR 163 at 179. See, in particular, Public Service Association (SA) v FederatedClerks Union (1991) 173 CLR 132 at 141, 149, 165; R v Gray; Ex parte Marsh (1985) 157 CLR351 at 371-372. See also Houssein v Under Secretary of Industrial Relations and Technology(NSW) (1982) 148 CLR 88 at 93-95; Hockey v Yelland (1984) 157 CLR 124 at 130; R v Gray; Exparte Marsh (1985) 157 CLR 351 at 374-377. In Darling Casino Limited v New South WalesCasino Control Authority (1997) 191 CLR 602 at 633-4 Gaudron and Gummow JJ simply notedthe wider use of the expression "jurisdiction" referred to in Anisminic Ltd v Foreign CompensationCommission [1969] 2 AC 147 per Lord Reid at 171 and Lord Pearce at 195.17 (1991) 173 CLR 132.
  • 5 This Court has not accepted Lord Diplocks view that the distinction between jurisdictional and non-jurisdictional errors was for practical purposes abolished by the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.18However, using its own “local” version of the Anisminic principle (actually, a veryliberal version of the second type of traditional jurisdictional error, being “excessof jurisdiction”), which predated the House of Lords decision in Anisminic, theHigh Court has been able throughout the years to categorise virtually every errorof law as jurisdictional and intervene and strike down virtually any exercise orpurported exercise of power which the court deems to be an abuse of power justas easily as its British counterparts.19 In that regard, the Australian courts, for themost part, have been content to proceed on a case-by-case basis, guided onlyby such nebulous and self-serving parameters as “misconstruing the statute thesource of jurisdiction”, “misconceiving one’s duty”, “failing to comply with somerequirement essential to its valid or effectual performance”, “not applying oneselfto the question which the law prescribes”, “misunderstanding the nature of theopinion to be formed” and “being actuated by extraneous considerations”, all ofwhich are readily capable of judicial massage and manipulation and thereforequite uncertain in their application.In Craig v South Australia the respondent sought relief in the nature of certiorarito quash a decision by a district court judge to stay the prosecution of theappellant. The Full Court of the Supreme Court of South Australia had quashedthe stay order for error of law. The High Court (per Brennan, Deane, Toohey,Gaudron and McHugh JJ) allowed the appellant’s appeal, finding that the trialjudge had not erred but that the Full Court had in having regard to the transcript18 (1991) 173 CLR 132 at 141. See also Deane J at 149, Dawson and Gaudron JJ at 160 andMcHugh J at 166. The latter went so far as to say, “this Court has rejected the proposition that forpractical purposes there is no distinction between jurisdictional and non-jurisdictional errors oflaw”.19 See eg R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; R vConnell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; R v Australian StevedoringBoard; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Public ServiceAssociation of South Australia v Federated Clerks Union of Australia (South Australia Branch)(1991) 173 CLR 132; Coco v R (1994) 179 CLR 427.
  • 6of the proceedings before the trial judge.20As mentioned above, the Court stated that the distinction between jurisdictionaland non-jurisdictional error had not been discarded in Australia as in England, atleast as regards inferior courts and statutory tribunals (as opposed toadministrative tribunals).21 The Court, after quoting22 the well-known passage inLord Reid’s speech in Anisminic23 about addressing the wrong issue or askingoneself the wrong question, and after noting that the distinction betweenjurisdictional and non-jurisdictional errors of law had not been abolished inAustralia, went on to confine Lord Reid’s comments to the judicial review ofdecisions and proceedings of administrative tribunals, said: … [W]e consider that Lord Reid’s comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari. ...24Insofar as administrative tribunals were concerned, the High Court had this tosay: If such 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.25However, such an error of law would not, in the Court’s opinion, “ordinarily”constitute jurisdictional error in the case of an inferior court.26 Nevertheless, theCourt made it clear that an inferior court will falls into jurisdictional error if itmistakenly asserts or denies the existence of its jurisdiction or if itmisapprehends or disregards the nature or limits of its functions or powers in a20 The result was that the High Court concluded that the Full Court of the Supreme Court of SouthAustralia had been wrong in setting aside the decision of the District Court judge as the judge’sorder had been made within jurisdiction.21 (1995) 184 CLR 163 at 179.22 (1995) 184 CLR 163 at 178.23 [1969] 2 AC 147 at 171.24 (1995) 184 CLR 163 at 179.25 (1995) 184 CLR 163 at 179.26 (1995) 184 CLR 163 at 180.
  • 7case where it correctly recognises that jurisdiction does exist.27But, insofar as administrative tribunals are concerned, what exactly is meant bythe words “and the tribunal’s exercise or purported exercise of power [sic] isthereby affected”? In the Full Federal Court decision of Edwards v JusticeGiudice28 Finkelstein J expressed the opinion that an error of law will relevantly“affect” a tribunal’s exercise or purported exercise of power “if the erroneousfinding forms the basis of the decision or is an element in the process ofreasoning that led to the decision”.29 The comments of Finkelstein J aresomewhat reminiscent of those of Lord Denning MR in the English Court ofAppeal decision of Pearlman v Keepers and Governors of Harrow School:30 The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction ... .31Similarly, in the NSW Land and Environment Court decision of RosemountEstates Pty Ltd v Cleland32 Waddell AJ spoke of “an error of law in the exerciseof jurisdiction which is fundamental to the finding or recommendation of the bodyreviewed which leads to a manifestly unreasonable result”.33However, as was pointed out in Minister for Immigration and Multicultural Affairsv Yusuf34 it is first necessary to understand what is meant by "jurisdictional error"under the general law and the consequences that follow from a decision-makermaking such an error. McHugh, Gummow and Hayne JJ said: It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia ..., if an administrative tribunal (like the Tribunal) “falls into an error of law which causes it to identify a wrong issue, to ask itself27 See (1995) 184 CLR 163 at 180.28 (1999) 94 FCR 561.29 At (1999) 94 FCR 591.30 [1979] QB 56.31 [1979] QB 56 at 70.32 (1995) 86 LGERA 1.33 (1995) 86 LGERA 1 at 17.34 (2001) 206 CLR 323.
  • 8 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”. “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive ... . Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law ... .”35Further, their Honours said: ... In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers”. If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.36ANISMINIC IN NEW SOUTH WALESThe Anisminic doctrine of broad or extended jurisdictional error has not provedoverly popular with NSW superior courts - either before or after Craig. InDarkingung Local Aboriginal Land Council v Minister for Natural Resources [No2]37 Stein J (as he then was) in the NSW Land and Environment Court had this tosay about the Anisminic doctrine: [I]t is interesting to note that the Anisminic doctrine appears to have had little or no impact in Australia. It has been almost totally ignored by Australian appellate courts. Surprisingly, and with few exceptions, it has been little referred to or35 (2001) 206 CLR 323 at 351 [82], fns omitted.36 (2001) 206 CLR 323 at 351-2 [83].37 (1987) 61 LGRA 218.
