Craig v State of South Australia

[1994] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Adelaide         No A40 of 1994

B e t w e e n -

ANTHONY DAVID CRAIG

Appellant

and

THE STATE OF SOUTH AUSTRALIA

Respondent

BRENNAN J
DEANE J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 1994, AT 10.21 AM

Copyright in the High Court of Australia

MR D.H. PEEK:   May it please the Court, I appear with MR R.B. HARRAP, for the appellant in this matter.  (instructed by Harrap & Associates)

MR J.J. DOYLE, QC, Solicitor-General for the State of South Australia:  If the Court pleases, I appear with DR N.A. MANETTA, for the respondent.  (instructed by B.M. Selway, Crown Solicitor for South Australia)

BRENNAN J:   Mr Peek.

MR PEEK:   If the Court pleases.  This is an appeal pursuant to special leave granted on 25 August 1994, and that grant of special leave appears in the appeal book at page 85.  As the Court knows, it concerns in the broad, first of all an order made by Judge Russell sitting in a criminal jurisdiction in the District Court of South Australia, and then proceedings in the nature of certiorari taken by the Crown ‑ ‑ ‑

BRENNAN J:   You can take it that the judgments have been read in the court below, Mr Peek.

MR PEEK:   Thank you, Your Honour.  The orders - perhaps that is being tendentious  - the matters that occurred in front of Judge Russell were contemporaneously noted on the back of the information, and the Court may see that at page 20 of the appeal book - the information commencing on page 19 and on the back of the information on page 20 - and one sees there, on the left‑hand side a little way down under the heading, ”Dietrich Application”, “His Honour Orders”, and those are the first group of orders that His Honour made on 23 June 1993, as later on that page certified by the clerk of arraigns.

Those orders really were in the nature of an adjournment, if I can put it that way; adjournment orders taking a trial out of the list really.  But it was done on the basis as to whether anything further could be done in relation to representation of the accused.  However, nothing further was done and the Court sees the second set of orders made by Judge Russell on 28 July 1993 immediately below there.  On that occasion His Honour ordered a stay of proceedings until further order.

Now, one also sees in the appeal book a transcription of the reasons that were given by Judge Russell on those two occasions that I have already mentioned.  The first commences at page 1 of the appeal book, and the Court has read that no doubt so obviously I do not go through that.  I do, of course, point out that that particular page is settled by His Honour, as it appears at the top there and, as I say, His Honour gives some reasons.  But at page 6 of the appeal book, half a dozen lines down or so, His Honour there makes the orders, or rather there is the transcript of what he said which, of course, corresponds to that which was contemporaneously noted down on the back of the information.

Then at page 7 of the appeal book once again we see the later transcript of what His Honour said at the time on the subsequent date, 28 July 1993.  One sees there the way in which it came to be relisted and the wish of the Crown:

Ms Vanstone:   .....to crystallise the position -

at page 8, and that His Honour then made an order staying the proceedings which, as I say, was noted on the back of the information when it was made.

The proceedings in the Full Court were pursuant to rule 98 of the rules of the Supreme Court, and it is here that I am turning to my outline, if I may, at the very beginning of it.  I simply there adopt Your Honour Justice Brennan’s words in the Public Service Association ‑ I do - that we are looking at the traditional test or tests, although the format and procedure has changed somewhat.  I do not think that is a contentious issue on this appeal, namely, that the scope of the remedies available by way of judicial review does not relevantly exceed the scope of the remedies theretofore available by the grant of those prerogative writs.  So on that basis we make the fundamental submission then that it was necessary to establish either jurisdictional error or error on the face of the record. 

Turning to jurisdictional error, it is submitted that no jurisdictional error appeared, even if one were to take into account all of the material that was submitted to the prosecutor before the Full Court.  As the Court knows, that was objected to by the present appellant but was received by the Full Court.  We say that in relation to jurisdictional error, of course, it is recognised that evidence by way of affidavit, for example, in an appropriate case, could be led to establish a jurisdictional error in the correct sense which would not, of itself, appear on the record.  I appreciate that but, of course, what I am saying here is that no jurisdictional error was proven by that acceptable method.  And, of course, even if one took into account all of the plethora of material that was referred to by the Full Court, none appeared on that.

It is submitted that in fact what occurred is that, with respect, the majority of the Full Court did not really adequately address the question of the requirements of the jurisdictional error.  My submission in relation to Anisminic, which of course is relied upon by Justice Matheson ‑ indeed, it really is the only authority, I think, that he does mention ‑ is that its effect for Australia is relatively limited.

It is my submission, as I put in the outline at paragraph 4, that really the authorities in Australia establish that that decision simply serves to point up that an error of law may amount to jurisdictional error, even though the tribunal which made the error had jurisdiction to embark on its inquiry, but that it is recognised that there is still the dichotomy of mere ordinary error and jurisdictional error, and jurisdictional error must go to a fundamental matter of jurisdiction.  Can I take the Court, if I may, to that case of the Reg v Gray; Ex parte Marsh, 1985) ‑ ‑ ‑

DEANE J:   Mr Peek, before you do that, could you, just to provide the background setting, briefly indicate to me why no appeal lay from the order for an indefinite stay.  I am not suggesting you go into detail; I would just like to see why.

MR PEEK:   I am sorry, Your Honour, I should have done that.  It is simply this, that the Crown had no right of appeal.  That is the simple answer, Your Honour, and that is agreed on both hands.  My friend reminds me that this is ‑ for completeness, I suppose.  In South Australia one can have what is called an Attorney‑General’s reference after a result.

DEANE J:   Yes, I appreciate that.

MR PEEK:   Yes, but that has got no application here.

DEANE J:   But the simple position is that the Crown has no right at all to an appeal in the ordinary sense from what, any decision of a judge of the District Court in a criminal matter?

MR PEEK:   No, because of course the Crown would have the ‑ ‑ ‑

DEANE J:   Apart from sentence.

MR PEEK:   Yes, I was going to say that, Your Honour.  Apart from sentence, I think not.  The position is as I put it.

DEANE J:   So we can say that apart from sentence and an Attorney‑General’s reference, the Crown has no right of appeal from a decision of a District Court judge in a criminal matter?

MR PEEK:   That is my definite understanding.

DEANE J:   I notice the Solicitor is nodding, so we can say that is common ground.

MR PEEK:   Yes, Your Honour.  Was there something else of the background that Your Honour wanted?

DEANE J:   No, that was all.

MR PEEK:   Could I take the Court to the case of Gray, (1985) 157 CLR 351. Many of these cases of course are factually complex and I am obviously going to be as quick as I can. Can I simply, without being too simplistic, put it this way, that the area of dispute in this decision was as to whether the Federal Court did or did not have power to determine conclusively a matter on which its own jurisdiction depended. As to the resolution of that particular question, the Court was divided, with Chief Justice Gibbs and Justices Wilson and Brennan being of the view that it did not have such power, whereas Justice Mason, as he then was, and Justices Deane and Dawson thought that it did.

It is submitted, with respect, that that does not really matter in the present case because what all of the members of the Court did accept was that there was a continuing distinction between an erroneous assumption of jurisdiction on the one hand, and a mere error in its exercise on the other.

Now if I could just take as it were Chief Justice Gibbs and indeed Justice Mason as he then was as representative of the two factions, if I could put it that way, in that case, just to show that in fact on the principle for which we contend, Their Honours were ad idem.

So that if I can simply go then to those page references that are foreshadowed there at paragraph 4, namely 371 of the volume, Chief Justice Gibbs.  The  case was addressing prohibition but for particular purposes it is equally relevant for certiorari in this particular instance and it is the passage that begins at about point 3 on page 371 with a new paragraph, “The question that remains”, His Honour recognises or says:

There is a well recognised distinction between an error made by a tribunal in the course of deciding a matter, on the one hand, and an absence or excess of jurisdiction on the other -

citing cases that -

the question on which side of the line a particular case should fall may be a very difficult one.

And that in relation to Anisminic His Honour said this:

Since Anisminic Ltd v. Foreign Compensation Commission it has been more clearly understood that an error of law may amount to a jurisdictional error even though the tribunal which made the error had jurisdiction to embark on its inquiry.

His Honour there produces an extract from Lord Wilberforce and I will not read that and His Honour continues over the page in like vein.  But the Court will note that there is no shadow of what might be termed the broad approach or broad interpretation of Anisminic being countenanced by His Honour and we say the case went no further than the proposition for which I cite it.

And indeed, if I can now turn to Justice Mason as he then was, who it will be remembered was differing on the actual result of the case, but in relation to this matter of principle at page 377, it is only a very short passage if I can trouble the Court, His Honour said where one sees Anisminic referred to at about point 2 or 3:

That case decided that where a tribunal misconstrues the statute which gives it jurisdiction, the tribunal may address itself to the wrong issue and thereby exceed its jurisdiction.  On the view which I have expressed the Court did not address itself to a matter outside its jurisdiction.

GAUDRON J:   In this case, are you not at the very heart of jurisdiction?  Is this case not about a refusal to exercise jurisdiction by staying the proceedings, so that you really have to say “What are the circumstances in which jurisdiction may be declined?”, and if there is an error about those you have, I would have thought, a jurisdictional error, quite apart from anything that happened in Anisminic.

MR PEEK:   Your Honour, we go back a stage and say that His Honour had a series of discretions to exercise in the course of criminal proceedings, if I can use that ‑ ‑ ‑

GAUDRON J:   But all of them went to jurisdiction - did they not go directly to the exercise of jurisdiction?

MR PEEK:   We would say not, Your Honour.  We would say that His Honour was - - -

GAUDRON J:   What is a stay, other than a refusal to exercise jurisdiction?

MR PEEK:   You see, Your Honour, in considering the application for a stay His Honour was exercising his jurisdiction, because he had to address that in the wider concept of criminal - - -

GAUDRON J:   His Hobour was declining to exercise jurisdiction then.

MR PEEK:   That may be one view of the result of His Honour’s ruling, but you see it was not as though His Honour came into court and said “I am not going to hear the parties”.  His Honour comes into court and says, “I proceed to hear the parties - - -

GAUDRON J:   He said he would not hear the prosecution.

MR PEEK:   His Honour heard both sides.

McHUGH J:   But the trial judge has refused to hear the criminal trial.  Now, what is that except a refusal to exercise his jurisdiction?  It is about as plain a case of refusal of jurisdiction as can be imagined, I would have thought.

MR PEEK:   What I am simply saying is that - - -

McHUGH J:   The question is, whether there was an error.

MR PEEK:   And certainly I will come to that, but can I just put it in this way - that His Honour was exercising his jurisdiction to hear the relevant applications in the normal course of a criminal proceeding, and His Honour heard both sides to that application and made a ruling.  Now, it may be that the effect of that ruling is that there is no trial, but given that His Honour had the power to make such a ruling, then so be it.  In other words, it was not a matter of him refusing to do what the law commanded him to, but rather him carrying out that very thing.  In other words, ruling yes or no on an application for a stay.  Given he had the power to make the stay if he so ruled, he had the duty to say yea or nay.  If after hearing both sides in due course, His Honour rules that there should be a stay, then what His Honour has done is acted within jurisdiction for those purposes, in my submission. 

Now, it is simply happenstance that the effect of this particular ruling, on this occasion, is that there will be no trial, because he has ruled in favour of the prosecution.  That is my argument about that - that he is within jurisdiction, and any question as to whether he has erred, at most - if indeed he has, and of course we say he has not - is an error within jurisdiction.

In any event, we say that that distinction as to jurisdictional error and mere error within jurisdiction is recognised post‑Anisminic, if I can put it that way, by a number of decisions in this Court.

If the court has addressed itself to completely the wrong issue or the wrong question which goes to jurisdiction then, of course, that is another way that one can phrase the inquiry as to jurisdictional error.

McHUGH J:   Maybe I am missing something here, but I would have thought that the proper remedy for the Crown in this case was mandamus rather than certiorari.

MR PEEK:   Your Honour, the Crown did apply for mandamus as well as certiorari, but the court, having made an order for certiorari, it did call on the parties as to whether any further orders were sought, and no further orders were sought in relation or in the nature of mandamus.

It is submitted that the broader interpretation of Anisminic, namely, the addressing to any wrong question or anything that might be formulated, dressed up as a wrong question as it were, has not been accepted in Australia and should not be, and there are a number of authorities to that effect, one of which, of course, is Public Service Association (SA) v Federated Clerks’ Union, (1991) 173 CLR 132, and in particular at page 141 by Your Honour Justice Brennan. If I can go to the first new paragraph on page 141:

Apart from the express exception (“excess or want of jurisdiction”), it would be necessary to determine whether the error of the Full Commission was jurisdictional or non‑jurisdictional.

Then there is a reference to privative clauses with which we are not presently concerned, and then the statement:

This Court has not accepted Lord Diplock’s 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.  That distinction was maintained by this Court in Houssein v Under Secretary of Industrial Relations, Hockey v Yelland -

and indeed, by the Judicial Committee of the Privy Council.

Now, I wonder if I can go to Anisminic, [1969] 2 AC 147, briefly, and in particular to the judgment only of Lord Morris; the other judgments, particularly that of Lord Reid, are well-known of course. The judgment of Lord Morris really epitomises, or sets out, in a particularly useful way the contentions that we presently make.

