Clark v Attorney General of New South Wales

The applicant, Clark, sought judicial review of a decision by a judge of the Supreme Court of New South Wales to refuse to consider or otherwise deal with an application for an inquiry into a conviction. The Attorney General of New South Wales was the respondent. The core of the dispute concerned the applicant's assertion that the judge's refusal constituted an error of law on the face of the record or jurisdictional error.

The Court of Appeal of New South Wales was required to determine whether the judge's refusal to consider the application for an inquiry under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW) was legally unreasonable, particularly in light of the weight (or lack thereof) accorded to a factor of great importance. The court also considered the nature of the functions performed by a judge when dealing with such applications, and whether there was a need for caution to avoid reviewing the merits of the decision.

Gleeson and White JJA, and Basten AJA, reasoned that the judge's function in considering an application for an inquiry into a conviction under Part 7 of the *Crimes (Appeal and Review) Act 2001* (NSW) is non-judicial. They noted that the applicant had made previous unsuccessful applications. The court held that where a judge has already considered and refused an application, there is no function to review the correctness of those earlier decisions. The refusal to consider or further deal with a fresh application, in circumstances where it was not open to do so, did not constitute an error of law.

The Court of Appeal granted the applicant leave to file the further amended summons for judicial review but ultimately dismissed the summons. The applicant was ordered to pay the Attorney General's costs in the Court.