  • 9 quoted. Certainly, no Australian court has recognised and applied the abolition of the distinction between jurisdictional and non-jurisdictional errors of law.38Several years later, and after the High Court decision in Craig, in the NSW Courtof Appeal decision of Londish v Knox Grammar School39 the court was calledupon to consider whether a particular privative clause40 precluded judicial reviewon the ground of, relevantly, jurisdictional error in the “wider [Anisminic] sense”.Stein JA (with whom Mason P and Meagher JA agreed) distinguished Anisminicon the following basis: ... The appellants submit that “s104A does not protect against a challenge based on excess of jurisdiction in the wider sense... an ultra vires act, a decision that is beyond power.” Talbot J held that the issue raised by the applicants/appellants was an error going to jurisdiction. Accordingly, he opined that judicial review was not excluded by s104A. In so holding, he relied in part on obiter dicta in the joint judgment of the High Court in Craig v The State of South Australia that an administrative tribunal commits a jurisdictional error reviewable by a court if, inter alia, it makes an erroneous finding, reaches a mistaken conclusion or takes into account irrelevant considerations. In my view, Craig is not of assistance on the issue of s104A because it concerned a claim of jurisdictional error by an inferior court and not the interpretation of a privative clause, whereas the present case concerns the construction of the statutory provision limiting review by the court of the decision of a council.41So, as easily as that, his Honour avoided having to apply the “obiter dicta” [hiswords] in Anisminic. Of course, his Honour was technically correct about thecomments in the joint judgment of the High Court being obiter dicta, bearing inmind that the decision under review in Craig was one made by an inferior court.42After all, had not the High Court in Craig confined Lord Reid’s comments aboutextended jurisdictional error to administrative tribunals on the basis that thedecision under review in Anisminic was one made by an administrative tribunal?38 (1987) 61 LGRA 218 at 228. See, generally, Ellis-Jones, The Anisminic Revolution inAustralian Administrative Law: An Analysis of Extended Jurisdictional Error (Local Legal, 1998).39 (1997) 97 LGERA 1.40 Section 104A, Environmental Planning and Assessment Act 1979 (NSW). The comparableprovision is now s 101 of that Act.41 (1997) 97 LGERA 1 at 4-5, fns omitted.42 The District Court of South Australia.
  • 10Now, back to Darkingung [No 2]. In that case his Honour had held that a 43privative clause which purported to prevent, among other things, judicial reviewof a ministerial certificate was effective to oust judicial review except incircumstances of an excess of jurisdiction (more-or-less in traditional terms) or anultra vires act including bad faith in all its connotations but not including judicialreview on the grounds of manifest unreasonableness44, the taking into account ofirrelevant considerations, the failure to take account of relevant considerations(unless they happened to be material to bad faith) or review on the basis of anybreach of the rules of procedural fairness. His Honour was clearly of the view thatjurisdictional error did not extend to those errors of law corresponding with broador extended ultra vires (other than bad faith or other errors material to badfaith).45Interestingly, in previous proceedings relating to the construction of the samelegislation46 - Darkingung Local Aboriginal Land Council v Minister for NaturalResources47 - Bignold J in the NSW Land and Environment Court appeared todisplay considerable enthusiasm for the Anisminic doctrine of extendedjurisdictional error. His Honour, after citing excerpts from the oft-quoted speechesof Lords Reid and Wilberforce from Anisminic48, referred to Church ofScientology Inc v Woodward49 and Osmond v Public Service Board of New SouthWales50 as authority for the proposition that, in the absence of clear words, aprivative clause would not protect manifest jurisdictional errors, ultra vires acts or43 Section 36(8), Aboriginal Land Rights Act 1983 (NSW). That subsection provided that acertificate issued by a minister, stating that certain land the subject of a claim under s 36 of thatAct was needed or likely to be needed for an essential public purpose, was to be accepted asfinal and conclusive evidence of the matters set out in the certificate and was not liable to appealor review.44 cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.45 Cases of this kind are now more likely to be decided on the basis that the impugned decisiondid not satisfy the Hickman principle (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR598 per Dixon J at 615).46 Section 36(8), Aboriginal Land Rights Act 1983 (NSW).47 (1985) 58 LGRA 298.48 [1969] 2 AC 147 at 171 and 210 respectively.49 (1982) 154 CLR 25.50 [1984] 3 NSWLR 447.
  • 11a denial of natural justice.51 His Honour saw those two decisions as reflecting“the high authority with which Anisminic is regarded by Australian courts”.52With the greatest respect to Bignold J, it is not easy to see how his Honour couldregard either of those authorities as judicial support for the Anisminic doctrine ofextended jurisdictional error. First, the Scientology case was decided withoutreference to the House of Lords decision in Anisminic. Secondly, although GlassJA and Kirby P (the latter in dissent) referred to Anisminic in Osmond, the mostthat could be said is that the NSW Court of Appeal in that case acknowledgedthat since Anisminic the former distinctions between statutory appeal on aquestion of law and judicial review for a misdirection in law or statutorymisconstruction had become somewhat blurred.53Whilst it is fairly clear that his Honour approved of Lord Diplock’s decision in ReRacal Communications Ltd54 in relation to the Anisminic doctrine, and favoured awide interpretation of what constitutes a jurisdictional error, his decision relatedmore to the question of whether the particular statutory provision ousted thejurisdiction of the court to judicially review the conclusive certificate issued by theminister than the actual grounds upon which the certificate could be declared anullity. Indeed, having found that the certificate was not entitled to the protectionafforded by the relevant statutory provision on the ground that it disclosed anerror on its face, it was not necessary for his Honour to decide whether theAnisminic doctrine of extended jurisdictional error applied.As mentioned above, in Darkingung [No 2] Stein J expressly decided that judicialreview of the conclusive certificate was excluded on the basis of “manifest51 (1985) 58 LGRA 298 at 324.52 (1985) 58 LGRA 298 at 325.53 [1984] 3 NSWLR 447 at 466.54 [1981] AC 374. His Honour also cited, with apparent approval, R v HM Treasury [1985] 1 AllER 589, a case in which it was held that a “conclusive” provision would not prevent judicial reviewon the ground of Wednesbury unreasonableness”. His Honour also expressed the view that badfaith would also vitiate any decision in relation to the issue of a “conclusive certificate”.
  • 12unreasonableness, the taking into account of relevant considerations, unless ...they happen to be material to bad faith”.55ANISMINIC IN THE NSW COURT OF APPEALOne of the boldest endorsements of the Anisminic doctrine of extendedjurisdictional error was the NSW Court of Appeal decision in Thelander vWoodward.56 In that case, Woodward J, sitting as a royal commissioner, hadcommitted a witness for contempt of the commission for failing to answerquestions put to him. In arriving at his decision, the royal commissioner took intoaccount evidence other than what the commission had seen and heard whilst thewitness was in the witness box. The Court of Appeal held that the commissionerhad travelled outside his jurisdiction by taking into account matters which he hadno right to consider and made an order quashing his decision. Reynolds JA (withwhom Moffitt P and Glass JA agreed) said: There is ... no question but that the Commissioner embarked upon an inquiry in respect of which he had jurisdiction. It is well settled, however, that a tribunal of limited jurisdiction which properly embarks upon an inquiry within its jurisdiction may nevertheless travel outside that jurisdiction in the course of it. Various formulations have been made as to what errors are to be regarded as coming within this category of jurisdictional error and the question is whether the decision which results is merely erroneous or invalid. The crucial decision which has to be made is whether what is seen to be an error was done within the area of jurisdiction remitted to the tribunal or is properly to be regarded as done outside it: cf per Lord Wilberforce, Anisminic [1969] 2 AC 147, at p 207 et seq. ... In the present case ... the Commissioner asked himself the wrong question and travelled outside the remitted jurisdictional area. In making the decision he did, the Commissioner took into account matters he had no right to take into account.55 (1987) 61 LGRA 218 at 230. His Honour also excluded judicial review on the ground of denialof natural justice (procedural fairness). However, in Worimi Local Aboriginal Land Council vMinister Administering the Crown Land Act (1991) 72 LGRA 149, his Honour held that the rules ofprocedural fairness (relevantly, the hearing rule) applied to a decision by the minister to issue theconclusive certificate. In so doing, he overruled his earlier decision in Darkingung [No 2] insofaras it was authority for the proposition that judicial review of the certificate was excluded on theground of denial of procedural fainess. Subsequently, in Darkingung Local Aboriginal LandCouncil v Minister Administering the Crown Lands Act (L & E Ct, Stein J, No 40078/86, 30 July1991, unreported), his Honour affirmed his decision in Darkingung [No 2] as regards theproposition that judicial review was excluded on the grounds of manifest unreasonableness or thetaking into account of irrelevant considerations (in the absence of bad faith).56 [1981] 1 NSWLR 644.