The judgment of Lord Morris of Borth‑y‑Gest starts at 175, but if I can go ahead somewhat, to just go to certain passages.  First of all at page 181, the very short passage, at about letter D:

There would be no difficulty in raising any matter that goes to the right or power of the commission to adjudicate (see Reg v Bolton (1841) 1 QB 66). What is forbidden is to question the correctness of a decision or determination which it was within the area of their jurisdiction to make.

We say that is the test that has been recognised, and still continues to be recognised by this Court.  Then if I can skip over to page 183, we there have a number of the authorities set out briefly and succinctly, if I may say so.  First at the top, Reg v Governor of Brixton Prison; Ex parte Armah:

“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision.  If he has jurisdiction to go right he has jurisdiction to go wrong.  Neither an error in fact nor an error in law will destroy his jurisdiction.”

Then going down, immediately below, to the end of the quotation from Rex v Northumberland Compensation Appeal Tribunal, the last sentence simply:

A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction.”

And as His Lordship recognised:

In the Northumberland case the whole argument proceeded on the basis that the error or errors of law were within jurisdiction.  The judgments would have been quite unnecessary if it could have been asserted that error or construction was tantamount to excess of jurisdiction.

Then in the next passage, immediately below, from the speech of Lord Sumner in Rex v Nat Bell Liquors Ltd. Here Lord Sumner really addressed what we would wish to put to the Court, and it is this:  the question of the inferior court or tribunal’s jurisdiction is not the be‑all or the end‑all, but rather indeed it is a question of the jurisdiction of the reviewing court, because of course if the reviewing court goes too far and reviews when it is not authorised to, given that the government decided there will be no right of appeal, then of course the court that is going outside its jurisdiction is really the reviewing court.

So there is a certain tension here between the inferior and the reviewing courts, and it is that tension that Lord Sumner addresses in that decision and, in particular, in this passage:

“Its jurisdiction is to see that the inferior court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined.  That supervision goes to two points:  one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise;  the other is the observance of the law in the course of its exercise.”

If, therefore, a tribunal while within the area of its jurisdiction committed some error of law and if such error was made apparent in the determination itself (or, as it is often expressed, on the face of the record) then the superior court could correct that error unless it was forbidden to do so.

TOOHEY J:   Mr Peek, what was the error of law identified by the Full Court in this case?

MR PEEK:   If it please Your Honour, we submit that one, there was no error of law;  and, two, it really has not been identified as such.

TOOHEY J:   My question went to identification ‑ ‑ ‑

MR PEEK:   Yes.

TOOHEY J:   Not the correctness of the identification ‑ ‑ ‑

MR PEEK:   No.

TOOHEY J:   Perhaps I could just interrupt you by saying I ask you that because if you look at the summons itself on page 10, the grounds offered in support of prerogative relief in paragraph 4.1 is that there was an error in the exercise of jurisdiction in that on the facts it was not open to the trial judge to conclude that the accused was indigent.

MR PEEK:   Yes, and we would say that that is praying in aid a Wednesbury test, a test of no evidence to support, as distinct from a weighing of some evidence.  Now, we would submit, as is illustrated by Justice Olsson and we would, with respect, adopt His Honour’s view of the position in relation to the evidence,that clearly, there was some evidence, at the least, to support His Honour’s view of the matter; that there was simply no chance of establishing a situation where no reasonable tribunal could possibly or properly come to this decision. 

Now, it certainly appears that it was on a weighing or balancing of evidence approach that the Full Court proceeded.  If I can take the Court to the judgments, the first being that of Justice Matheson in his ‑ ‑ ‑

TOOHEY J:   In doing so, can you take us to what appears to be as close as the majority got in identifying the jurisdictional error or the error of law?

MR PEEK:   I will attempt to do so, Your Honour, but I am not saying ‑ ‑ ‑

TOOHEY J:   When, in a sense, that is not your case ‑ ‑ ‑

MR PEEK:   No.

TOOHEY J:   But that is really something perhaps for the Solicitor, but just take us to what appears to be the closest the court got.

MR PEEK:   All right.  Can I take it in this way, by broad steps.  His Honour initially sets out certain material which it is not necessary to refer to. His Honour, however, from time to time, refers to certain facts that were not referred to by His Honour, certain documents that were not referred to by His Honour.  That, of course, forms part of a different limb of our argument, that the Full Court were just not entitled to do that, but what I am saying is that in their procedure, in their progress to the ultimate passing on what is contended to be a matter of law, they have purported to do that.

That continues until that point where His Honour Justice Matheson refers to Dietrich at the bottom of page 60 and then sets out lengthy extracts, up to page 64.  Then really, if I can say so, at page 64 is the only analysis as far as I can see by Justice Matheson of this matter of jurisdictional error, because His Honour says there just below line 40:

As to the question whether the plaintiff has demonstrated that his Honour’s decision reveals the necessary jurisdictional error for the relief that he seeks, I refer to a passage if the oft‑quoted speech of Lord Reid ‑

which His Honour reproduces.  His Honour then goes to Dietrich’s case on page 65 and, through the context in which he puts it, and indeed his underlining there at line 40, His Honour seems to be fastening on this as in some way an error of law perhaps, that one had to positively discharge an onus that there was no fault on the applicant’s part.  That seems to be the approach that His Honour Justice Matheson is taking.

TOOHEY J:   But does it not really come down to the last three or four lines on page 66, Mr Peek:

If all the facts had been properly investigated and the decision of the majority in Dietrich properly understood, his Honour’s decision may well have been different.

MR PEEK:   Yes.

McHUGH J:   And you have to add to that what appears at line 7 on that page:

I have reached the conclusion here that his Honour misconstrued their Honours’ reference to an accused being unable to obtain legal representation ‑

et cetera.

MR PEEK:   In answer to Your Honour Justice McHugh, yes, I do add that in, and indeed that is why I was saying that His Honour was emphasising this matter of fault and putting that forward as an important matter of construction, and I was leading up to that.  But we say that in fact it can in no way be demonstrated that His Honour in any way misconstrued the reference in Dietrich’s case, that there is no error of law here demonstrated.

The second aspect that Justice Toohey has referred me to is of course encapsulated at the bottom of that page, and we say that this is as plain as plain, if an error at all, which is denied, a matter of fact as distinct from law.  I cannot put it any more specifically than that.  It is a situation, as I said before, where the only way you could get an error of law out of something like that is if there is absolutely no evidence upon which any reasonable person could come to the conclusion.  The court has not taken that test.  They have put a quite wrong test and have approached the matter of judicial review, we would submit, in the manner of an appeal.

We would say that this could perhaps be explained by the fact that Your Honours have taken this passage from Lord Reid all right and applied it in the broadest way possible but have not looked at those authorities to which I have made brief reference in Australia - - -

McHUGH J:   But when you read what His Honour said at 66:

If all the facts had been properly investigated -

does that not take you back to a series of statements that are made from 58 through to 60 where at 58 line  40, His Honour says:

There are some relevant facts that are not referred to in His Honour’s reasons.

And then he refers to those and then on 50 says he did not refer to the admission that he broke bail and then on 60 at line 30 he also did not refer to facts that things were stolen, et cetera, et cetera.

MR PEEK:   That is right and I could have foreshadowed - - -

McHUGH J:   They seem to be what His Honour has got in mind at the bottom of 60 when he says:

If all the facts had been properly investigated.

MR PEEK:   But we say a couple of things.  The first I have already foreshadowed is this, that the Court simply will not permit it - just for example, taking that long letter that the court reproduces - to receive that letter and act upon it on a judicial review application and because it was certainly not specifically incorporated by His Honour in the determination. 

But putting that aside and taking Your Honour’s point more in the broad, even so, it is a matter at most of a disagreement with the exercise of His Honour’s discretion on the facts or a finding on the facts perhaps, but cannot go to the length that it would have to go to demonstrate an error of law.

BRENNAN J:   Your first proposition cannot be supported, can it, that Their Honours could not look at it?  If Their Honours were inquiring whether or not there was a jurisdictional error, they were perfectly entitled to look at it.

MR PEEK:   That is true, and in fact I have already said so.  I agree, of course.

BRENNAN J:   So what it comes down to is whether the matters which His Honour then summarised at page 66 are such as to indicate the existence of a jurisdictional error on that approach.

MR PEEK:   Yes.

GAUDRON J:   And is there perhaps another way of looking at it, namely, if one proceeds on the basis that what was in issue was whether the trial judge would or would not exercise jurisdiction, his power or discretion not to exercise jurisdiction depending on particular facts, whether one then comes to much the same sort of issue as that on which this Court divided in R v Gray; Ex parte Marsh, namely whether it is for the trial judge conclusively to determine matters upon which he, or if it is a she, she can refrain from exercising jurisdiction?

MR PEEK:   Yes, I understand exactly what Your Honour is putting to me and I do not disagree with respect in the abstract.  Applying it to the facts here, I say it is not one of those cases which falls on the line of, as it were, can I put it, a condition precedent as it were to jurisdiction at all because let us look at it.  His Honour is sitting in the normal way and here is yet another case that comes before him.  Now its happenstance as to what, if any, applications are made by any particular accused including this one.  But what is quite clear is that the judge is there to hear those applications.

So that, in no realistic sense is there a preliminary threshold condition precedent to be asked, what a minute, can I hear this application, but rather it is simply, what facts are you adducing?  Apply the law to the facts.  But that is, I say, a commonplace.

It is perhaps pointed up in this case because, by happenstance, as it were, the end result of a particular ruleing one way or the other is that there is no trial, but we must divorce those two concepts, in my respectful submission.  So that what I say is that then His Honour is acting clearly within jurisdiction in a rather usual way, namely, construing, looking at decisions of the High Court, in this case Dietrich, and weighing up matters of fact.

It is our submission that what Dietrich says is, putting it very briefly, this, that look, if an applicant comes along to Court and establishes serious offence, established here; he is indigent, established here; he has not got sufficient capacities ‑ he is not an ex‑layer or something ‑ to defend himself, and indeed here the man clearly did not have any expertise, had a speech impediment and all the other matters that have been alluded to in the judgments, then he is a candidate for a stay because you are going to have a trial that is very likely to be relevantly unfair if he does not have representation.  If he can go one step further and also establish that these matters were through no fault of his own, then he has got an almost insuperable case for a stay.  Indeed, it would only be in the most exceptional cases that he would not get it. 

But you see my respectful submission is a simple one, and I suggest it is an important one, with respect, and it is this: it is not a condition precedent to the exercise of jurisdiction to grant a stay that a man establish that it was through no fault of his own.  That is merely a factor to be taken into account to weigh in the scales.  Because my submission is that no matter how you get to the dock in front of the jury without a lawyer, the prejudice in terms of the likelihood of an unfair trial starts from there and is going to be the same.  The rest is background. 

I appreciate, of course, that you can have a situation like that decision of Greer in New South Wales, alluded to in Dietrich, where the man was being completely frivolous and dismissing lawyers all over the place and just not making an effort to co‑operate, and in those circumstances it was so clearly a matter of his fault, that it was thought that that could be taken into account in the particular circumstances.  But what I am saying is that each case must be looked at on its own features, its own facts, and a trial judge might well say, “Look, you are a reprehensible individual” ‑ and, of course, many people who come before the criminal courts are anyway ‑ “and it is rather your fault that you have got yourself into this situation, but we have got to put that behind us and say:  can you get a fair trial?”.

It is my submission that the Full Court here has really put the cart before the horse and as Justice McHugh pointed out to me, or as I said in response, it certainly seems that they have fastened upon this phrase in Dietrich “through no fault on his or her part”, which, I submit, was really in the context of illustrating a strong case for a stay but used it as some sort of necessary condition precedent.  It would only be, to revert back to Your Honour’s question, for example, say you had a statute which said, if an accused person can satisfy the following matters, 1, 2, 3, 4, 5, and one of them being, he is not at fault or through no fault of his own, then a judge can proceed too.  That would be the ideal situation that Your Honour puts to me. 

It is my submission that that is not this case and, indeed, Dietrich, and this very case in the Full Court, rather, are a useful illustration of which side of the line this sort of thing does fall on.

TOOHEY J:   But a Dietrich order would not ordinarily give rise to a permanent stay, as opposed to the sort of stay that was canvassed in Jago.  I mean, the most the judge could do was do what was done here and to further order.  That might, in practical terms, have the effect of a permanent stay but it could readily be set aside upon proof if the Legal Aid Commission was prepared to assist, or someone was prepared to give pro bono services or other circumstances had change.

MR PEEK:   Definitely.  Yes, and can I take that one step further, Your Honour?  What in fact happened here, if one does go to the content of what His Honour said on that second occasion was that the option had been given to the Crown to decide whether, in view of what His Honour had previously said, the Crown would be prepared to fund the defence.  This, in fact, has been a course that has been adopted in a number of cases in South Australia that that has happened.  Now, the Crown decided that they would not and, therefore, asked that the matter be brought back on, and as Ms Vanstone said - and this is at page 7 of the appeal book - and can I just perhaps read this out because it has now become rather important, I think - at line 25:

The reason the matter has been listed at the Crown’s request is that I am instructed by the Attorney‑General to advise your Honour that he doesn’t intend to make any particular provision for Craig’s representation.  As far as I know, the Attorney has not responded to the Registrar on our undertaking to put that information before your Honour.

So the position is, as I understand it, that no legal representation is available through the Legal Services Commission and your Honour, of course, has heard evidence about that and the other avenue which apparently presented itself as a possibility is not going to be a fruitful one.  In those circumstances, the Crown’s request is that your Honour re‑list the matter for trial.  We say, of course, that in our submission the accused is not without legal representation through no fault of his own.

