Clark v Attorney General of New South Wales

The applicant, Clark, sought judicial review of the decision by the Attorney-General of New South Wales to refuse to consider or otherwise deal with an application made under section 78 of the *Crimes (Appeal and Review) Act 2001* (NSW). This application concerned inquiries into the applicant's convictions and sentences for child sexual offences. The applicant contended that the Attorney-General's decision involved a vitiating error. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Macfarlan and McCallum JJA.

The central legal issue before the Court of Appeal was whether the Attorney-General's refusal to consider the applicant's section 78 application entailed a vitiating error of law. This required the Court to determine the nature of the power conferred by section 78 and the extent to which a decision made in the exercise of that power could be subjected to judicial review, particularly when the applicant sought to contradict conclusions previously reached by the Attorney-General in exercising that power.

The Court of Appeal reasoned that the power vested in the Attorney-General under section 78 of the *Crimes (Appeal and Review) Act 2001* was a broad discretionary power. The Court held that the applicant had not demonstrated that the Attorney-General's decision to refuse to consider the application was affected by any error of law. The applicant's attempt to challenge the Attorney-General's conclusions was not a basis for vitiating the decision not to proceed with the section 78 application. The Court applied principles of administrative law concerning the review of discretionary powers, finding no grounds for intervention.

The summons was dismissed with costs.