  • 13 Whilst this is not a matter of jurisdiction in the narrow sense, it is within the wider sense as expounded by Lord Reid in Anisminic [1969] 2 AC 147, at p 171. For this reason, I think that an order to quash should be granted.57With respect to his Honour, whilst it is clear that the commissioner took intoaccount an irrelevant consideration, it is not entirely clear just what was the“wrong question” which the royal commissioner asked himself. It is also not clearwhether the taking into account of the irrelevant consideration was itself theasking the wrong question or something different altogether. In any event, to theextent to which the commissioner did ask himself the wrong question, such anerror had been recognised as one going, or potentially going, to jurisdictionbefore the Anisminic case.58 Nevertheless, the clear and unambiguous statementby the court that the taking into account of an irrelevant consideration - a matterwhich [the commissioner] “had no right to take into account”59 - resulted in anexcess of jurisdiction is perhaps as bold an endorsement of the Anisminicdoctrine as one could hope to find.In Macksville & District Hospital v Mayze60 Kirby P (as he then was) stated thatsince Anisminic “it has generally been considered both in England and Australiathat a denial or breach of the rules of natural justice is a jurisdictional error whichrenders the impugned decisions null and void”.61 His Honour’s invocation ofAnisminic as authority for the proposition stated recalls the oft-cited dicta of LordsReid and Pearce in Anisminic in relation to the jurisdictional effect of a failure tocomply with the rules of natural justice.62 In particular, his Honour’s use of thewords “jurisdictional error” show more than perfunctory support for the Anisminicprinciple (at least in relation to the legal consequences of a failure to comply with57 [1981] 1 NSWLR 644 at 655.58 See, eg, Board of Education v Rice [1911] AC 179; R v War Pensions Entitlement AppealTribunal; Ex parte Bott (1933) 50 CLR 228; Ex parte Hebburn Ltd; Re Kearsley Shire Council(1947) 47 SR (NSW) 416;Toronto Newspaper Guild v Globe Printing Co (1953) 3 DLR 561; R vMinister of Housing and Local Government; Ex parte Chichester RDC [1960] 1 WLR 587. Seealso R v Dunphy; Ex parte Maynes (1978) 139 CLR 482.59 [1981] 1 NSWLR 644 at 655.60 (1987) 10 NSWLR 708.61 (1987) 10 NSWLR 708 at 713.62 [1969] 2 AC 147 at 171 and 195, respectively.
  • 14the rules of natural justice). Having said that, his Honour’s invocation ofAnisminic was to some extent unnecessary in any event, as pre-Anisminic casessuch as Ridge v Baldwin63 had already established that the legal effect of afailure to comply with the requirements of natural justice was that the particulardecision was void, but his dicta do tend to suggest support for a broaderdefinition of jurisdictional error.In Greiner v Independent Commission Against Corruption; Moore v IndependentCommission Against Corruption64 the NSW Court of Appeal used the language ofAnisminic when framing the form of its declaratory relief (holding that theIndependent Commission Against Corruption had exceeded its jurisdiction inconcluding that the conduct of the appellants amounted to “corrupt conduct”within the meaning of the relevant legislation65) but its majority decision66 wasclearly one based on the traditional doctrine of jurisdictional error, albeit in itsmore liberal version as developed by the High Court.67 In the words of GleesonCJ, the commission had, among other things, “failed to apply the correct test”and “incorrectly stated the issue that arose for decision, and avoided the problemthat was central to that issue”.68 There was also the invocation of a groundanalogous to “no evidence” to the effect that there was nothing in the report ofthe commissioner69 or in argument before the court which would justify theconclusions of “corrupt conduct”.70The substance of the decision of the Court of Appeal was that the commission63 [1964] AC 40.64 (1992) 28 NSWLR 125.65 Sections 7-9, Independent Commission Against Corruption Act 1988 (NSW).66 Gleeson CJ and Priestley JA; Mahoney JA dissenting.67 cf R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 455-6; R vBlakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen ofAustralia(1950) 82 CLR 54; R v Australian Stevedoring Industry Board; Ex parte Melbourne StevedoringCo Pty Ltd (1953) 88 CLR 100; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473;Re Coldham; Ex parte Brideson (1989) 166 CLR 338.68 (1992) 10 NSWLR 125 at 147.69 Commissioner Ian Temby QC.70 cf R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd(1953) 88 CLR 100.
  • 15had reached a decision unsupported by the evidence in such a way as todemonstrate that it had misunderstood the test it had to apply in determiningmatters going to jurisdiction.71 The court made no reference to such Anisminicfactors as the taking into account of irrelevant considerations.In Commissioner of Police v District Court of New South Wales & Anor72 theCourt of Appeal was in no doubt that there was still a relevant distinction to bemade between jurisdictional and non-jurisdictional errors of law, despite its earlierdecision in Thelander v Woodward.73 In particular, Mahoney JA had this to sayabout the Anisminic doctrine: It was suggested that, as the result of the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and other English cases, certiorari now lies to correct any decision of an inferior court, whether apparent on the record or otherwise ... . The submission recognised that this “is not the position which the Australian courts have arrived at, and in particular is not reflected in any decision of the High Court”. Such a view, if adopted, would allow the equivalent of an appeal for error of law in respect of every inferior court or tribunal and, on one view, whatever be the nature of the error of law. Alternatively, there would be such a review if the error went to the issue before the inferior body. It would render superfluous administrative procedures, so far as they relate to errors of law. That is not the course which, in general, has been followed by the High Court or this Court. If it is to be taken, it should be taken by the High Court. In so far as it may be relevant, it is a course which, in my respectful opinion, should not be taken as stated and without significant qualification. An error of law going to the nature or extent of the jurisdiction exercised by the inferior court or tribunal is, I think, appropriate for correction by certiorari. Incidental errors of law, or errors relating, for example, to evidence, procedure, or merely collateral matters are not.74In Walker v Industrial Court of New South Wales75 the Court of Appeal, bymajority,76 held that the Full Industrial Court of NSW, which had reversed a71 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953)88 CLR 100 at 120.72 (1993) 31 NSWLR 606.73 [1981] 1 NSWLR 644.74 (1993) 31 NSWLR 606 at 640.75 (1994) 53 IR 121.76 Meagher and Sheller JJA, Kirby P dissenting.