You see, even there, it is being couched in this language of conditioned precedent.  We go on from there and Ms Vanstone says that she wanted to crystalise the position for His Honour:

Our request is that the matter be listed for trial again.  It seems clear that your Honour won’t be disposed to make such an order and, in those circumstances, we suggest that the matter should be stayed, pending Mr Craig obtaining legal representation through his own resources.

TOOHEY J:   Is there no practice in South Australia whereby the court contacts the Bar Association, the Law Society, in cases of this sort and asks for a volunteer, in effect?

MR PEEK:   No, Your Honour, that has not been done for many, many years.  Something of that nature did occur many years ago, but absolutely not at the moment.  Really it is because of the advent of the Legal Services Commission and the provision in an organised way of legal aid.  Your Honour, the reason why it has fallen into disuse is that, although there was the provision to do that by the court, it depended on funds being voted by Parliament and the trial judge would then certify the appropriate costs.

TOOHEY J:   I was not actually thinking of funds.  I used the term “volunteer” deliberately.

MR PEEK:   Yes, you did, Your Honour.  But what I am saying is perhaps a wider background.  Due to the advent of the Legal Services Commission, no money has thus been voted.  That has just been abandoned and the question of the court asking for someone to act pro bono just has not arisen.  So that His Honour of course was being very careful because His Honour even now did not make a permanent stay but did it in the terms that Your Honour Justice Toohey has alluded to.

In those circumstances, we submit that quite clearly there was no jurisdictional error of law within the meaning that that continues to have in Australia.  There is another skein, as it were, of a problem which perhaps I can allude to without taking much time on, and that is that which is alluded to at paragraph 6 of the outline, as I have to give the Court simple reference to two other cases which have gone the other way since then.  Can I just simply read paragraph 6, that while a broad interpretation was postulated in In Re Racal Communications Ltd by Lord Diplock, His Honour in that judgment specifically limited his remarks to administrative tribunals or authorities as distinct from courts of law.  The Court will no doubt be familiar with His Honour’s judgment in that regard.

In the subsequent decision of Reg v Surrey Coroner, the divisional court specifically applied that and stated in terms that the principles in Anisminic had no application to a court.  I should hasten to add that the position does not remain as simple as that because, if one goes to the later decision of O’Reilly v Mackman, (1983) 2 AC 237, at 278, His Honour Lord Diplock appears to have gone back the other way. What His Honour there says does, with respect, appear to be somewhat inconsistent with what His Lordship had said in In Re Racal.

Arising out of that, in the subsequent decision of Reg v Greater Manchester Coroner; Ex parte Tal, (1985) 1 QB 67, the divisional court decided not to follow their previous decision in Reg v Surrey Coroner.  I am not going to try to make sense of that, with respect; simply to say that the position in England has waxed and waned and is somewhat less than certain.  But it is our submission of course that it is the position in the High Court that is the important one.

In BHP ‑ and I am now simply turning from those English authorities, if I may, and just go to BHP Petroleum v Balfour, (1987) 61 ALJR 345 ‑ there was a joint judgment. A short passage that I would like to refer to appears at page 347, about half‑way down column 2:

The approach to be adopted can be expressed by using the words of Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at 382‑383 where after referring to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, his Lordship said:

“It proceeds on the presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined...So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do....”

So that there may be a clear distinction between courts on the one hand and administrative tribunals on the other.  Certainly that appeared to be the position come to in re Racal and, to the extent that the court cites that decision - you do have that citation in Balfour, but I have called to the Court’s attention those other subsequent decisions in England.

It may be that it is not as black and white as that, but that when one is deciding what jurisdictional error is one bears very much in mind the context in which it is being examined and that, therefore, the supervising courts should be very much more cautious when they are dealing with a court composed of experienced judges appointed for that purpose, as distinct from a statutory administrative tribunal, which might well require much more supervision.

Now, here you have a situation where the court has delivered a reasoned judgment and conducted the proceedings, for all it appears, perfectly correctly and properly.  Indeed, you have a situation where an accused person has had an order made in his favour.  I am not saying that the principles of double jeopardy necessarily directly apply but there is something of that flavour not to entirely be forgotten in a case such as this.

So that when, as it were, the court wishes to complain of an order made by a properly constituted court in favour of the liberty of the individual, and not forgetting that the Crown had it within its own power to have the man tried simply by providing the funds, then it is my submission the Court should be fairly chary about automatically treating this as tantamount to an appeal because, with respect, that is rather the way that it did go below.

Now, with regard to the position of the District Court, the District Court is declared to be a court of record but not a superior court of record.  That matter is not addressed.  It is simply declared to be a court of record.  The question does arise, and it is not an easy question to answer, as to whether that does mean it is a superior court of record for present purposes.

Now, can I simply hand to the Court, and I have provided to my friend, an extract from the work of Judge Lund on the rules in South Australia - it is only one page - and he is addressing the question of whether the District Court is a superior court of record, and His Honour appreciating that there are decisions either way but none, of course, in this jurisdiction.  If I can hand up nine copies.  It really is that second section on that page, “DCA s5.5”, that addresses this rather difficult matter.

TOOHEY J:   Ordinarily it is spelt out, is it not, in the statute that establishes the court in question?

MR PEEK:   It is not in this particular case, I am afraid, Your Honour.

TOOHEY J:   No, I appreciate that.  The next step is what inference flows from that:  can it be a superior court of record if the statute establishing it does not declare it to be so?

MR PEEK:   The approach, as His Honour says, in Western Australia has been that it can be because it has all the powers of a superior court on indictable offences.  So in other words perhaps it may be a superior court for the purposes of criminal proceedings, but not necessarily in regard to all purposes.  That is a complicating factor, but there are decisions the other way.

BRENNAN J:   What is the significance of its status other than to define the presumption of the existence of jurisdiction in a given case?

MR PEEK:   Your Honour, I would submit that certiorari will not go to correct the errors of a superior court.

BRENNAN J:   It constantly goes from this Court to Federal Courts.

MR PEEK: Yes, but I thought that that was something rather unique and involved with the Constitution in terms of the definition of “an officer of the Commonwealth”, and hinges rather on that. There are a number of cases on that, but I submit that that is the position, with respect.

McHUGH J:   I come from New South Wales and as the commentator says, it has just never been questioned that the District Court in New South Wales is other than an inferior court.

MR PEEK:   Yes, I understand that.  That is why the Court will perceive this has perhaps been put somewhat more tentatively than the rest of my submissions, but it is a matter that I say there are decisions either way on, and for the proposition, Your Honour, that certiorari will not go to a superior court, for example, there is the passage in the judgment of His Honour Justice Dawson in Reg v Gray; Ex parte Marsh, 157 CLR 395. If I can just very briefly go to that, half‑way down page 395:

Certiorari as well as prohibition was, however, claimed.  That raises different considerations.  As the judgment of Wrottesley LJ in R v Chancellor of St Edmundsbury and Ipswich Diocese shows, certiorari does not lie to correct the errors of superior courts.

His Honour also referred to R v Metal Trades Employers’ Association and continued -

one question which arises is whether Parliament has, by declaring the Federal Court to be a superior court, excluded certiorari as a means of challenging its decisions. Section 75(v) of the Constitution does not stand in the way because it does not extend to certiorari and clearly recognises prohibition as the remedy for a court acting in excess of its jurisdiction.

His Honour then went on to refer to a number of the cases that I was alluding to a little while ago as to this rather unique situation of the High Court and the Constitution apropos this.

But that does not apply in the present situation, with respect, and so there is a real question if, indeed, certiorari should go at all but, of course, it may not be necessary to address that given the other arguments that have to be encountered first.  If I can pass from that rather knotty problem.

The next submission that we would wish to make has perhaps already been foreshadowed and made, at paragraph 9, that the majority simply paid no sufficient attention to the many strictures in the authorities to the effect that judicial review must not become, or be the occasion for, an examination of the correctness of the tribunal’s decision, or of the weight of the evidence adduced.  It seems to me it would be trite for me to trot out those authorities.

It is submitted, in the light of all of that, that His Honour Justice Olsson was clearly correct in requiring that a jurisdictional error of law be a fundamental one going to the root of the jurisdiction conferred on the decision maker.  I wonder if I could go to His Honour Justice Olsson’s decision then, and it commences at page 70 of the appeal book, and if I can basically take the Court through his judgment and deal with all of the aspects that I would want to deal with concerning his judgment rather than just attack it piecemeal, as it were. 

At page 72, the first page of His Honour’s judgment, between lines 15 and 20, His Honour decided that Judge Russell ‑ ‑ ‑

TOOHEY J:   Can I just ask you why you are carrying out this exercise rather than going to His Honour’s conclusion, Mr Peek?

MR PEEK:   Certainly, I can go to His Honour’s conclusion ‑ ‑ ‑

TOOHEY J:   Well, it is a question really.

MR PEEK:   Yes.  It is His Honour’s conclusion that we rely on, obviously.

TOOHEY J:   What he is saying, or his conclusion appears to be on page 76, does it not, in the middle of the page?

MR PEEK:   Yes.  The scene for that is set at the previous page as to the way that the application was put by my learned friend.  That, first, there was a contention that there was “jurisdictional error” and:

that the learned Judge -

had -

applied what was tantamount to a moral test, whereas the word “fault” had been employed by the majority of the High Court.....in the sense of “due to circumstances beyond the control”.....It was on that basis -

it was said that Judge Russell fell under “jurisdictional error”.

His Honour then goes to examine what is involved in jurisdictional error at 76, and says:

that the question is whether the error of law was a fundamental one that went to the root of the jurisdiction conferred.....not satisfied by the mere demonstration of some error of law -

His Honour concluded that he was in -

no means fully convinced that the error -

said to have been:

made satisfies the stringent test -

and, indeed, His Honour disagreed with my learned friend as to the construction for which he had been contending.

His Honour came to the conclusion in relation to Dietrich that the majority, or indeed the whole court, if I can say so, were not concerning themselves with moral assessments, nor an absolute unqualified requirement of circumstances beyond the control of the accused on the other.  My terminology was to require a condition precedent but this is much the same, the way that Justice Olsson puts it.  He says:

In my opinion what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.

Of course, I would go further and say, and even then there is a real question to be decided by the trial judge as to whether a stay should be granted, bearing in mind the unfair trial that may follow.  His Honour then, at page 77, second paragraph, said:

Any objective appraisal of the reasons for decision expressed by Russell DCJ amply indicates that that is precisely the approach which he adopted.  He was not concerning himself with moral issues, but the reasonableness of the conduct of the accused, given the situation in which he found himself.

His Honour appreciated, or recognised, that the conclusion ultimately to be reached on the evidence is one on which various minds might differ but that it was not jurisdictional error.  That would bring to a close His Honour’s examination of jurisdictional error and His Honour then turns at line 25 to the question of error of law on the face of the record.

BRENNAN J:   Do you wish to propound any criterion for determining whether an error is jurisdictional or not? 

MR PEEK:   Attempts have been made to do that in many, many cases and the difficulty is obvious.  But one can see things which do constitute it, such as a requirement to satisfy some definite condition precedent, often statutory, that an inquiry in relation to that will go to jurisdictional error, whereas at the other end of the spectrum mere error of law or a decision on the facts will not.  Between those two ends of the spectrum obviously there are situations upon which minds will differ and, indeed, if I can say so, that case of the Reg v Gray in which this Court split, is an example of that.

I do not know that I am in a position to propound a concrete test that has not yet been propounded, but I say that it must be closely, directly and intimately linked with a matter going to jurisdiction, as distinct from the mere exercise of jurisdiction.  I appreciate that that still leaves an element of circularity but I do not know that I can do much better than that.  What I say here is that, by whatever touchstone you go, Judge Russell was simply exercising jurisdiction, finding facts and applying the law.  If he went wrong, so be it.  That does not convert it into a jurisdictional error.

GAUDRON J:   Why, if we are looking at certiorari, are we looking for jurisdictional error anyway?  I thought one looked only for error on the face of the record.

MR PEEK:   Well, there are those two limbs to the approach and I have been concentrating - - -

GAUDRON J:   I can understand the more recent development in which certiorari may be granted as an aid to one of the other writs even though, in the circumstances, they are not made out if there is a jurisdictional error.  Is that the reason why we are looking at it in this case?

MR PEEK:   Really it was put to the Court that there are two ways of approaching it, the matter of certiorari, by my learned friend; either jurisdictional error or error on the face of the record, that the cases in the main do recognise that those two aspects of certiorari and certainly the judgment of His Honour Justice Olsson therefore deals with both and it is simply because of that combination of factors that I have adopted the same approach but, in fact, Your Honour, as you can see from the outline, that really brings me up to that point where I was about to go to that second aspect of error on the face of the record at page 3 of my outline, as, indeed, was His Honour Justice Olsson at the bottom of page 77 of the appeal book.

Perhaps I can continue on then on to that aspect and indeed following through His Honour Justice Olsson’s approach to that.  At the bottom of page 77, His Honour referred to the second limb relied on and that it was said that that was an error because the judge:

is said to have proceeded to the conclusions to which he came on an insufficient basis of evidence.

He -

that is to say, my learned friend -

also of course contended that error on the face of the record had also been demonstrated by virtue of the fact that it was said that Russell DCJ had applied the wrong test in relation to the concept of fault.  However, my reasoning already developed above constitutes the necessary answer to such a suggestion.

