The supervisory jurisdiction of the court is identified, but not defined, in s 69 of the Supreme Court Act 1970 (NSW).  It is identified primarily by reference to the pre-existing jurisdiction of the Court to grant relief by way of prerogative writs.  Such writs were available to supervise the exercise of governmental powers by public officers.  They did not permit the Court to exercise those powers itself, but only to set aside a decision made without lawful authority, or to require a mandatory step to be taken according to law: Attorney General (New South Wales) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36; Probuild Constructions at [27]-[28], [56].

Generally speaking, the supervisory jurisdiction of the State Supreme Court does not extend to review of decisions of Commonwealth officers or of a federal court: Judiciary Act 1903 (Cth), ss 38 and 39; Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9; ML v Australian Securities and Investments Commission [2013] NSWCA 109 at [4]-[14].

Other decisions will not be subject to judicial review because they do not affect legal rights or otherwise give rise to legal consequences: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at 159, 161; Probuild Constructions at [28].  However, even where there is no decision to be quashed, the court may have powers to grant declaratory or injunctive relief: Supreme Court Act, ss 66, 75.

When, in 1977, the Commonwealth enacted the Administrative Decisions (Judicial Review) Act 1977 (Cth), it provided a detailed list of grounds for review of administrative decisions: ADJR Act, s 5.  There is no equivalent legislation in New South Wales.  The list of grounds in the ADJR Act expanded, in limited respects, the grounds of review available under the general law; otherwise, the language was largely a spelling out of the various ways in which two primary categories could be engaged, being (i) jurisdictional error and (ii) error of law on the face of the record.  In New South Wales the grounds may sufficiently be identified by reference to the two general categories.

Thus, relief under s 69 is only available for jurisdictional errors or errors of law on the face of the record: D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 at [42].  These two categories of error are not mutually exclusive, but for some purposes it is necessary to distinguish between them: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at 307 [11], [18]-[19].

a) Jurisdictional Error

In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Kiefel CJ, Gageler and Keane JJ gave the following explanation of jurisdictional error:

“[23]    Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.

[24]      Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction.” [Footnotes omitted]

b) Error of Law on the Face of the Record

Identifying an error of law on the face of the record involves two steps: first, it is necessary to identify legal error; secondly, that error must be located within, and thus identifiable by reference to, the “record” of the decision-maker.

It is beyond the scope of this note to expand upon the concept of “error of law”.  Suffice it to say that the concept reflects the limitation identified by Brennan J in Quin at 35-36:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

Identification of a “record” is also a constraint upon judicial review.  As the Court explained in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13:

[16]     Attempts to abandon the distinction between jurisdictional error and other errors of law, together with attempts to broaden the concept of ‘the record’ were rejected by the High Court in Craig v State of South Australia [1995] HCA 58; 184 CLR 163. … In the course of discussing the scope of the “record” in respect of an inferior court, the ‘expansive approach’ adopted by this Court, particularly in Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 at 389-390 (Priestley JA) was rejected. After noting the absence of authority directly in point in the High Court, Craig, at 181, stated:

‘More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of “the record” would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error.’

[17]     Following that decision, s 69 of the Supreme Court Act was amended to provide that ‘the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination’: s 69(4). Given the procedural history outlined above, it is significant that the amendment did not refer to written evidence (such as affidavits and documentary material), nor did it refer to the transcript, whether of evidence or submissions….

[19]      These considerations require the applicant to identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record. As explained by Tate JA in Easwaralingam v Director of Public Prosecutions (Vic) [2010] VSCA 353; 208 A Crim R 122 at [25], a case apparently not involving an allegation of jurisdictional error:

‘[A]n application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material.  An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked.’”

In proceedings in the Supreme Court, the record will usually include:

• the originating process that initiated the proceedings under review: Craig v South Australia at 180; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; [2015] FCAFC 123 (ALS Industrial) at [94]; JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 (JE v Secretary) at [7];
• the pleadings (if any): Craig at 182; ALS Industrial at [94];
• the order or determination under review: Craig at 180, 182; ALS Industrial at [94]; JE v Secretary at [7];
• the reasons expressed by the court or tribunal for its ultimate determination: Supreme Court Act, s 69(4).

Other material, such as submissions and evidence in the proceedings below, or the transcript of those proceedings, is not part of the record unless the decision-maker incorporated it into the record, and then only to the extent of such incorporation: Craig at 182; Wende v Horwath (2014) 86 NSWLR 674; [2014] NSWCA 170 at [30]; ALS Industrial at [92]-[96]; Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189 at [36].

c) Significance of Categorising Grounds

There are three reasons why grounds must be identified with precision.