  • 16decision of a judge in the former Industrial Commission of NSW, had made anon-jurisdictional error of law in not attaching sufficient weight to a legalargument which was supported by considerable judicial authority. However, theerror of law was not, in the opinion of the majority, a jurisdictional one.77 In thewords of Sheller JA (with whom Meagher JA agreed): There is a critical difference between the error [the subject of the PSA case78] and the error claimed to have been made by the Industrial Court in this case. The error [in the PSA case], in the opinion of the majority of the High Court, was [the South Australian Industrial Commission’s] failure to address the question it had to decide or its prematurely addressing that question. The error was related to the nature or extent of the jurisdiction of the Commission. The error of the Full Industrial Court, which is relied upon, is not so related. ... [T]he majority decision, even if erroneous, was not one made without authority or beyond the authority of the Industrial Court ... . The majority understood the nature of the jurisdiction they had to exercise. It is not enough that the Industrial Court erred in law in making its decision ... .79Interestingly, but immaterially, his Honour cited Anisminic as authority for that lastproposition of law.80 However, there was nothing in the majority judgments, norin the dissenting judgment of Kirby P,81 to suggest that the Court of Appeal wasendorsing the extended range of jurisdictional errors recognised in Anisminic.The decision is significant in that the court recognised that there was still animportant distinction to be made between so-called jurisdictional and non-jurisdictional errors of law. The court accepted that the error of law made by themajority of the Full Industrial Court would have been disturbed if an appeal lay tothe Court of Appeal from their findings. However, there was no such appeal right77 The error, found by the majority to be non-jurisdictional, was protected by a privative clause (s301, Industrial Relations Act 1991 (NSW)) which ousted the jurisdiction of the Court of Appeal toquash or otherwise correct non-jurisdictional errors on the face of the record.78 Public Service Association of South Australia v Federated Clerks’ Union of South Australia,South Australian Branch (1991) 173 CLR 132.79 (1994) 53 IR 121 at 153-5.80 Kirby P also cited Anisminic somewhat immaterially as an example of the “resistance ofsupervisory courts to the exclusion of their jurisdiction to require courts and tribunals of limitedjurisdiction to keep within that jurisdiction”: (1994) 53 IR 121 at 137.81 Kirby P was of the opinion that the error of law made by the majority in the Full Industrial Courtwent to jurisdiction. His Honour saw the error as being a constructive refusal or failure to exercisejurisdiction by reason of, relevantly, a misconstruction of the extent of its jurisdiction: see (1994)53 IR 121 at 139. The reasoning of Kirby P was, however, quite consistent with the liberal versionof the traditional doctrine of jurisdictional error: cf R v Australian Stevedoring Industry Board; Exparte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; R v Gray; Ex parte Marsh (1985)157 CLR 351.
  • 17and a privative clause protected the error.In Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation82 theCourt of Appeal made it clear that there is still a purportedly meaningfuldistinction to be made between jurisdictional and non-jurisdictional errors of law.The case concerned an application for relief in relation to a ruling made by theCourt of Coal Mines Regulation in an inquiry into an accident at a coal minewhen certain mine workers drowned. The mine company had made a claim oflegal professional privilege in respect of certain statements made by mineworkers and the mine manager in the presence of his legal representative afterthe accident concerning events leading up to the accident. Staunton ADCJ hadruled that the statements made by the mine manager were protected by theprivilege but not those of the workers. (In so ruling, his Honour had, notunimportantly, expressly incorporated his reasons into his judgment.) On appealto the NSW Court of Appeal, Powell JA (with whom Meagher JA concurred) heldthat the privative clause in the relevant legislation83 would protect from judicialreview any non-jurisdictional error of law which appeared plainly on the face ofthe record of the inferior court.84 The court went on to hold that even if theprimary judge had erred in rejecting some of the claims for privilege made, thatwas an error within jurisdiction and thus not susceptible to prerogative reliefbecause of the existence and effect of the privative clause.85In Vanmeld Pty Limited v Fairfield City Council86 the Court was called upon toconsider whether a time limit privative clause87 precluded judicial review fordenial of procedural fairness after the expiration of the stipulated time period in82 (1997) 42 NSWLR 351.83 Section 152(5), Coal Mines Regulation Act 1982 (NSW).84 The Court of Appeal relevantly noted that the Court of Coal Mines Regulation was to beregarded as a court and not an administrative tribunal for the purposes of the principles relating tojurisdictional error.85 Declaratory relief was also refused, having regard both to the privative clause, the nature of theproceedings below, and public interest considerations militating against judicial review.86 (1999) 46 NSWLR 78.87 Section 35, Environmental Planning and Assessment Act 1979 (NSW).
  • 18circumstances where it was alleged that the inclusion of an impugned provisionin a local environmental plan88 was invalid by reason of denial of proceduralfairness. Spigelman CJ opined in the context of the extent of the protectionafforded by privative clauses that traditional notions of jurisdictional error mayneed to be reviewed in light of Anisminic: The often stated proposition that privative clauses do not protect against jurisdictional error - sometimes confined to "manifest jurisdictional error" (Church of Scientology v Woodward (1980-82) 154 CLR 25, 56) or to "refusing to exercise" or "exceeding" jurisdiction (Public Service Association (SA) supra 160, Darling Casino supra 555) - may need to be reviewed in view of the extension of the concept of jurisdictional error in recent years. (Anisminic supra 171 per Lord Reid, 194 per Lord Pearce; Craig v South Australia (1994-95) 184 CLR 163, 177-179; Darling Casino supra 555 fn 36). For present purposes, it is sufficient to note that there is, within the class of jurisdictional error, specific cases to which a particularly high level of strictness in the construction of a privative clause is appropriate. In Australia, this approach includes the application of the Hickman principle. (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). This principle applies to State enactments. (R v Murray ex parte Proctor (1949) 77 CLR 387, 398-399; Coal Miners Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, 442-443).89The Chief Justice saw procedural fairness as an “inviolable limitation” on theexercise of a statutory power notwithstanding the Hickman principle.90 Powell JAsaw it a little differently, stating that procedural fairness would indeed be judiciallyreviewable by reason of the ordinary application of the implication principlepursuant to which a duty to act fairly is ordinarily implied into a statutory decision-making process unless there were a clear and unambiguous exclusion either inthe privative clause itself or in some other part of the statute.91 Ultimately,however, the court concluded that the appellant had failed to establish that theinclusion of the impugned provision in the local environmental plan was invalidupon the ground of alleged non-compliance with a condition precedent to the88 Clause 13(3) of Fairfield Local Environment Plan 1994.89 (1999) 46 NSWLR 78 at 106.90 (1999) 46 NSWLR 78 at 111 [162].91 For Meagher JA the extent of the protection afforded by the privative clause and the extent ofthe Hickman principle did not arise.
  • 19exercise of the power to amend the draft plan, or upon the ground that theinclusion of the provision in the plan was not authorised by the provisions of theprincipal Act or upon the ground of bad faith.The court (Spigelman CJ in dissent) concluded that the provisions of the relevantstatute were exhaustive as respects obligations of procedural fairness and thatupon its proper construction the privative clause was effective to extinguish theright to judicial review on the ground of denial of procedural fairness. Despitesome enthusiasm for the Anisminic doctrine displayed by Spigelman CJ the restof the court showed little or no such enthusiasm although Powell JA certainlywarmed to the idea that the rules of judicial review for denial of proceduralfairness and jurisdictional error were the same irrespective of whether the formerwas classified as a jurisdictional error.In DPP v Mills92 Craig was cited by Handley JA a authority for the proposition thata judicial officer exceeded his or her authority and fell into jurisdictional error incircumstances where the person misconceived the nature of the function he orshe was to perform.93 With respect, an error of that kind can easily beaccommodated within the traditional doctrine of jurisdictional error as, forexample, a wrongful failure to exercise jurisdiction.94In Hutchinson v Roads & Traffic Authority95 Giles JA (with whose orders PowellJA agreed, Meagher JA agreeing with both Giles and Powell JJA) cited,96seemingly with approval, what Kirby P had said in Totalisator Agency Board ofNew South Wales v Casey,97 and also made reference to Kirby P’s judgment inMacksville and District Hospital v Mayze,98 namely, that a failure on the part of a92 [2000] NSWCA 236.93 See [2000] NSWCA 236 at [40].94 See eg Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.95 [2000] NSWCA 332.96 [2000] NSWCA 332 at [29].97 See (1994) 54 IR 354 at 359.98 See (1987) 10 NSWLR 708 at 713.