Namely, that there was no error of law.

Then, on the question of the evidence or weight of the evidence, His Honour goes to look at that.

BRENNAN J:   Mr Peek, your argument is not advanced by repetition of what His Honour has said and we have already read that.

MR PEEK:   I am sorry, Your Honour.  Yes, I take Your Honour’s point.  Suffice it to say that we, with respect, adopt what His Honour has said and perhaps that is sufficient for me to say.

On the submissions that we do make as shown on the outline on error of the face of the record then, at paragraph 11, the situation is that the original orders were not drawn up in a formal way and sealed.  That could have been done but it was not and indeed I must say would probably not usually be done.

So I do not know that that takes me the distance I want to go but I have alluded to the fact that the orders were contemporaneously recorded on the back of the information.

It is submitted, putting aside entirely the question for the moment of whether there was any error of law at all, these are the submissions: first that His Honour’s reasons which preceded the original orders are not part of the record.  That is the first submission.  The second, and additional or alternative submission, is that the evidence and exhibits are not part of the record.  The answer to both questions will not necessarily be the same.  We say, of course, that they are the same - namely that neither category (a) or (b) was part of the record.

As to (a), His Honour’s reasons, we make the submission that there is a line of decisions in this Court in which this matter has been alluded to, and I have set them out there, and I submit it is necessary, briefly, to go to those decisions to show what the present state of the law is.  In the Reg v The District Court; Ex Parte White (1966) 116 CLR, the matter was specifically left open - alluded to, but left open - by His Honour Chief Justice Barwick at pages 649 and 651, it not being necessary for the purposes of the decision to decide it and, similarly by His Honour Justice Windeyer at 658.  His Honour did say something about the matter, however, and perhaps I can take the Court to that passage at 658.  About five lines down His Honour said that:

I therefore make the assumption that I do as to the judge’s reasons being, in this case, matter of record.  But I do so without coming to a final conclusion as to what documents are properly described as examinable records when certiorari is sought.

And referring to Northumberland and Baldwin.  That case does not take us very far except to show that by 1966 the matter was very much an open one. 

In the next case of R v District Court of Northern District Ex parte Thompson, (1968) 118 CLR 488. Justices Menzies and McTiernan do appear to have decided that a transcript of reasons does not form part of the record. The reference is

TOOHEY J:   Could I just interrupt you a moment, Mr Peek?  Did the Full Court deal with, on the face of the record?

MR PEEK:   Certainly Justice Olsson did, but ‑ ‑ -

TOOHEY J:   I am speaking of the majority.

MR PEEK:   Yes.  It is difficult to be clear about that.  If Your Honour goes, perhaps, to the judgment of Your Honour Justice Prior, page 68 of the appeal book, I think the simple answer to your question is, no, His Honour Justice Prior did not address this matter of error on the face of the record, or indeed, jurisdictional error.

TOOHEY J:   Did Justice Matheson deal with error on the face of the record?

MR PEEK:   No.  His only reference, as far as I can see, was to jurisdictional error.

TOOHEY J:   That is what prompted the question.  So the answer appears to be that the majority did not deal with the question of error on the face of the record.

MR PEEK:   It would appear so.  In Thompson’s case in the judgment of Justice Menzies at page 501, His Honour was considering the question of the District Court of Queensland which was enacted as a court of record.  His Honour alluded to the fact that the reasons are not a judgment or order to be sealed by the registrar and His Honour came to the conclusion that the reasons given by the learned District Court judge in that case were not part of the record.  His Honour considered that to be supported by the decision of the House of Lords in Walsall’s case:

where the distinction is drawn between a “speaking order” containing, by way of recital, the grounds of the decision and an “unspeaking order” notwithstanding that the grounds of the decision may have been stated in reasons outside the order.

We would submit that the mere fact that you later have a transcription of His Honour’s reasons and His Honour’s orders, and that they occur on the same piece of paper, is by no means determinative of the issue.  Justice McTiernan, in the same case at pages 495 to 496, particularly at 496, also comes to that view.  That first new paragraph:

The court of review in the present instance is the District Court of Queensland and there does not appear to be any provision requiring a judge of that Court to put his reasons for judgment in writing or which makes reasons put into writing part of the court record.  The function of this Court upon proceedings for certiorari is one of supervision, not of review.  In exercising this function the Court is concerned to examine the record of the inferior tribunal both as to the area of jurisdiction and observance of the law.  In my judgment the record in the present case does not display either an excess of jurisdiction or an error of law ‑ ‑ ‑

GAUDRON J:   There is a very considerable degree of artificiality in taking that approach now that we have got modern transcription services and the like, is there not?

MR PEEK:   Your Honour, it is my submission that there is later authority, to which I will immediately come, which was decided in the error of those transcription services and in which the same view was taken.

GAUDRON J:   I can understand why historical considerations might have led to that result in any particular case, but it does seem a bit odd now when matters are transcribed and the transcript is available.

MR PEEK:   Can I make this submission, that perhaps it is not quite as stark as that because it really is to keep alive and to keep the boundaries up between supervision by way of judicial review on the one hand and appeal on the other.  In other words, once one is able to go through all of the reasons and all of the transcript and documents and so forth, you really are merging the two concepts together.

Now, that is not necessarily a good thing because one has to remember that the Parliament makes decisions as to the structure and hierarchy of courts and tribunals, and has decided not to give the prosecution an appeal against a decision by a trial judge in favour of an individual.  Now, that it should so decide is not particularly surprising.  That is certainly still the case in South Australia in relation to a verdict of not guilty for example, and it is so in probably most jurisdictions still, although not all.  But the fact that there should be a seeming inequality in that regard does not automatically point to the fact that one should broaden this area of review into what is tantamount to an appeal, because if you do that what is really to stop the Crown on any ruling that they do not like, for example on a voir dire, to say, “Stop, we want judicial review” and go through the whole of the evidence called on the voir dire, the transcript, and  His Honour’s reasons and, in effect, appeal it.

Now, if the Crown were able to do that they would be doing something that the accused would have no commensurate right to do, because if a preliminary ruling goes against the accused he cannot, as a matter of practical reality, take out a writ or appeal at that time because the trial will go on and his right is limited to an appeal at the end of the day and to establishing a positive miscarriage of justice.  The fact that the Crown have not got a commensurate right of appeal at the end of the day is a matter well recognised and adopted by the legislature.

What I am saying is that although I can understand what Your Honour puts to me in terms of changes in technology, it is my submission it does go deeper than that.  It goes to the actual concepts behind these types of review.  If one goes back before the Jervis Acts, to the situation where a conviction of a magistrate had to set out all of the evidence called so as to demonstrate each element of the offence and so as to negative every possible defence and set out what the magistrate said and did and so‑forth, that was done in a time pre-modern transcriptions.

So it is not the availability of the transcription service that says “yea” or “nay” to that, it is the set up of the law because, of course, the effect of the Jervis Acts was to say, “Look, there’s just too much review” and to cut down the situations in which, as a practical matter, you could succeed, but not to alter the character of the review.  Certiorari stayed, it simply could not be used as often and the judges’ proceedings became the inscrutable face of the sphinx, to use Lord Sumner’s words.  So I think that that is the best I can answer, Your Honour, that it is more than an artificiality, and that this has been continued to be applied in these later cases.

Just going through those then, the next one I have that I have put is Reg v Cook; Ex parte Twigg.  Once again there was an allusion to the difference of opinions on the point but Their Honours, once again, abstaining from deciding it, so I do not know that it is necessary to take the Court to that.  But in Hockey v Yelland, (1984) 157 CLR 124, it certainly appears that at least two of Their Honours presiding did decide the point. Can I perhaps go to Justice Wilson first, rather than Chief Justice Gibbs, and then come back to him directly. If I can go to page 142 of the judgment of Justice Wilson, the last paragraph on that page, His Honour said:

However, the exercise of that supervisory jurisdiction by way of a writ of certiorari to quash the decision of a tribunal because in the exercise of its jurisdiction it has made an error of law is strictly limited.  The appellant accepts that in order to succeed he must show that the error of law is apparent on the face of the record of the proceedings:  R v Nat Bell Liquors Ltd.  The next step is to determine what constitutes the record.  There is no fixed rule which requires the same answer to be given in every case.  It is for the court undertaking the review to determine what constitutes the record in the particular case but this is not in any way to countenance a roving commission through the materials in a case in an attempt to discover an error of law.  The procedure is not to be assimilated to a right of appeal for errors of law.  Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication.  It will not include the evidence or any reasons that may be given for the decision unless the determination itself incorporates them by reference.

His Honour then refers to certain matters being put by the appellant in that case.  One of the matters being put was that:

Counsel for the appellant submitted that the record should also include all the medical reports tendered by the claimant and the notes of his oral examination by the Board.  The basis of the submission was the Board’s use of the expression “the matters alleged” in its determination.  The use of that expression, so it is said, reflected an intention to incorporate all that material in the determination.  I am unable to construe the determination in that way.  The expression merely repeats ‑ ‑ ‑

BRENNAN J:   This deals now with the particular statute there under consideration.  It is not advancing the principle, is it?

MR PEEK:   Well, it is my submission that His Honour is putting forward a broad principle that you cannot have incorporation in the determination by mere nebulous phrases; that there has to be specific incorporation of a particular document.

BRENNAN J:   The basic proposition is that you look at the determination or the order or the record, call it what you will, in order to determine the manner in which the power has been exercised and the subject‑matter in respect of which it has been exercised.  If on the face of it you discover that there has been an excess of jurisdiction, certiorari well go.

MR PEEK:   Yes.

BRENNAN J:   That is as far as you need to take it, is it not?

MR PEEK:   If it please Your Honour.

Then, can I just read one more sentence from His Honour’s judgment and leave it at that.  It is on the same page, just a few lines further down:

No reasons for the determination were given and even if they were they would not form part of the record unless incorporated into the determination.

And then, Chief Justice Gibbs at page 131 of the same case.  His Honour there, on the first new paragraph of 131 said that:

Some aspects of the law as to what constitutes the record for this purpose remain open to debate, but in this case, I have no doubt that the determination, the reference and the documents attached to the reference (the medical certificates and the application) constitute the record.  A reference initiates, and is necessarily the basis of, a determination under s. 14c, and the coincidence of the numbers on the two documents identifies -

the one with the other.

TOOHEY J:   That does not advance the matter one way or another, does it, so far as reasons are concerned?

MR PEEK:   No.  It is my submission that His Honour is in fact saying that in terms of reasons as distinct from the “determination” that is a different kettle of fish and you have to have incorporation and, indeed, you have to have incorporation if you want to refer to some other document which was in fact before the primary judge but is not specifically alluded to by him.  And that appears further down that same page in the judgment of Chief Justice Gibbs.

BRENNAN J:   Mr Peek, you were taking us through no doubt helpful authorities dealing with the extent to which supervisory jurisdiction will be exercised.  But does it not come down fundamentally, on your argument, to this, either that the district court judge had jurisdiction to make an error of law in the course of making an order for stay or alternatively, there was no error of law?

MR PEEK:   Yes.  I mean, certainly those are the propositions I am seeking to advance and to justify.

BRENNAN J:   If there was an error of law, the only way in which you could resist the granting of some form of prerogative relief would be to say that he had jurisdiction to go wrong.

MR PEEK:   Yes, but can I just add to that that we resist an attempted demonstration by the Crown of an error of law by reference to materials which we say should not have been legitimately referred to.  In other words, we submit that in their attempt to demonstrate an error of law, the Crown have impermissibly been allowed to conduct what is referred to as the roving commission, to refer to material which is not part of the record.

BRENNAN J:   But that is the flip side of the substantive rule, is it not?  I mean, they have simply got jurisdiction.  They may certainly refer to that if one looks at it from the point of view of jurisdictional error.

MR PEEK:   Right.

BRENNAN J:   If one is not looking at it from the point of view of jurisdictional error, the way one says it is, “It’s not on the face of the record”.  What that means is that the order that was made and the subject‑matter with which they were dealing was within jurisdiction and anything that they did in the course of getting to that is outside review; ergo, there was jurisdiction to go wrong.

MR PEEK:   I had not thought of it in quite that way, but I see what Your Honour is putting to me.  It has taken me a while but I understand that. 

BRENNAN J:   Does it not come down then to this:  did he have jurisdiction to make an order for a stay under Dietrich which, if made, absolved him from the duty of exercising his jurisdiction to conduct a trial?  Was it therefore the exercise of that jurisdiction which was open to review on certiorari and, if need be, on mandamus or prohibition?

MR PEEK:   And on that approach to the matter it may well not be necessary to consider, let alone decide, this question of precisely what does constitute the record.

BRENNAN J:   It depends on the approach one makes to it.

MR PEEK:   Can I just put this, that what we are saying is that, putting aside jurisdictional error, what the Crown may contend here is that they were entitled to establish error on the face of the record and that in order to do so they want a certain amount of material, indeed, as much material as possible, brought into the arena to attempt to establish that.  We, of course, want as little material brought into the arena so that it is commensurately harder to establish that.

TOOHEY J:   Could I just ask you to identify what the material is.  There were reasons given for the order made on 23 July vacating the trial, and then there is the transcript of the hearing on 28 July which resulted in the order staying the proceedings until further order.  What material do you say was available to the Full Court and what material was not available to the Full Court?

MR PEEK:   Our first submission is that His Honour’s reasons were not available.