First, grounds involving error of law on the face of the record, but not jurisdictional error, may be removed by statute. The Supreme Court’s power to correct jurisdictional error is “the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court”: Kirk v Industrial Court at [98]-[99]; see also, Probuild Constructions at [29]. The supervisory jurisdiction is a “defining characteristic” of the Court, and cannot be ousted by statute: Kirk v Industrial Court at [99]-[100].  By contrast, the Supreme Court’s jurisdiction to review (non-jurisdictional) errors of law on the face of the record can be ousted by statute. (Such provisions are commonly called “privative clauses”.) So much is expressly contemplated by s 69(5) of the Supreme Court Act; see Probuild Constructions at [30], [57]-[59], [99].

One important example of such ouster is s 176 of the District Court Act 1973 (NSW). That section provides that “[n]o adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.” The effect of this section is that review of an exercise of the District Court’s appellate criminal jurisdiction, is only available for jurisdictional error: Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [9]-[10].

Secondly, the distinction between jurisdictional error and error of law on the face of the record has evidentiary consequences: see above, Allianz v Kerr at [18]-[19]. A claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose.  By contrast, a claim for relief based upon an error of law within jurisdiction must identify the error on the face of the limited materials that constitute “the record”: see AAI Ltd t/as GIO t/as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 at 359 [45]. Common examples of jurisdictional error established by evidence not forming part of the record are procedural unfairness and apprehension of bias: Wende v Horwath (2014) 86 NSWLR 674 at [31]; [2014] NSWCA 170.

Thirdly, and consequentially, judicial review is not be equated with a right of appeal limited to errors of law, let alone a general right of appeal: Allianz v Kerr at [19]. Accordingly, where such a right is available, it will generally provide a more effective remedy than judicial review.

The limited nature of the supervisory jurisdiction is reflected in the limited powers available to the Court.

As noted above, s 69 has varied the Court’s common law jurisdiction “to grant any relief or remedy or do any other thing by way of writ” by providing that no writ shall issue, but the Court shall make appropriate orders and give judgment accordingly: s 69(1); Probuild Constructions at [56]; Wende v Horwath (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416 (Wende) at [16].  The Court will therefore quash or set aside an invalid decision.

In Wende, the Court held that where a decision was set aside, but, as a matter of law, only one order was available, the Court had power to make such an order: Wende at [95]-[101].  That power is now confirmed by s 69(3)(b).

Section 48 of the Supreme Court Act assigns some judicial review proceedings to the Court of Appeal; otherwise, such matters are assigned to the Common Law Division by operation of s 49, subject to Part 7.  Review of proceedings determined in the criminal appeal jurisdiction of the District Court, or by a judge of the Supreme Court exercising non-judicial power (and hence not appealable), are assigned to the Court of Appeal; most other proceedings will be dealt with in the Division, but subject to appeal to the Court of Appeal.

All proceedings in the supervisory jurisdiction, irrespective of the nature of the error complained of, are governed by Part 59 of the Uniform Civil Procedure Rules 2005 (NSW), entitled “Judicial review proceedings”.

Importantly, where a decision is sought to be quashed, proceedings for judicial review of must be commenced within 3 months of the date of the decision: UCPR, r 59.10.  Failure to comply will require an application for an extension of time, which the court may grant, subject to consideration of the matters set out in UCPR, r 59.10(3).

Judicial review proceedings must be commenced by summons: r 59.3(1).  The summons must state “with specificity, the grounds on which the relief is sought”: r 59.4(c).  As stated in Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113:

“[68]    …The obvious purpose of [sub-rule 59.4(c)] is to ensure that the initiating process identifies clearly the legal basis on which the party aggrieved by a decision says that he or she is entitled to the relief claimed. The requirement is intended to ensure that the aggrieved party articulates a case for relief in the initiating process which defines the nature and scope of the dispute and enables the Court to assess what issues are likely to arise in the proceedings.”

Conformably with the obligation in r 59.4(c), a summons should identify which category an alleged error is said to come within (jurisdictional error or error of law on the face of the record or both), as well as particularising the error.

Where a party wishes to appeal to the Court of Appeal from a final judgment or order made in judicial review proceedings in the Common Law Division, whether an appeal lies as of right or whether leave will be required depends on the terms of s 101. Where, for example, the judicial review proceedings are sufficiently connected to a potential liability that exceeds $100,000, the appeal will be as of right: s 101(2)(r); see, eg, Hunter Quarries Pty Ltd v Alexandra Mexon for the Estate of the Late Ryan Messenger (2018) 98 NSWLR 526; [2018] NSWCA 178 at 536 [44]-[46].

An appeal from a decision given after a hearing in the Common Law Division is by way of rehearing: s 75A(5). The Court of Appeal proceeds in accordance with the powers in s 69: s 75A(6); Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at 307 [13]. Pursuant to s 75A(7), the Court of Appeal may receive further evidence.