  • 20tribunal to afford procedural fairness constitutes jurisdictional error.99 However,his Honour went on to say: Categorisation as jurisdictional error as distinct from error within jurisdiction involves a line which in some cases "may be particularly difficult to discern", see Craig v The State of South Australia (1995) 184 CLR 163 at 178, and in the discussion of the scope of certiorari in that case (at 175-6) jurisdictional error and failure to observe applicable requirements of procedural fairness were separately stated as grounds for the relief. As Lord Browne-Wilkinson explained in R v Lord President of the Privy Council; ex parte Page (1993) AC 682 at 701, curial intervention is because the decision-makers powers are taken to have been conferred "on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures ...", so that if the decision-maker exercises his powers outside the jurisdiction conferred or in a manner which is procedurally irregular he is acting outside his powers and therefore unlawfully. If it is preferred to avoid the language of jurisdictional error when there has been failure to afford procedural fairness, the result is the same. The failure will found prerogative relief, see in addition to the cases just mentioned Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 and Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, both cited in Craig v The State of South Australia at 175-6.100Especially interesting is his Honour’s observation that the High Court in Craig didindeed make a distinction between jurisdictional error and non-compliance withthe rules of procedural fairness in its discussion of the scope of certiorari, thusaffording another opportunity to a reviewing court to avoid categorizing a denialof procedural fairness as a jurisdictional error. With respect, one should not pointtoo fine a point on that purported distinction, for the High Court now appears tohave accepted that a denial of procedural fairness, other than perhaps a veryminor or technical breach, will now ordinarily constitute jurisdictional error in thetraditional sense,101 and such an approach appears to implicit in what Giles JAsaid when he referred to a decision maker “acting outside his powers andtherefore unlawfully” consequent upon a failure to comply with an ordinarily99 Kirby P in Casey had referred to Kopuz v District Court of New South Wales (1992) 28 NSWLR232 at 245 and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171 and195.100 [2000] NSWCA 332 at [30].101 See eg Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs(1999) 197 CLR 510; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; PlaintiffS157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
  • 21implied duty to act fairly when exercising powers. As his Honour said, “the resultis the same”.102In Lowy v Land and Environment Court of NSW103 Handley JA104 citedAnisminic105 for the proposition that although a tribunal (in Lowry, the courtbelow106) may have jurisdiction to entertain an appeal and, relevantly, to considerwhether certain provisions in a local environmental plan107 amounted to a“development standard” (as defined in s 4 of the Environmental Planning andAssessment Act 1979 (NSW)), it could not, by a “wrong decision” on thatquestion, give itself jurisdiction to relax the controls imposed by that clause.108In Uniting Church in Australia Property Trust (NSW) v Industrial RelationsCommission of NSW in Court Session109 Mason P (Spigelman CJ and HandleyJA agreeing) made the point that although the distinction between jurisdictionaland non-jurisdictional error remained “a fundamental part of Australianadministrative law”,110 but immediately went on to add that “one insight stemmingfrom Anisminic is that it is now more clearly understood than previously that ‘anerror of law may amount to a jurisdictional error even though the [decision-makerthat] made the error had jurisdiction to embark on its inquiry’.”111 In Sydney WaterCorporation Ltd v Industrial Relations Commission of NSW112 Mason P (Hodgson102 [2000] NSWCA 332 at [30]. Powell JA said as much in Vanmeld at 46 NSWLR 78 at 114-5.103 (2002) 123 LGERA 179.104 At 123 LGERA 194.105 Giles JA also cited R v Dunphy ex parte Maynes (1978) 139 CLR 482 at 495-6 per Mason Jand R v Gray (1985) 157 CLR 351 at 371-2 per Gibbs CJ.106 The NSW Land and Environment Court.107 Clause 22(1) and (2) of Woollahra Local Environmental Plan 1995.108 State Environmental Planning Policy No 1 - Development Standards permits a consentauthority (including the court in a merit-based appeal made to it), where, inter alia, it is satisfiedthat an objection made under the Policy is well founded, to grant development consent to adevelopment application notwithstanding the development standard the subject of the objection.109 (2004) 60 NSWLR 602.110 (2004) 60 NSWLR 602 at 615 [54].111 (2004) 60 NSWLR 602 at 615 [54] per Mason P citing Gibbs CJ in R v Gray; Ex parte Marsh(1985) 157 CLR 357 at 371. Mason P also referred to Coal and Allied Operations Pty Ltd vAustralian Industrial Relations Commission (2000) 203 CLR 194 at 227-8 per Kirby J.112 (2004) 61 NSWLR 661.
  • 22and McColl JJA agreeing) made the same point, confirming what he had said inthe Uniting Church case.113With respect, these invocations of Anisminic can hardly amounted to anendorsement of the Anisminic doctrine of extended jurisdictional error for it hadlong been acknowledged prior to Anisminic that errors of law such asfundamental misconstruction of the statute, “asking the wrong question”, and“applying the wrong test” could go to jurisdiction notwithstanding that there wasno lack or want of jurisdiction in the traditional sense.114In Brodyn Pty Ltd t/as Time Cost and Quality v Davenport115 Hodgson JA (withwhom Mason P and Giles JA agreed) noted that the primary judge116 had citedAnisminic and Craig as authority for the proposition that an administrative tribunalwould fall into jurisdictional error of law if it had refused to take into accountsomething it was required to take into account or it based its decision onsomething that it had no right to take into account. Nevertheless, Hodgson JAwent on to say: It was said in the passage in Anisminic quoted by McDougall J [in Musico v Davenport [2003] NSWSC 977 at [47]] that a decision may be a nullity if a tribunal has refused to take into account something it was required to take into account, or based its decision on something it had no right to take into account. However, in Craig v South Australia (1995) 184 CLR 163 at 177 the High Court said that this would involve jurisdictional error if compliance with the requirement in question was made a pre-condition of the existence of any authority to make the decision.117Interestingly, Hodgson JA was at great pains to accurately set out what the HighCourt had said in Craig as to the circumstances in which an Anisminic-type errorof law (such as the kind described above) would amount to jurisdictional errorwhen committed by a tribunal. Clearly, the Court of Appeal did not want to create113 At 61 NSWLR 661 at [65].114 See eg Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, R v Hickman; Ex parteFox and Clinton (1945) 70 CLR 598 at 606, and Ex parte Hebburn Ltd; Re Kearsley Shire Council(1947) 47 SR (NSW) 416 at 420 per Jordan CJ.115 (2004) 61 NSWLR 421.116 McDougall J of the NSW Supreme Court.117 (2004) 61 NSWLR 421 at [56]. See also Energy Australia v Downer Construction (Australia)Pty Limited [2005] NSWSC 1042.