TOOHEY J:   Do you mean the reasons of 23 July?

MR PEEK:   And, indeed, the other set of reasons.  We say that all that was available was the orders.

TOOHEY J:   The only way you can find the order ‑ no, what I was about to say is not correct.  You can find the order of 28 July on the indictment sheet, can you not?

MR PEEK:   Indeed, Your Honour.

TOOHEY J:   So you would exclude the transcript of 28 July as well as the reasons of 23 July?

MR PEEK:   We would exclude the transcript of what passed between His Honour and Ms Vanstone and restrict it to the order pronounced, yes.

TOOHEY J:   That is just for clarification.

MR PEEK:   The next category of material that we say should not have been before the Full Court was the evidence led in front of His Honour and the documents that were tendered.  We say that for the reasons already put, namely that you can only get a document in the judicial review if there is specific incorporation of the particular document.  A mere allusion to having read all of the documents or having read the evidence will not do because, of course, to keep the boundaries up between judicial review and certiorari.

BRENNAN J:   That again depends on the way in which one looks at it, does it not?  If the true nature of the decision in Dietrich is that there is a duty upon judges of courts vested with criminal jurisdiction to exercise that jurisdiction, unless the factual circumstances outlined in the majority Dietrich judgments exist, then it is open to a supervising court to make an order irrespective of any view that has been formed by the judge of the trial court.  In other words, the trial judge’s order of stay is, if one likes, a nullity.

MR PEEK:   Yes.  If the court is prepared to go that far and characterise it really as jurisdictional error in that regard, then that is so.  But we say that that cannot be done and that therefore we have to address, as it were, the second string, to my learned friend’s bow; that is to say, error on the face of the record.  In order to address that particular aspect, one needs to ask the question:  what is the record?

TOOHEY J:   Just at a quick glance of the respondent’s submissions ‑ and part of the difficulty here is you are meeting an argument which has not been advanced yet ‑ there does not appear to be anything in those submissions that goes beyond the reference to the reasons.  The Solicitor may demonstrate otherwise, but it seems to me, just looking at the submissions, that the argument will be that the Full Court was entitled to look at the judge’s reasons.

MR DOYLE:   If it helps, Your Honours, we are going to confine it to the reasons.

TOOHEY J:   So you need not be concerned with the evidence.

MR PEEK:   My submission is a very, very simple one in regard to that, because I was not aware that that was going to be the stance taken, and it is this, that the judgments in the Full Court show that they had regard to matters way beyond the reasons.  Indeed, His Honour Justice Matheson was saying, “Look, here’s another document that I’ve found which was attached to the affidavit which was tendered over the objection for the appellant.  It’s not referred to by His Honour and it should have been and I’m going to”.  That is the paradigmatic example, if I can say so with respect, of just what you cannot do, because there is absolutely no incorporation of such material by the learned primary judge.

TOOHEY J:   That takes you back in the end to that passage at the foot of page 66, “if all the facts have been properly investigated”.

MR PEEK:   Exactly.  So it must - - -

TOOHEY J:   That is taking us back to where we were some time ago.

MR PEEK:   Yes, except that I can be much briefer now, in view of what my learned friend has said, and it is simply impermissible to do it, that it constituted what was referred to as a “roving commission” into the facts in the law, and that is my submission.

Now, in the light of that, can I simply allude to these other cases without dwelling on them perhaps.  Public Service Board v Osmond certainly appears to contain a clear statement by His Honour Chief Justice Gibbs:

that reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them.

Then if I can go immediately to the case of Reg v Wright and Pope, (1980) VR 41. Can I just refer to this case because, unlike many of the other cases, it is dealing with a position of an accused person in relation to an indictable offence and therefore is rather unique in relation to the other cases that have been referred to.

The case really largely consists of the adoption by the Victorian Full Court of an earlier unreported decision of that court, which is extensively reproduced and was in fact the case of Reg v Judge McNab of 17 August 1977.  The passage that I would like to go to occurs in that earlier decision and is adopted in the later decision, at the bottom of page 46 of the report.  That last paragraph or so:

“No formal record of the County Court has evidently been drawn up....”
...
“Mr Mullaly, who appeared for the Acting Attorney‑General, submitted that the record of the proceeding in which the order quashing the presentment was made included the transcript as well as the presentment itself and the endorsement by the Associate on the back of the presentment.  We are however unable to accept that submission.  It is not necessary in these proceedings to reach a conclusion on the question whether a written record of the words spoken as reasons for decision by the presiding, or another, member of a court or tribunal may in some circumstances be treated, without the agreement of the parties and without statutory authority, as part of the ‘record’ of the proceeding in which the decision is given, and so examinable to show error of law justifying an order of certiorari -

a reference to a number of cases, and then the important passage:

But we are disposed to think that when certiorari is sought to bring up and quash for error on the fact of the record an order of the County Court made in exercise of the jurisdiction it has by virtue of s.36A of the County Court Act 1958, nothing but that which at common law constitutes the record of proceedings on indictment or presentment according to the course of the common law can be regarded as the record which it is the function of the writ of certiorari to have brought into this Court -

and we submit that that is the position.

Paragraph 14 is perhaps not necessary to be developed in view of the concession made by my learned friend and so I simply pass over that and of course paragraph 15 perhaps deals with much that has already been put; that we submit that no error is demonstrated however one looks at it, namely, that if you accept the submission that the record does not include the reasons, the oral evidence and the written evidence.  Alternatively if you are permitted to look at his reasons alone or even if you are allowed to look at all of the material, no error of law is established.

If it pleases the Court, those are my submissions.

BRENNAN J:   Thank you, Mr Peek.  Mr Solicitor?

MR DOYLE:   I think Your Honours have our outline of submissions which is a rather long one but this is one of those cases on which once one started pursuing the points, further points arose and I thought it might be helpful to the Court to put in a longer submission than usual in the hope that in the course of these submissions, some points I will be able to pass over fairly briefly.

Could I also say at the outset, just so it is clear, what our contention is. We contend, first of all, that there was an error of law on the face of the record and in support of that our contention will be that in relation to a court, that the reasons should now be treated as part of the record and we would argue the relevant error was in the reasons.  And we would urge that the former distinctions related to scope of the record should be abandoned.  And then as a fallback under error of law on the face of the record, we argue that in this particular case, there was very clear incorporation in any event or, alternatively, it was a speaking order as they are called, and therefore, even if that general submission is rejected, that in this particular case, we can go to the reasons.

BRENNAN J:   Do you suggest that should be abandoned in the case of all tribunals or only in respect of courts?

MR DOYLE:   Courts, Your Honour.  It is confined to courts.

BRENNAN J:   So that other tribunals would still have a jurisdiction to make an error of law within jurisdiction, courts would not?

MR DOYLE:   Yes, Your Honour.  Deliberately we have confined - - -

BRENNAN J:   I understand that.  I just wanted to understand that - - -

MR DOYLE:   I know that in some situations it could be said well, it is all very well to say you are confining it, but what are the implications.  Our submission is that it is a logical distinction to draw, courts and other bodies, and for today’s purposes we confine it strictly to courts.

McHUGH J:   But logic or not, it turns the whole history of the procedure of certiorari on its head, does it not, particularly in dealing with criminal courts, because you could get certiorari in the criminal courts only on very limited grounds and what was really strictly the record, the indictment or something to do with the indictment, once you got into a judgment or reasoning process, writ of error was the remedy, not certiorari.

MR DOYLE:   For proceedings on information, of course, not for summary proceedings.  So first of all, what Your Honour says is, with respect, true only as to proceedings on information.  Secondly, our submission is that bearing in mind these days the fairly extensive rights of appeal and the clear ability of a court to decline to entertain prerogative relief when appeal is available, that that discretion can cope with what I accept is in a sense a turning on the head, and that on the other hand, in our respectful submission, it is ridiculous in this day and age for us to be debating what is the record, something with which modern courts are unfamiliar; with which modern practitioners are unfamiliar.

McHUGH J:   It depends whether you came to the New South Wales bar before 1970.

MR DOYLE:   I did not, Your Honour.  So our submission is that when you really look at it in a matter‑of‑fact sort of way, the notion of hingeing everything on what is the record should be abandoned and we confine it to courts.

TOOHEY J:   Could I just ask you in that regard, Mr Solicitor, to identify the reasons that you say the Court is entitled to look at.  Are you speaking of the transcript of 28 July and the reasons of 23 July?

MR DOYLE:   In this particular case, Your Honour, I would argue that what our submission would enable the Court to look at is the reasons given on 22 June which are at pages 1 to 6 ‑ ‑ ‑

TOOHEY J:   I am sorry, did I say July?

MR DOYLE:   - - - and then the reasons given on 28 July, and if Your Honour really wants to pin me down, I suppose I would say the material on page 8.

TOOHEY J:   It would be difficult to isolate one from the other because on page 8 His Honour is referring to the reasons that he has already published.

MR DOYLE:   Of course, Your Honour, and on our fall‑back argument, we would submit as to line 15, there is the clearest example you could get of incorporation, but on our main argument we would submit that even if he did not say, “for the reasons I have already published and given” ‑ if he just said, “There will be an order staying the proceedings” we could still point to the same two pieces of transcript, the reasons of 22 June and the reasons of 28 July.

TOOHEY J:   Thank you.

MR DOYLE:   Our second argument is that there was a jurisdictional error in the sense that the court addressed the wrong issue, and our respectful submission is that at least in relation to courts which are not superior courts, it is a jurisdictional error for the court to address the wrong issue or to misconceive its task.  I do not suggest that that is a good or clear line.  It is a line that is there in the cases, will be our submission, and we submit that we can call that in aid; and our second submission is that there was jurisdictional error in that sense.  We certainly do not advance what is sometimes called ”the wide Anisminic notion” that any error of law is jurisdictional.

What we submit has been reflected in judgments in this Court, query decisions, is the narrower Anisminic notion, namely, to misconceive your task to address the wrong question can be jurisdictional error, and I acknowledge right at the outset that sometimes the difference between mere error and asking the wrong question is very difficult to draw and, of course, as we see in the cases this Court has sometimes struggled with the distinction.

MR DOYLE:   In our third submission, which, in a sense is not separate but is important enough to deal with separately, is that judicial review does lie to the District Court or, conversely, it is not a court beyond the reach of orders under Order 98 of the Supreme Court Rules.  We would so argue, possibly because it is a court of limited jurisdiction, although we do not put much reliance on that - that seems an unsatisfactory criterion; secondly, and a bit more emphatically, because it is not a superior court; thirdly, and principally, because the previous local court, clearly was a court to which certiorari lay.  The Act made that explicit. 

The removal of the sections controlling how you got certiorari, in our submission, cannot be read as, by implication, removing the court from the supervision in that fashion.  In other words, our submission is, prima facie, it is subject to judicial review.  The previous Act merely controlled how you do it.  The provisions as to how you do it are gone and one, in our submission, would think because these days they were thought to be sufficiently located in Order 98, and so it is simply a court to which judicial review does lie.  So, they are our submissions if the Court pleases.

There is a separate written submission which we filed, dealing with a point buried at the back of this, and we put it in writing because we do not seek to develop it today, and that is that there are remarks one finds in cases that you look at in this area referring to writ of error, and the affect of them is that if writ of error lay then certiorari did not.  The tenor of our written submission is this:  first of all, writ of error lay in relation to convictions.  Here we are not dealing with a conviction and the old law does seem to indicate that as to matters prior the trial, at least, or certainly prior conviction, you could have certiorari, and so you were not stopped by the fact that writ of error was the right procedure. 

Secondly, in our respectful submission, it would be highly artificial to say that writ of error, which is obsolete today and, as the written submission argues, probably never was available in South Australia, that that is a reason for refusing certiorari.  That would be to mount, as it were, fiction upon fiction and, so, in that written submission, we deal with the ‑ ‑ ‑

McHUGH J:   Why do you say the writ of error was never available in South Australia?

MR DOYLE:   Because it appears to be traceable back to a statute of one of the Henrys, and when you look at the terms of it, referring to our subjects being vexed by petitions to Parliament after judgment, and so forth, we submit that looking at the history of our State, and probably most Australian States, that that just was not a problem that could arise, that the common law had moved beyond a stage where subjects could petition Parliament as a means of interfering with regularly obtained judicial verdicts.  So, it was obsolete by the time South Australia was established in 1836, but if Your Honours want to avoid that broader question, we would submit the narrow one is writ of error was not, in any event, the means of dealing with a problem, if I can loosely call it that, at this stage of proceedings, that is, before the jury had embarked on the trial and returned a verdict.

TOOHEY J:   Another reason for avoiding it is that it has not been raised against you.

MR DOYLE:   No, although we are, in a sense, making the running on some of these issues and so we thought we cannot really bypass it, one of Your Honours may come across the point later and wonder how did they get around that?

McHUGH J:   At the top of page 8 of that addendum to your submission you say:

the reference to attaint -

that is in that statute of Henry IV -

is a reference to an outmoded procedure which cannot be invoked -

now you give what is, in effect, two English references but, my understanding is that “attaint” was part of the law of this country, and it was so held by this Court in Dugan v Mirror Newspapers.  Is there any basis in South Australian law for saying that?

MR DOYLE:   No, Your Honour.  I think we had better look at Dugan.  It may simply be that we overlooked that, and I am certainly not suggesting there that we considered it on a concealed basis passed by Dugan.

McHUGH J:   Yes.