  • 23the impression that any kind of Anisminic-type error of law would now bejurisdictional as a result of the High Court’s majority judgment in Craig. Be thatas it may, the court’s decision in Brodyn must be taken to be a belatedacceptance by the NSW Court of Appeal of the potential applicability of theAnisminic-Craig formulation of jurisdictional error, provided it can be shown thatthe impugned error of law is one on which the decision of the case depends.118More recently, in Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW)Pty Ltd,119 Basten JA (who, with Ipp JA, agreed with the orders proposed byHodgson JA) cited Brodyn as authority for the applicability of Craig and Yusuf inthe context of jurisdictional fact situations: … Brodyn accepted that relief could be sought in the Court in relation to a failure by an adjudicator to exercise his or her statutory powers, with the result that there was no valid determination. The judgment in Brodyn at [54] posited the relevant question as “whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator’s determination”. So much may be conceded: that description reflects the concept of “jurisdictional error” under the general law as identified in Craig v South Australia (1995) 184 CLR 163 at 179 and in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232 at [82]. The question in a particular case will be whether the adjudicator has, by acting in a particular way, exceeded or failed to exercise the authority or powers given to him or her by the Act.120His Honour went on to say that Brodyn may be authority for the proposition that,contrary to the general position outlined by the High Court in Craig, namely, thatadministrative tribunals are not final arbiters of questions of law, particularlegislation (relevantly, NSW legislation) may well provide otherwise: As Craig v South Australia demonstrates, there is an important distinction to be drawn (at least in this country) between administrative decision-makers and courts of law: 184 CLR at 179. Properly understood, Brodyn may be saying that the structure of the Act demonstrates that, contrary to the general rule with respect to administrative tribunals, an adjudicator has been given power to determine a payment claim so long as he or she takes into account the legal parameters118 Cf Pearlman v Keepers and Governors of Harrow School [1979] QB 56 at 70 per LordDenning MR. See also Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd[2005] NSWCA 228 per Basten JA at [71] and [78].119 [2005] NSWCA 228.120 [2005] NSWCA 228 at [71].
  • 24 prescribed by the Act and the contract, and whether or not the decision actually made reflects a correct understanding of the legal principles to be derived from those sources. If that is the correct understanding of the judgment of Brodyn in this Court, it would appear to accord with the judgment of Einstein J at first instance, and with the approach adopted by McDougall J in Musico v Davenport [2003] NSWSC 977, as noted by Palmer J, in reaching a similar conclusion, in Multiplex Constructions Pty Ltd v Luikens [[2003] NSWSC 1140] at [42]. Nothing put to the Court in this case demonstrated any basis for reconsideration of that aspect of Brodyn, so understood.121A similar view had been expressed in Absolon v NSW TAFE122 by Fitzgerald JA: The Tribunals omission did not constitute a jurisdictional error by the Tribunal in the sense discussed in Craig v South Australia. (1995) 184 CLR 163. The task of the Tribunal, acting within jurisdiction, was similar to the ordinary jurisdiction of a court of law, as described in Craig. 184 CLR, at pp 179-180. There, the High Court said: 184 CLR, at pp 179-180. "...the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."123ANISMINIC IN THE NSW SUPREME COURTIn Waterhouse v Racing Appeals Tribunal,124 a decision of Young CJ in Eq, hisHonour, after referring to the oft-cited dictum of Lord Reid in Anisminic,125 said:121 [2005] NSWCA 228 at [78].122 [1999] NSWCA 311.123 [1999] NSWCA 311 at [146].124 [2002] NSWSC 1143.125 [1969] 2 AC 147 at 171.
  • 25 Australian courts have not given full force to these words in cases where there is an appeal from a court; see eg R v Dunphy; Ex parte Maynes (1978) 139 CLR 482, 495-6 and Electricity Commission of NSW v Yates (1991) 30 NSWLR 351, 357. However, when it is the decision of an administrative tribunal that is being questioned, the Anisminic principle has been more favourably considered.126In Jonsson v Arkway Pty Ltd127 Shaw J contrasted the position in England withthat in Australia, making special reference to the position pertaining to inferiorcourts and tribunals: The basis of the English deviation from Australian administrative law is grounded in the proposition that all errors of law involve jurisdictional errors (see R v Hull; Ex parte Page [1993] AC 682; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147), but in Australia, it is still the case that a court of judicial review may only correct jurisdictional errors: Craig v South Australia (1995) 184 CLR 163. In Australia, only certain issues will be jurisdictional issues in the context of inferior courts or statutory tribunals with a jurisdiction limited by statute, but those questions remain live throughout the proceedings. For example, a tribunal limited to matters involving adjudication of disputes over topic ‘x’ will always be concerned with the question of whether the subject of the controversy is ‘x’ or ‘not-x’. This may be a matter of consent between the parties however a wrong finding of either of these options as a matter of law, or a wrong finding of fact or a misapplication of a legal test that leads to such a finding of fact or law, may all amount to jurisdictional errors rendering the proceedings amenable to judicial review and prerogative relief: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Craig v South Australia.128Undoubtedly, all that is indubitably correct, but it can all be accommodated withinthe traditional doctrine of jurisdictional error including the so-called “jurisdictionalfact doctrine”.129In Musico v Davenport,130 a decision of McDougall J, it was held that anadjudicator’s determination under the Building and Construction Industry Security126 [2002] NSWSC 311 at [11].127 (2003) 58 NSWLR 451.128 (2003) 58 NSWLR 451 at 454 [16].129 See Ellis-Jones I, “The ‘jurisdictional fact doctrine’ in New South Wales local government andenvironmental planning law” (2006) 12 LGLJ 16.130 [2003] NSWSC 977.
  • 26of Payment Act 1999 (NSW) was judicially reviewable by means of certiorari.131His Honour, after also referring to the oft-cited dictum of Lord Reid in Anisminic132as well as Craig, said: I therefore conclude that, where the determination of a dispute submitted to an adjudicator under the Act requires the adjudicator to consider issues of law, the adjudicator will not fall into jurisdictional error simply because he or she makes an error of law in the consideration and determination of those issues. It would be otherwise, as the High Court pointed out in Craig (echoing, I think, what Lord Reid said in Anisminic), if the error of law causes the adjudicator to make one or other (or more) of the jurisdictional errors that the court identified: in such a case, relief would lie, subject to any relevant discretionary considerations.His Honour’s reference to “the jurisdictional errors that the court identified”appears to embrace not just the Anisminic-type errors identified, non-exhaustively, by the High Court in Craig but also those referred to by Lord Reid inhis oft-cited dictum in Anisminic.133 Thus, jurisdictional error (includingjurisdictional error on the face of the record) would then include the followingerrors of law: • where an administrative tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, at least in some circumstances, makes an erroneous finding or reaches a mistaken conclusion (as per Craig); • where the tribunal makes a decision in bad faith, gives a decision which it had no power to make, misconstrues provisions giving it power to act so that it failed to deal with the question remitted to it but decided some131 In Brodyn Pty Limited t/as Time Cost and Quality v Davenport [2003] NSWSC 1019 Einstein Jalso came to the same conclusion.132 [1969] 2 AC 147 at 171.133 See, in that regard, Wong C, “Construction Law: Adjudicator’s determination subject to judicialreview” (2004) 42 Law Soc J (NSW) 50. See also Abacus v Davenport [2003] NSWSC 1027;Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140; Transgrid v Walter ConstructionGroup [2004] NSWSC 21; Transgrid v Siemens Ltd [2004] NSWSC 87 (on appeal to the NSWCourt of Appeal, [2004] 61 NSWLR 521); Quasar Constructions v Demtech Pty Ltd [2004]NSWSC 116; John Holland Pty Limited v Cardno MBK (NSW) Pty Limited [2004] NSWSC 258;Emergency Services Superannuation Board v Davenport [2004] NSWSC 697; HolmwoodHoldings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129.
  • 27 other question not remitted to it, refuses to take into account something which it was required to take into account, or bases a decision on matters which, under the provisions setting it up, it had no right to take into account (as per Anisminic).134However, his Honour made it clear that judicial review would not be possible fornon-jurisdictional error of law, thus recognising that there was still a distinction tobe made between jurisdictional and non-jurisdictional errors. However, evenLord Reid, in particular, in Anisminic recognised that there was still such adistinction,135 but it soon became very difficult in England to conceive of an errorof law which would not be jurisdictional having regard to the wide variety of theerrors mentioned in the lists of the majority Lords. Indeed, Australian experiencehas shown that almost any error of law can be “massaged” into a jurisdictionalone if the reviewing court so desires.In Gray v Woollahra Municipal Council,136 a decision of Whealy J, the courtchoose to adopt a very robust and not entirely correct interpretation of what theHigh Court had said in Craig. This is what Whealy J had to say about the matter: … The High Court has, in addition, made it clear that the broader kind of error described by Lord Reid in his well known speech in Anisminic at 171, is not jurisdictional error so as to enable the grant of relief in the nature of certiorari at least where the decisions of inferior courts are concerned. On the other hand, the High Court has confirmed that the full range of the common law grounds of judicial review are available to challenge the legality of a tribunal decision. So far as tribunals are concerned, there does not appear to be any relevant distinction in Australia, as a result of Craig’s case, between jurisdictional error and non- jurisdictional error. …137With respect, the High Court did not say that. First, the High Court said that theAnisminic doctrine would not “ordinarily” apply to inferior courts; the High Court134 Judicial review would also be possible for denial of procedural fairness.135 See [1969] 2 AC 147 at 171.136 [2004] NSWSC 112.137 [2004] NSWSC 112 at [81].
  • 28did not say that the doctrine would never apply to the judicial review of thedecisions and proceedings of inferior courts. Secondly, the High Court did notsay that every Anisminic-type error of law will be jurisdictional in the wider orextended sense. The High Court made it clear that the error had to be such that“[as a result] the tribunal’s exercise or purported exercise of power is therebyaffected”.138 Thus, it does not seem to be accurate to assert that Craig hasrendered obsolete, even in a practical sense, the traditional distinction betweenjurisdictional and non-jurisdictional errors of law. This was made clear byHodgson JA (with whom Mason P and Giles JA agreed) in the NSW Court ofAppeal decision of Brodyn Pty Ltd t/as Time Cost and Quality v Davenport.139In Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd140 BreretonJ opined that the NSW Court of Appeal decision in Brodyn was correctly to beunderstood as saying that mere error of fact or law, including in the interpretationof the enabling Act, did not necessarily amount to jurisdictional error. In PacificGeneral Securities Ltd v Soliman & Sons Pty Ltd141 his Honour said by way ofamplification: At least in the context of tribunals other than inferior courts, one well recognised species of jurisdictional error is “asking the wrong question”, in the sense that a tribunal which misconceives what it is required to determine falls into jurisdictional error, resulting in invalidity of its decision [Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 (Lord Reid); Craig v South Australia (1995) 184 CLR 163, 178-179].In Holmwood Brereton J cited Lord Reid’s oft-cited speech in Anisminic142 for theproposition that, at least in the case of an administrative tribunal as distinct froma court of law, a tribunal’s decision will be a nullity if, among other things, it138 See (1995) 184 CLR 163 at 179. See also, by way of example, Ideal Waterproofing Pty Ltd vBuildcorp Australia Pty Ltd [2004] NSWSC 765. See also Custom Credit Corporation Limited (inLiquidation) v Commercial Tribunal of New South Wales [1999] NSWSC 1021; Hargrave v Slater[2000] NSWSC 387.139 (2004) 61 NSWLR 421. See also Kembla Coal & Coke v Select Civil Pty Ltd [2004] NSWSC628.140 [2005] NSWSC 1129.141 [2006] NSWSC 13.142 See [1969] 2 AC at 171.
  • 29“refuses to take into account a relevant consideration or it takes into account anirrelevant consideration”.143 With respect, his Honour overstated the Australianlegal position, for, as Hodgson JA pointed out in Brodyn Pty Ltd t/as Time Costand Quality v Davenport,144 the High Court made it clear in Craig v SouthAustralia that errors of the kinds described by Brereton J would only involvejurisdictional error if compliance with the requirement in question was made aprecondition of the existence of any power or authority to make the decision.ANISMINIC IN THE NSW LAND AND ENVIRONMENT COURTAs mentioned above, in Darkingung Local Aboriginal Land Council v Minister forNatural Resources145 Bignold J appeared to display considerable enthusiasm forthe Anisminic doctrine of extended jurisdictional error.However, in Darkingung Local Aboriginal Land Council v Minister for NaturalResources [No 2]146 Stein J, in referring to the grounds which would not precludea judicial review challenge notwithstanding a time limit privative clause, did notinclude review on the basis of a breach of the rules of natural justice.147 His143 [2005] NSWSC 1129 at [42]. See also his Honour’s judgment in Pacific General Securities PtyLtd v Soliman & Sons Pty Ltd [2006] NSWSC 13.144 See (2004) 61 NSWLR 421 at [56]. See also Roads and Traffic Authority (RTA) v JohnHolland [2006] NSWSC 567 per Macready AJ at [63]-[66].145 (1985) 58 LGRA 298.146 (1987) 61 LGRA 218.147 See (1987) 61 LGRA 218 at 230. Cripps J in Woolworths Ltd v Bathurst City Council was ofthe opinion that a denial or breach of the rules of procedural fairness may not preclude achallenge after the expiration of the stipulated time period. However, in Coles SupermarketsAustralia Pty Ltd v Minister for Urban Affairs and Planning147 Pearlman J held that a time limitprivative clause did preclude a judicial challenge on the ground of procedural fairness exceptwhere the tests enunciated in Hickman were not satisfied. However, in Wechsler v AuburnCouncil [1997] NSWLEC 9 Talbot J of the NSW Land and Environment Court stated that morerecent judicial authorities of the High Court and the NSW Court of Appeal (viz Craig and Yisrael vDistrict Court of NSW (1996) 87 A Crim R 63) supported a “reconsideration” of Coles andBreitkopf v Wyong Council (1996) 90 LGERA 269 (in which Bignold J gave a privative clause fullforce and effect). The “better” view now is that, unless there be some clear and unambiguousexclusion of the rules of procedural fairness either in the privative clause or in some other part ofthe statute, a denial of procedural fairness, if established, will not be protected by the privativeclause, the reason being that the duty to act fairly is ordinarily an “inviolable limitation or restraint”
  • 30Honour, as already mentioned, went on to note that the Anisminic doctrineappeared to have had little or no impact in Australia.148Stein J was to change his mind on the issue of whether or not a breach of therules of natural justice could be judicially reviewed in the face of such a clause.In Calkovics v Minister for Local Government & Planning149 his Honour held thatsuch a clause did not prevent a judicial review challenge on the basis of a breachof the rules of procedural fairness. It would appear that Stein J came to that viewnot so much as a result of any real enthusiasm for the Anisminic doctrine butrather on the basis that a decision-maker’s power must be taken to have beenconferred on the underlying assumption that the power is to be exercised onlywithin the jurisdiction conferred in accordance with fair procedures. Still later,when on the Court of Appeal, his Honour (then Stein JA) expressly left the matteropen in Londish v Knox Grammar School.150In Rosemount Estates Pty Ltd v Cleland151 the applicant company sought anumber of declarations, including a declaration that the report, findings andrecommendations of the first respondent commissioner were invalid. Waddell AJ,after noting that Anisminic had preserved the distinction between “an error of lawgoing to jurisdiction or to compliance with the legal requirements to be fulfilled bythe body under review and an error of law committed in the valid exercise of itspowers”152, concluded that it was not open to the court to find invalidity solely onthe ground of an error of law made by the commissioner in his interpretation ofcertain provisions of an environmental planning instrument.153 In that regard, hisHonour said:on the decision-making power: see the NSW Court of Appeal decision in Lesnewski v MosmanMunicipal Council (2005) 138 LGERA 207.148 (1987) 61 LGRA 218 at 228.149 (1989) 72 LGRA 269 at 273.150 (1997) 97 LGERA 1.151 (1995) 86 LGERA 1.152 (1995) 86 LGERA 1 at 17.153 His Honour also cited Lord Denning’s dictum in R v Northumberland Compensation AppealTribunal; Ex parte Shaw [1952] 1 KB 338 at 346 to the effect that a tribunal may often decide apoint of law wrongly whilst keeping well within its jurisdiction.