MR DOYLE:   There are certainly, in this case, things we have possibly overlooked.  Your Honours, the second preliminary point:  as to the reasons of the Full Court our submission is this, that Justice Matheson seems to have decided in our favour on the basis of jurisdictional error and to have had regard to any material which was relevant.  We do confine ourselves to the reasons here.  We submit that addressing the wrong question appears from the reasons and to confine this case within some limits and to avoid raising further problems of how far you can go beyond reasons, we are confining ourselves to reasons.  So, to that extent we are departing from the reasoning in His Honour’s judgment. 

BRENNAN J:   Do I understand you to say that from the reasons you will derive a proposition that there has been a failure to address the right question in the jurisdictional sense?

MR DOYLE:   Yes, Your Honour.

BRENNAN J:   Are you going further on the reasons then, and saying, “Well, even if it doesn’t amount to such a jurisdictional error, that none the less it is an error which leads to certiorari”?

MR DOYLE:   Yes, because we submit that in any event there is just simply error of law on the face of the record, yes.

BRENNAN J:   Yes, and do you find some difference between the two?

MR DOYLE:   Well, error of law on the face of the record, as we understand the authorities, is simply an error.  For jurisdictional error, we will have to satisfy Your Honours that he really did address the wrong question, that he - putting it again colloquially - wholly misconceived the issue.  Not that we disagree with the outcome.

BRENNAN J:   In the modern day, is error on the face of the record anything other than an error which demonstrates that the repository of the power has gone beyond that which was reposed?

MR DOYLE:   Yes, Your Honour, because in the way Your Honour formulates it is a hint, in my submission, of jurisdiction error ‑ ‑ ‑

BRENNAN J:   Yes.

MR DOYLE:   Going beyond, and our submission is clearly error of law on the face of the record will embrace simply getting it wrong as a matter of law, even though one would not say the relevant person has gone beyond power or beyond authority.

McHUGH J:   That was certainly the case at common law.

MR DOYLE:   Yes, certainly, at common law.  At common law, certiorari was a procedure whereby one reviewed, fairly generally, the process of the court below to see if any error had occurred.

BRENNAN J:   No, not whether any had occurred, but whether any occurred that made its way into the record ‑ ‑ ‑

MR DOYLE:   Of course, Your Honour, yes.

BRENNAN J:   - - - which was, of course, the evidence of the exercise of the power and so, if there was error on the face of the record, there was error which infected the exercise of a power and it was, in that sense, a jurisdictional error.

MR DOYLE:   True, Your Honour, but in our respectful submission, looking at it in today’s terminology, there is a distinction between mere error and jurisdictional error, at least drawn today, and our respectful submission is that error of law on the face of the record is not confined to what we today would call jurisdictional error.  It is simple error as a matter of law which one can say affected the outcome of the exercise of the power.

BRENNAN J:   Well then, it is of critical importance to determine the face of the record in order to confine supervisory jurisdiction to those matters which are not simply errors within jurisdiction.

MR DOYLE:   Not in our respectful submission.  The reasons may disclose error within jurisdiction but, if the reasons may be referred to, then, in our submission, certiorari is available.  In our respectful submission, Your Honour is nevertheless right in the sense that the scope of the record is critically important to how far one may roam looking for the relevant error.  And for today’s purposes, we confine ourselves to reasons and further on the basis that that is a relevant distinction to draw in terms of today’s practices, that reasons are almost invariably given and it is an intelligible line for the courts to take.

BRENNAN J:   It is intelligible but it really opens out supervisory exercise of jurisdiction.  So that any error which appears in the course of the reasoning process and the repository of the power leads to the power being nullified or being set aside.

MR DOYLE:   Yes it may, Your Honour, but could I stress again that we are confining this to courts and the wide availability of appeals and the fact that the court can and routinely does decline prerogative relief when appeal is available.

TOOHEY J:   What you are doing, I think ‑ and I am not suggesting that you are wrong in doing so ‑ but you are really equating the supervisory jurisdiction with those statutes which allow an appeal on a question of law.

MR DOYLE:   True, Your Honour, yes.  And we do not resile from that for one moment.  We submit that we have got ourselves into such unsatisfactory complexities with the notion of the record that we are confronted with a choice.  Either we are going to stick with that problem and continue to talk about something which no modern lawyer really understands and which courts to which these order go understand.  And so we are going to have an argument about something that is not even before the court. 

In 90 per cent of these cases there is no record there.  There are affidavits filed by the parties exhibiting material and, in our respectful submission, the time has gone in which the court should say that the critical issue now is the scope of what used to be the record; the court should simply say as a development of the common law, “When judicial review is available we will have regard to the reasons for the order or decision under review”.

BRENNAN J:   That is an interesting thought that those on the executive branch of government might support such a submission.

MR DOYLE:   Your Honour, I am confining it to courts, and there would be sound reasons, in our respectful submission, without attempting to predict the outcome, why the same approach should not be taken in the area of what we might call “general administrative law”.  But reasons are such a central part of the judicial process and, as this case demonstrates, still today there are odd situations in which there is no right of appeal available and a quite important issue is able to be determined in an unreviewable fashion.

BRENNAN J:   So that we forget about records of the court, but we do not forget about records in the case of the administration?

MR DOYLE:   What should be done in the area of administrative law is another matter, Your Honours, but I suppose one could say that consistent with our submission the court should again address the question of what it should be willing to have regard to in the area of administrative law and, again, decide it in the light of what I will loosely call “contemporary considerations” rather than harking back to what, without wanting to labour it unduly, is a fictional thing that courts do not understand any more.

Could I just add this, that presumably before Lord Jarvis’ Act if a judge or magistrate got an order of certiorari he knew what to draw up approximately in response to it.  He had to produce the information or initiating process, he had to set out the evidence - one assumes that would mean from his own notebook he would record such evidence as had seemed to him relevant - he had to set out his adjudication, which was clearly much more than, “I convicted the accused of the following offence.”

Today in truth, in our submission, bodies receiving the order of certiorari would not know what to draw up.  It is not done any more, and the practice is simply - it is not only, in our respectful submission, archaic, it is in effect obsolete.  So we talk about something that the recipient bodies do not draw up any longer.  The courts which send the order of certiorari to them do not fully understand themselves, and the practitioners before those courts do not really know what is the record.  So we decide cases on the basis of what would have been done after Lord Jarvis’ Act and, in our respectful submission, that argues strongly for reconsideration of that position.

McHUGH J:   But the whole purpose of Sir John Jervis’ Act was to make it difficult to detect error.  The “record no longer spoke”, so to speak, and it was Lord Sumner’s phrase that it was like the sphinx.  But you want to reverse the rationale of Jervis’ Act?

MR DOYLE:   Yes.  Your Honour, Lord Jervis’ Act was passed because, as best one can apprehend, the lawyers had overdone it.  They were picking through the record for stupid errors.  Now, appeals are freely available and if there is an appealable error, it can be dealt with on appeal and that is a reason for declining to exercise this jurisdiction.  So, in a sense, I am urging the Court to do something which will relatively rarely matter, that is, in the area where appeal is not available.  The second point is ‑ ‑ ‑

McHUGH J:   I am not sure about that.  Some of the decisions in New South Wales went very far, I thought, when I was on the Court of Appeal.  There were two or three of them that seem to go very far in determining what constituted a record.

MR DOYLE:   They do, Your Honour, and we do not seek to go so far.  We stop at the reasons.  The other point we would make is, if you think about the historical situation, if certiorari lay, a full record had to be compiled.  Lord Jervis’ Act restricted the record that was required from Justices of the Peace.  If one looks at our District Court Act, where is a section restricting the return required?  It is just not there.  So if certiorari does lie, it could be said that all of the old law has been let back in and it is not too fanciful to suggest that modern parliamentary counsel have perhaps forgotten that the reason for what looked like old-fashioned sections about form of convictions all goes back to Lord Jervis’ Act and those sections, at least in South Australia, seem to have disappeared now.  They were never in our District Court Act.  There are some hints of them in our Magistrates Court Act, but only hints of them.  So one could say, although this is not our submission, that as long as certiorari lies, what is there in the statute that permits us requiring what I will call a pre‑Lord Jervis Act return, because you had to point to a statutory restriction on the scope of the return and they seem to be disappearing in some places.  So in truth, in one sense, we might be back to the old law ‑ unwittingly, but we might be back there.

So, Your Honours, Justice Matheson decided on the basis of jurisdictional error, in our respectful submission, in what I have called the narrower Anisminic sense, addressed the wrong question and as to that, I simply rely on the passage from Anisminic that he referred to but he did refer to materials that we are not going to urge at this stage are part for of the record.

Justice Prior did not make it clear what was the basis of his decision but in that short judgment it rather reads as if he is referring to error of law on the face of the record.  All he talks of is error of law and, in our submission, that is probably the basis of his decision.  Justice Olsson rejected our submission on all fronts but it is clear from his argument, although odd that I have to resort to the dissenting judgment, that we did argue separately jurisdiction and error of law on the face of the record.

Now the other preliminary point I should deal with, Your Honours, is the basis upon which the appeal is to proceed and that is dealt with at the very outset of our outline of submissions.

The confining of the grant of leave, in our submission, seems to mean that the correctness of the judge’s decision in relation to Dietrich is not before this Court because leave was confined to the issue of jurisdiction and error of law on the face of the record and that only seems to make sense in the context of this case if one reads it as meaning, what I loosely call the application of Dietrich to the facts is not an issue here.

GAUDRON J:   Is that not what you say is the error of law though?

MR DOYLE:  Well, it is, Your Honour, and I have to take considerable, “query”, all responsibility for this state of affairs because when I look back at the transcript of the special leave, I saw that I had argued that it was not a suitable case to consider Dietrich and the Chief Justice said, “Well, do you mean it should be restricted grant of leave?”, and perhaps unwisely, I said “Yes.”

So we have tried with some care to formulate the matter at the front of our outline and what we submit is, as to error of law on the face of the record, what it means is we should say, assuming there is an error in the judge’s reasons then can we look at the reasons to demonstrate error of law on the face of the record?  And that is in our respectful submission, a manageable way of approaching it.  So you assume there is an error there and the question is, can you look at the reasons?

DEANE J:   But can a confinement on the grant of leave affect you?

MR DOYLE:   Your Honour, I must admit I had not thought about whether I could work around that or not.

DEANE J:   All that is qualified is the grant of leave to appeal.

MR DOYLE:   Yes.

DEANE J:   It surely cannot qualify, indeed one would question whether the court could properly qualify the grounds on which you could resist the appeal.

MR DOYLE:   In a sense, Your Honour, I am perhaps using the limited grant in a defensive way, because what I am putting is that as to error of law on the face of the record we do not have to revisit the question of the rightness of what the judge did.  We simply asked the question, “Assuming he made an error, can we have regard to that error, bearing in mind it was in the reasons?”

At the second stage it gets a bit more difficult, because one really then has to say, “Well, bearing in mind that one and possibly two members of the court found jurisdictional error, does the sort of error they identified amount to jurisdictional error?” and it gets very difficult there to stay away from the correct application of Dietrich.  So I simply raise that point.

Could I then put a brief submission on that, because I dare say Your Honours will need to consider it.  Our respectful submission, without wanting to go back to Dietrich before the Court today, is that when the expression “without fault of his own” was used in relation to the grant of a stay it surely meant fault in the sense of choice.  In other words, as a number of Your Honours said in Dietrich, if the accused has the money and chooses not to spend it, well then he cannot complain if he has not got representation.

In this particular case the tenor of our argument was that this man had money at a time when he had been committed for trial and had been granted legal aid; he had $20,000.  He chose to - I should not say chose - he spent it paying off various creditors, and our submission was that the trial being so close at hand, and the prudence of putting aside a few thousand dollars for the trial was so obvious that one would say, “This man chose to take his chance about representation at trial.”  And that the judge’s error appears very clearly at page 5 of the appeal book.  At line 5 he refers to the submission by counsel.  It is interesting when you then look at what he says.  One, that is my one:

There was no evidence before me to suggest that the prisoner was at fault when his music shop business failed -

and then about three lines further down:

Nor was there evidence that he was responsible for the failure of his music teaching business -

further down:

or was there any evidence that the money he expended on legal costs incurred by him as a result of the proceedings in the family court arose as a result of his own fault -

presumably unduly prolonging the case.  And then fourth, as to the explanations about the balance of the money, they do not, “demonstrate any fault.”

Our submission was, and is, that, with respect, His Honour really did misconceive the issue.  He thought that what the court meant was, you looked at the things the money had gone on and, in a sense, you said, “Were they things he should not have spent money on, like wine, women and song?”.  In our respectful submission, that is not the issue, and His Honour really has missed the point here.  The real point is, having had some $20,000 in August 1992 - I think that is the right date - and being in the legal process at that time - and I think the record shows, having been already committed for trial - was it really through his own choice, in that sense, that he was without legal representation, and so, first of all, of course ‑ ‑ ‑

BRENNAN J:   Is there any question of preference, priority or advantage?

MR DOYLE:   It may have, Your Honour.  None of the creditors have petitioned for his bankruptcy but I am not going to suggest that unless you are facing bankruptcy, you cannot pay your creditors.  Our point is just that the judge missed the point.  He asked the wrong question and Your Honour Justice McHugh said to Mr Peek, “Well, mandamus would have been the right order”.  Maybe, but our contention was not that the application for a stay was doomed to fail, our contention simply was that the judge had got it completely wrong, and if Mr Craig wanted to make a fresh application, so be it.  That is why, at least, mandamus to proceed with the trial ‑ ‑ ‑

McHUGH J:   That is the problem I have with the whole procedure in this particular case.  Supposing, as a result of what the judge said on the first occasion, he had been granted legal aid.  Would what he said, and the orders he made on that occasion, be made without jurisdiction?  It does not seem to me that they would have been.  The real problem arises when Ms Vanstone came along and, in effect, invited him to stay the order because the Attorney‑General was not going to make any representation available.  Then the judge said he would make that order for the reasons that he had given earlier.  There was a refusal then to exercise his jurisdiction.  That seems to me to be the critical question of jurisdiction.

MR DOYLE:   In the exercise of a jurisdiction to grant a stay, he declined to exercise his jurisdiction to proceed with the trial.

McHUGH J:   She asked him to set the matter down for trial, I think, did she not?

MR DOYLE:   Yes, that was a way of bringing it to a head.

McHUGH J:   Yes.

MR DOYLE:   He had signalled his intentions clearly enough but, with respect, I am not sure why Your Honour says that is the real problem.  In our submission, it is just part of the story.

McHUGH J:   Except you concentrate on the reasons and what happened on the first occasion it seems to me, and maybe you get a different perspective if you look at what he did.  He made an order staying the trial.  Then you have to show that the reasons he gave on the earlier occasions were part of the record for that purpose.

MR DOYLE:   But in our submission, if one asked why did he stay the trial, he stayed the trial because he considered, applying Dietrich, that through no fault of his own the prisoner was without representation.  But for that conclusion he would not have stayed the trial.

TOOHEY J:   There is no argument about that really because he says “for the reasons that I have already published”.

MR DOYLE:   Of course, yes.  I may be missing the point, but ‑ ‑ ‑

McHUGH J:   The question is does the fact that he referred to that make that part of the record on that particular occasion?

MR DOYLE:   My first argument is that it does not matter what he says, that on judicial review the reasons can be considered and we should put aside the record.  Our fall‑back submission is that if that is rejected this was an explicit incorporation because he says in terms, “for the reasons I gave the other day”.  What could be clearer by way of incorporation?

McHUGH J:   I can understand why you are quite happy just to rely on the reasons because I think it is rather favourable to you.  When you look at the way the argument developed on the earlier occasion it does not seem to me, with respect, that the trial judge was making any serious mistake having regard to the way the case developed.

MR DOYLE:   But does Your Honour mean there the - - -

McHUGH J:   The evidence; the cross-examination by Miss Kelly and the submissions that she made and then the further evidence that the accused gave.  The reasons have got to be read in the context of what happened on that particular occasion.

MR DOYLE:   They do, Your Honour, but, in our submission, making all appropriate allowances, what could be further from the point of what Dietrich was all about than what is recorded at page 5?  In our submission, while it is conceivable that in some cases you might go back to the nature of the debt, the real issue is - - -

DEANE J:   I do not follow that, Mr Solicitor.  I mean, what if that paragraph of page 5 had been a catalogue of starving wife and children and money needed to feed them and pay for hospital expenses and so on.  Would you really say that if the question, “Well, he had had money” had been raised, that it was not right at the heart of - - -?

MR DOYLE:  No, Your Honour.  All we are submitting is those reasons are right off the point and clearly, if he said, “I had an inheritance from my aunt but my wife needed a shocking operation, my children were starving”, then, even on the correct approach, one may well still conclude that he gets a stay.  But the issue here was, really, was it reasonable to expect this man to put aside a few thousand dollars out of the 20,000 for legal expenses rather than to pay off these debts?  That was the issue and that is not what the judge posed.  In my respectful submission, making all allowances, one cannot really turn it round the correct way.

DEANE J:   Except what he is really saying is, was he at fault, relevantly, in having lost his money even though he has not got any now.

McHUGH J:   Effectively the judge was saying, “Well, he’s got nothing now, and he cannot afford representation now,” the question is how did he get this way?  It is through no fault of his own, his business failed and his money went on this, he had to pay electricity, telephone and rent.”

MR DOYLE:   But, Your Honour, that is why we do not argue that that application was doomed to fail, and that is why we did not seek an order that the trial proceed.  All we sought to argue before the Full Court was that the judge had missed the point, and that instead of saying, in effect, he really had no choice but to use the money the way he did, he went back to an issue of the circumstances in which the debts had been incurred, and asked the question, “Should he ever have incurred those antecedent debts?”  At the practical level, it is an important distinction, and we took the matter to the Full Court to try to - perhaps not very successfully as it transpired - get some clarity for trial judges at the district court level about the way they should approach this issue.

GAUDRON J:   But, your submission really comes down to the fact that he should not have paid the debts even though he owed them.

MR DOYLE:   Your Honour, my submission comes down to the point that if it goes back before the judge, and when all the facts are investigated the judge may say, “You’ll get a stay because the way those people were pressing you for money, it was reasonable to pay them.”

GAUDRON J:   Whether they were pressing him or not, you will have to say that there may be circumstances in which you can just ignore your legal obligations.

MR DOYLE:   But, Your Honour, with respect, Your Honour is taking up with me now how the matter should be dealt with, if reconsidered, the appropriate way.

McHUGH J:   No, I think Justice Gaudron is defending the judgment, is it not?

GAUDRON J:   Well, just say that it is a strange notion whether it is put now or is to be put at a later date that one can be absolved from the necessity of paying one’s debts, although immediately due, because one is facing a criminal charge.  It seems, with respect, to make nonsense of any notion of legal obligations.

MR DOYLE:   Your Honour, that, with respect, is not our argument.  We are submitting that the issue that had to be addressed was whether this man could reasonably expect to have put aside three or four, out of the twenty thousand, for his pending trial.

DEANE J:   But that is a step back.  The first question you come to through no fault of his own surely is:  Has he the money now to pay for representation?  The answer to that question was, “No, he doesn’t”.  Then, presumably, the next thing is that the Crown is saying, “Ah, but he had all this money; where has it gone?”, and the judge said, “Well, I’ll have a look at that.  Looking at it, and the way he dealt with it, I don’t think there was any fault on his part, and I’m not going to disqualify him.”  That is, I would have thought, a much more stringent test or approach than Dietrich.  On that approach you might say the person who goes out to Morphettville Racecourse is never going to be able to claim a fair trial because he has been fool enough to lose his money.

MR DOYLE:   Maybe, Your Honour.  In our respectful submission, the critical thing is the right approach, and all we can say is that had the judge considered it properly, he may have said, “On reflection, I can’t see this man would have had any difficulty holding $3,000 or $4,000”.  It was only a three to four day trial and the point is, it was not relevant -it was only peripherally relevant at best, to talk about the circumstances in which those obligations were incurred.  What was critical was, how is it that today he has no money.

DEANE J:   There is great force in that as a criticism of His Honour’s reasoning but would you have anything to say if His Honour had added a sentence, “And I really think he should have kept $4,000”, or, “Notwithstanding the foregoing I really think he should have kept $4,000 but that isn’t, in my view, sufficient to deprive him of his right to a fair trial”?

MR DOYLE:   All we could submit is that His Honour moved for a moment to what is the heart of the issue, “Did he really have the choice to have the money on hand?”, but then seems to have gone back to a wrong notion of fault, because the real issue is why has he not got the three to four thousand, or whatever it is, today needed for counsel?  In a sense we know it is because he paid those debts.  But the judge has not considered whether - I do not know if “reasonableness” is the right word, but whether one could reasonably say to this man, “Well, don’t complain to me.  You wouldn’t have had any problems keeping three or four thousand in the bank, would you?”  That was the real question.

McHUGH J:Yes, but that was why - I understand why you do not want to rely on the transcript, because Miss Kelly put it as the issue at page 47 as to whether he had satisfactorily accounted for the fact that he had the 20,000.  That was the factual issue.  Now, we are up here and we are dealing with a case at a totally different plane altogether, but down at the trial level, down in the engine room of the law, that was the way the case developed.  If he had not satisfactorily accounted for the way he had spent 20,000 it was his fault.  That was the way.  Now, we are in a different area.

MR DOYLE:   Yes, which is perhaps why the Chief Justice was inclined to limit the grant of leave, because it is not an ideal case to tease out all the implications of Dietrich, although I have got myself thoroughly bogged down on that very topic at the start of my argument.

BRENNAN J:   How much longer do you think it will take you to develop the rest of your Dietrich argument?

MR DOYLE:   I would be happy to move on from the Dietrich argument because, in my submission, it does not arise on error of law on the face of the record.

BRENNAN J:   How much longer will the remainder of your submission takae?

MR DOYLE:   The whole argument?  Your Honour, I would think an hour and a half to two hours.

BRENNAN J:   We will continue until 1 o’clock, Mr Doyle.

MR DOYLE:   Thank you, Your Honours.  I go to the first aspect of our submission, whether there was an error of law on the face of the record.  Now, in our respectful submission - I take it Your Honours have had an opportunity to look at the outline?

TOOHEY J:   Yes, we have.

MR DOYLE:   In our respectful submission, what emerges - and I refer without going to it now in particular is the useful note referred to in paragraph 3 by Mr Gordon on “Certiorari and Oral Speaking Records.”  There seems to be a long standing practice not to require production of the record at the order of the removal stage, that is, bringing the record up, if its absence was explained.  So, first of all, you could get an order bringing the record up without producing evidence or proof of the record.  You merely had to satisfactorily explain its absence.

Then it seems that the court shifted to a stage in which they would actually decide upon the validity of the order made, even though the order was not in fact before them, provided the court was satisfied that were it before them it would be quashable; in other words, it could be quashed when removed.  And then the practice seems to have moved, perhaps through changes in the rules and just different practices over time, to this becoming the norm.

So what we finished up with in the end was a process whereby rarely, if ever, was the record before the court and the courts moved from what one might call the slightly exceptional situation of saying, “We’ll deal with validity although it’s not before us, because we know, if drawn up and before us, it would be quashable” to, more or less, never having the record before them.  And so once that happened the stage was set, in our submission, for people to start to become quite uncertain about what was in the record.

And that is really the tenor of Mr Gordon’s note.  And referring to an English case he says, well they have really gone badly wrong and he belabours the courts for getting into this situation.  Some of it is reflected, Your Honours, in our Supreme Court Rule 98 which we provided to the Court and rule 98.11(2) seems to pick up the sort of English rules that Mr Gordon was talking about saying that, you are not to get an order to remove unless a copy of the order verified by an affidavit has been filed or the failure of the applicant is accounted for to the satisfaction of the court.

So that was, as it were, the first chink in the armour because the court started saying well, as long as you tell us it has not yet been drawn up below, well we will let you remove it.  Then when you look at subrule 3 it says:

Where an order in the nature of certiorari is made in any such case as is referred to in paragraph (2), the order shall, subject to paragraph (4), direct that the proceedings shall be quashed forthwith on their removal.

So that reflects a procedure under which although the order still is not here, the court will quash it.  But as I put a moment ago, because gradually the exception became the norm and the orders were never there, people started to lose track of what the record was.         And I have to confess when I look back at the order that was made in this particular case, and it perhaps just reflects the way practise has drifted, the order is at page 83.

Your Honours will see at page 83 about line 22 that it is not actually in terms of subrule 3 an order quashing forthwith on their removal, it just purports to quash.  And in my submission that reflects what contemporary lawyers think they are doing; that they are just quashing.  They do not realise in a sense that technically, still that order has to come up and then be quashed.  And so the order in this case reflects what is the modern practice.

That modern practice, Your Honours, is usefully discussed ‑ and I will not read from it in the case in paragraph 3 in our outline, Reg v Tillett, where Mr Justice Fox in a page or so conveniently summarises that development and refers to Mr Gordon’s note.

That has produced a situation in which first of all the record is rarely, if ever, before the court, and what the court has is material assembled by the parties, not material provided by the body below.  I am not suggesting that is invariable; I am submitting that is the usual thing. 

Secondly, the whole argument becomes notional because we start to talk about what would have been in the record if it were drawn up, and it becomes in that notional sense an argument about procedure, that because it is no longer used is no longer properly understood.  So it is a notional sort of thing, and it is something which modern lawyers do not fully understand.

DEANE J:   But you have to focus on the reasons, do you not?  I mean you, in effect, say you are being very mild in only saying reasons.

MR DOYLE:   Always moderate, Your Honour.

DEANE J:   Yes.   But the plain fact of it is as long as you do not have the reasons it does not matter what is before the Court because if it has all the evidence, all the pleadings and the order, and to the extent that the reasons are incorporated in the order as an order, it can see what the basis of the court’s jurisdiction was, and whether the order made was an exercise of that jurisdiction in the sense of within the outer limits of it.  Once you bring in the reasons and say, “We can look at those for any error at all of law in them”, you have completely changed the process and you have said, “This is an appeal as of law”.

MR DOYLE:   In our respectful submission, what we have done is we have gone back to the position before Lord Jervis’ Act.  That is how it used to be, in our respectful submission.  Before Lord Jervis’ Act, the courts did not look for what we would today call a jurisdictional error, doing something beyond your power, they would simply look to see, as a matter of law, had the body got to the right result, because you had to set out information, evidence, and the adjudication.  The adjudication would necessarily be a number of findings, and if you could show that those findings were wrong in law, good enough.