  • 31 It may be that there is justification to extend the grounds of judicial review to include the making of an error of law in the exercise of jurisdiction which is fundamental to the finding or recommendation of the body reviewed which leads to a manifestly unreasonable result. Lord Diplock contemplated the addition of further grounds of review. However, the question of recognising such an additional ground has not been argued and should not be pursued further.154However, his Honour did proceed to find that the foundation of thecommissioner’s recommendation that development consent be granted inrespect of the operation of an open cut coal mine was the commissioner’s findingthat the development was permissible with consent, and that that finding was“manifestly unreasonable”.155 His Honour said: ... It is clearly required that the recommendations should be, and should be seen to be, fairly based on the findings and the material in the report. If a recommendation is manifestly unreasonable, considered in this way, it cannot be regarded as complying with the statutory requirements.156His Honour declared that the commissioner’s recommendation was not arecommendation for the purposes of the relevant statutory provisions.157 He alsomade an order (in the nature of mandamus) that the commissioner exerciseaccording to law the functions required of him.158 His Honour’s invocation of“Wednesbury unreasonableness”159 as a ground of invalidity - resulting in afinding that the commissioner’s jurisdiction in law had been constructivelyunexercised160 - was an implicit, if not explicit, acceptance of the Anisminicdoctrine of extended jurisdictional error.161154 (1995) 86 LGERA 1 at 17.155 (1995) 86 LGERA 1 at 30. The court agreed with the applicant that the proposed development,despite screening, would be an unwelcome visual intrusion on large parts of the countryside, andthe commissioner’s conclusion that it would not do so was found by the court to be Wednesburyunreasonable.156 (1995) 86 LGERA 1 at 30.157 Sections 119 and 101, Environmental Planning and Assessment Act 1979 (NSW).158 (1995) 86 LGERA 1 at 30.159 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234.160 cf Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.161 Interestingly, in Anisminic Ltd v Foreign Compensation Commission & Ors [1969] 2 AC 147 at171 and 195, neither Lord Reid nor Lord Pearce actually included in their respective lists of errorsof law going to jurisdiction “Wednesbury unreasonableness”.
  • 32However, despite the views of Bignold J in Darkingung and Waddell JA inRosemount Estates, the NSW Land and Environment Court, for the most part,showed little enthusiasm for the Anisminic doctrine of extended jurisdictionalerror prior to the High Court decision in Craig.In Kolback Environmental Services Ltd v Auburn Council162 Pearlman J, afterreferring to the High Court decisions in Craig and BHP Petroleum Pty Ltd vBalfour,163 the latter making reference to certain words of Lord Diplock in ReRacal Communications Ltd164 in which his Lordship referred approvingly toAnisminic, said: I accept the proposition, established by these authorities, that an administrative tribunal may fall into error if it asks itself the wrong question.True, but, with the greatest respect, we didn’t need Anisminic or the other casescited above to tell us that.CONCLUSIONDespite some NSW judicial authority that would not appear to take into account thequalifications and reservations expressed in Craig, the preponderance of judicialauthority in the State makes it clear that not all Anisminic-type errors of law will bejurisdictional in the broad or extended sense but only one on which the decision of thecase depends. Had that not been held to be so, NSW superior courts would have gonefurther than the High Court of Australia chose to do in Craig. In order for the classic typeof Anisminic error of law to be held to be jurisdictional in the broad or extended sense(relevantly, a failure to take into account a relevant consideration that the decision makerwas duty bound to take into account), it will be necessary to show that compliance withthe requirement to take the matter into account was a precondition of the existence ofthe power or authority to make the substantive decision. In order for an erroneous162 (1997) 98 LGERA 367.163 (1987) 180 CLR 474.164 (1981) AC 374 at 382-3.
  • 33finding to be held to involve jurisdictional error in the broad or extended sense, theerroneous finding will need to form the basis of the decision or otherwise be an elementin the process of reasoning that leads to the decision for the error to be jurisdictional.Finally, the maintenance by NSW superior courts of the traditional distinctionbetween errors going to jurisdiction and errors within jurisdiction - a distinction“so fine”165 it is “hair-splitting”166 - has also allowed courts to intervene “whereintervention would otherwise be precluded”.167 Where Anisminic is cited asauthority in respect of some error of law adjudged by the reviewing court to bejurisdictional, its invocation is often unnecessary and even confusing as theimpugned error could, in most cases, be accommodated within the traditionaldoctrine of jurisdictional error. This is not surprising because, for the most part,Australian courts have found Anisminic irrelevant and unnecessary. As MargaretAllars has stated: Prior to the decision in Anisminic, the High Court had developed a liberal version of the traditional ground of jurisdictional error. The liberal version allowed for jurisdictional error to be established not only where a tribunal misconstrued its empowering Act, but also where it had “misconceived its function” or addressed itself to the wrong issue. After the Anisminic decision the High Court maintained a liberal and therefore very flexible approach to traditional jurisdictional error, an approach incorporating the test of whether a tribunal has misconceived its function or addressed itself to the wrong issue, yet leaving scope for the existence of non-jurisdictional errors of law which may not be reviewed under this ground of review.168There is little doubt that Allars’ comments are equally applicable to the approachfairly consistently taken by NSW superior courts over the years. -oo0oo-165 Pearlman v Keepers and Governors of Harrow School [1979] QB 56 per Lord Denning MR at70.166 S A de Smith, “Judicial Review in Administrative Law The Ever-Open Door?” (1969) 27 CambL J 161 at 164.167 V Bath, “The Judicial Libertine - Jurisdictional and Non-jurisdictional Error of Law in Australia”(1983) 13 F L Rev 13 at 46.168 Halsbury’s Laws of Australia [vol 1] (Butterworths, Sydney, 1991), p 13,549.