DEANE J:   But that is the point, is it not?  In other words, the question was:  was those findings, in the sense of the outcome, within the jurisdiction of the court on the material before it?  Once you put in the whole process of reasoning leading to those findings, the question is, even though on the material before it, as this Court has held, the findings and orders made were open to the court, they cannot stand because the reasons show that the process adopted to reach and make them was flawed by error of law.  I am not saying what you are putting is wrong.

MR DOYLE:   No, I understand.  My submission, in answer to that, is that Your Honour may well be right that our argument will open up some areas that were not previously available.  Secondly, under past practice it was certainly not just jurisdictional error.  So I am agreeing we may be going further than in the past, but because of our uncertainties now about, for instance, how much had to be in the adjudication before Lord Jervis’ Act, it is not easy to be sure just how wide‑ranging the review was.  One thing we do know is that apparently it had got to the stage that the courts were being bogged down in unmerciful technicalities, which suggests that in fact the old process was a pretty thorough‑going review.

And so we are really arguing that this is a case where what we are doing is not, as it were, going away from history; we are going actually back to how things used to be but we are justifying it by submitting that the present practice has become unreal and there are good contemporary reasons for at least going back to the past to the extent of looking at reasons, even though I acknowledge that to some extent we now may be giving an area for review that was not available even under the old practice.

BRENNAN J:   We will adjourn until 2.15 pm.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN J:   Yes, Mr Solicitor.

MR DOYLE:   Your Honour Justice McHugh referred to the top of page 8 of the written submission.  Your Honours, there we are dealing with “attaint” which is an old procedure for challenging the verdict of a jury.  Dugan’s case dealt with the doctrine of attainder.

McHUGH J:   Attainder, yes.

MR DOYLE:  Dr Manetta informed me on all of this and I cannot claim any particular knowledge.  Like Thomas, having put my fingers back into the wound, I now have renewed confidence in our submission which I lost momentarily when Your Honour asked that question.

Your Honours, I had dealt with, as it were, the submissions in relation to the fictitious or fictional nature of resort to the record, and so our submission is that the Court should, as it were, abandon notions of the record and proceed on a more principled basis, and then the question becomes:  how do we proceed from there?

GAUDRON J:   If one were going to abandon that, there is a lot to be said simply for adopting the universal test of jurisdictional error for all prerogative remedies.

MR DOYLE:   No, Your Honour, because we would want to include error that is not jurisdictional.

GAUDRON J:   I know you would, but if one is going to move away from tradition ‑ ‑ ‑

MR DOYLE:   You could move either way, yes.  Our respectful submission is to cover situations where there is no appeal, it is desirable ‑ and bearing in mind that the discretion is always there to hopefully prevent misuse of the larger jurisdiction ‑ but that it is preferable for the superior courts to retain that power to interfere for error of law and not to restrict it strictly to jurisdictional error, otherwise history suggests that what we will find is people struggling to turn errors into jurisdictional errors to create what everyone agrees is a needed remedy in some situations.

BRENNAN J:   It is not a very hard struggle.

MR DOYLE:   No, Your Honour.  Moving on, Your Honours, paragraph 4 of our submission I do not seek to develop but it is just the starting point, and it is that because it was the reviewing court which controlled in the end what was the record, it is open of course to the Supreme Court of South Australia and to this Court on appeal then to say what is in the record.  We simply rely on the cases in paragraph 4.

Paragraph 5, again I am not going to go to the cases, no doubt Your Honours will want to look at them in due course but, in our submission, they do make it clear that for judicial review purposes notations on the back of an information or indictment are not the record and it would be questionable whether they are even part of the record and in this area again, in my respectful submission, we have to keep steadily in mind the distinction between the court’s own records and what would be regarded as the record for the purposes of a return to certiorari.  The return to certiorari, under the old practice, would always be a new document created by the judge, and while he might refer to the records of the court, you would not regard the records of the court as the record for certiorari.

Likewise, in our submission, notations on the information or indictment are not to be regarded as the record or necessarily even part of it, and we are not confined to those notations.  If it was the record there would be problems, first of all, they are not made under the supervision of the judge;  and, secondly, how does the judge get the power to recall decisions if they are already on the record of the court in the form of a notation.

Your Honours, the next point we make, in paragraph 6, is a fairly obvious one, that the remarks in Reg v Northumberland as to what comprised the record were dealing with what was at least part of the record, and again, just in aid of our general approach, we make the submission that having regard to earlier practice it seems that what we are advocating is not a substantial change, and could I refer very briefly to the case in paragraph 6, Ex parte Lovell; re Buckley (1938) 38 SR(NSW) 154, which dealt with certiorari to a court of summary jurisdiction, and then in particular at pages 166 to 167, and at the top of 166 Sir Frederick Jordan is describing the former practice on certiorari, and as he says, the conviction would be:

quashed.....if it did not on its face contain all such material as was necessary to enable a superior Court to form a judgement as to whether the conviction was authorised by law.

And could I emphasise, first of all, “all such material as was necessary”; and then, secondly, “authorised by law.”

It was quashed also if the material so appearing showed that the conviction was not authorised.  it was essential -

et cetera:

title of magistrate;  the date and place of the alleged offence;  the information.....an accurate description of the -

I think it should be “offence”:

charged, not only stating every essential ingredient of the offence, but also giving particulars of the acts relied on as constituting the offence;  the evidence given on both sides.....the adjudication of conviction -

and, as he goes on to make clear on page 167, Lord Jervis’ Act cut down particularly what was required in relation to the adjudication and a much simplified form of result was permitted, and it seems, reading that passage as a whole, that the adjudication itself would contain a number of details. 

So, Your Honours, in our respectful submission, it is clear that the return used to be a very ample document and gave the supervising court ample scope to scrutinise, we would submit, merely for error of law and not merely for jurisdictional error.

BRENNAN J:   What is meant by authorised?

MR DOYLE:   In our submission, that does seem to mean authorised by law in the sense, is there disclosed an error of law affecting the outcome, not just was there power to embark upon the process and power to record the conviction.

BRENNAN J:   Well, was not the view held in earlier times that inferior tribunals such as magistrates did not have jurisdiction to make errors of law?

MR DOYLE:   Part of the difficulty, Your Honour, is some of the earlier case law does not use our modern terminology and as we understand, does not draw these distinctions.  All I can put is our submission which has an element of assertion that our understanding of the cases is that it was a process of inspecting for error of law and that merely because the error was in a sense within jurisdiction, that did not prevent certiorari for error of law on the face of the record.

I will not delay Your Honour with it but Lord Denning’s judgment in Reg v Northumberland is particularly helpful in that area and also Lord Goddard’s judgment at first instance in the Northumberland case and in our submission the tenor of both of those judgments is that the former practice was scrutiny for mere error of law.

BRENNAN J:   I will just delay you for one more moment, taking up the question that Justice Gaudron asked you.  If certiorari was being recast in the modern form, why would not the appropriate form be that the supervising court will have regard to all relevant material, without regard to record or otherwise, in order to determine whether the repository of the power had authority or jurisdiction, whichever term you care to use, to do what it did?

MR DOYLE:   Well, in our respectful submission, that is an acceptable recasting of it but to the extent that that by implication shuts out scrutiny for mere error of law, we would submit it is not acceptable and that the approach should be in relation to jurisdictional error, what Your Honour puts, all relevant material to determine whether it had authority to do what it purported to do but that secondly, the other aspect of the old procedure, namely scrutiny for error of law, should be preserved but there is obvious reason there to be rather more cautious.

BRENNAN J:   But if they had authority or jurisdiction to err in law, why should there be jurisdiction to grant the new certiorari to correct it?

MR DOYLE:   Your Honour, my submission would not contradict that, because one has to consider then the nature of the body.  Part of my submission is that when we look at the district court it is an inferior court as to which there is no presumption in favour of authority to make errors of law.  But that, if you are dealing with a body which either, having regard to the terms of the statute or having regard to its own nature, one says there is a presumption of jurisdiction to make errors of law, then of course that jurisdiction contracts.  So, my submission is the remedy is capable of going to mere error of law; the second stage of the inquiry is to say, “Well, now, what sort of body are you issuing it to?”, and as to the district court, we would argue a body as to which there is no presumption, that errors of law are within jurisdiction.  As to the Federal Court, some of Your Honours have said there is such a presumption and some of Your Honours may have said that there is not.  But there are the two issues - the scope of the remedy and then the approach one takes to the particular body to which it goes.  That latter approach may result in one saying that an aspect of the remedy is not relevant in a particular case.

At paragraph 7, we just make the point that there being, as we would argue, no binding precedent in point, it is for the Court now to decide what the scope of the record should be.  I use that term just for convenience, although we would argue that talk about the record should be abandoned.  In support of the relatively expansive approach, or expansive from one point of view, we make the point first of all in paragraph 8 that at least as a matter of history, analogy with the return which magistrates had to make supports a reasonably expansive approach.

Secondly, the point in paragraph 9 of our outline, that having regard to the currently accepted approach to the judicial function and the importance which is attached to the giving of reasons, in our respectful submission, again there is every reason, absent a conclusion based on the nature of the particular body, to include reasons as part of the material which a court can scrutinise.  We simply rely, without going to them on the cases, in that paragraph 9 of the outline.  Perhaps if I could indicate we would rely in particular on the paragraph referred to from Public Service Board (NSW) v Osmond.  Of course, we are not getting into the issue of whether it is an error not to give reasons, we merely rely upon the importance attached to the giving of reasons.

In paragraph 10 we make a submission that I just want to pause on for a few minutes, Your Honours, and that is that there is no binding High Court authority to the contrary, and so, for what it is worth, it is open to Your Honours.  Could I just make these few supplementary points?  In the first case, Reg v District Court, most members of the court said, in effect, “We don’t have to decide it and for the purposes of argument we will just assume that the reasons can be part of the record”.  In Reg v District Court of Northern District, two members of the Court, as we note there, did say that reasons were not part of the record but could Your Honours note the points we make.  First of all, perhaps of less significance, they were civil proceedings, but secondly, as appears from the two passages we refer to at the second dot point, Parliament there had prescribed a specific form of order in these cases.  In that statutory context, that would support the approach that you could not go to reasons.  I should make it clear that we accept throughout that when Parliament, in one way or another, indicates the form of return which would be made, or the form of record, that may again affect the scope of the writ.

MR DOYLE:   Thirdly, at the top of page 5, Osmond’s case, in our respectful submission, does not argue against this conclusion, and its references to Shaw’s case about reasons not being part of the record, in our submission, were directed to statutory tribunals, as in this context was Osmond generally.

Fourthly, we make the point that in Reg v Cook, Ex parte Twigg, Sir Harry Gibbs clearly treated the point as an open one, so it was not decided there.

Fifthly, Your Honour, at the very bottom of that page we refer in paragraph 12 to a case of Re Student Assistance Review Tribunal on page 5 of our outline.  I am not going to go to that case either, Your Honour, because none of these are where the matter concluded, but the reference is page 319G, column 2.  There interestingly in the light of some things said by these judges in other cases, both Sir Harry Gibbs, Justice Mason, Justice Murphy and Justice Wilson all treated reasons as part of the record, and all I can say is having read the case as a whole I cannot see anything in the judgment elsewhere which would explain why they have done that in terms of the particular statute.  So if anything, that is in favour of us, but I do not suggest that it concludes the issue.

My friend relied upon the judgments in Hockey v Yelland, and again I do not ask Your Honours to get it out, but could I give some page references:  Hockey v Yelland, (1984) 157 CLR 124. Our submission is that Sir Harry Gibbs at page 131 was really fairly neutral as to whether reasons were part of the record, and was merely saying that if you were relying on incorporation it had to be fairly clear.

At 139 Justice Mason agreed with Chief Justice Gibbs.  At 142 to 143, as my friend pointed out, Justice Wilson excluded reasons unless incorporated by reference, although contrastingly in that case of Emery we have him joining in a judgment which assumes they are part of the record.  At 147 Your Honour Justice Brennan agreed with Sir Harry Gibbs, and at 147 Justice Dawson agreed with Justices Gibbs and Wilson.

So we submit the point is open in this Court.  It is not a matter where one would be departing from established authority, and so it is open to this Court paying due attention to the dicta that I have identified to decide upon the appropriate course.

Your Honours, the English courts have now taken the full‑blooded approach of saying that reasons are part of the record, and once again I do not think it would help to read the passage to the Court, but we rely particularly on Reg v Knightsbridge Crown Court, and especially at pages 312F through to 316B.  What Your Honours will find there is the court saying, for the sort of pragmatic reasons which we have been advancing, that the time has come to abandon the former more restricted approach to what is the record, and to treat reasons routinely as part of it.

Then as we note in paragraph 12 of the outline, New South Wales case law does support a more flexible approach to the record, and generally is including at least reasons, and sometimes other material.  Again, I do not think it is helpful to read the passages to Your Honours, but in particular, I think the latest of the cases we have there is Kirkpatrick, (1988) 13 NSWLR 378B to C. I cannot remember which judge that was, but at 391 to 393 it is Mr Justice Priestley who actually takes a wide view and said it is reasons and other material. You only pick that up if you look back in his judgment to page 387G, because in the part we have referred to he is just saying, in effect, “I agree with the submissions made as to the width of the record”. When one looks back to 387G, one sees that that was reasons and other things.

McHUGH J:   I think either President Kirby or Mr Justice Hope in Coles had said much the same thing because they said “any documents”.  Rather than worry about the record you look at the documents.

MR DOYLE:   Yes.  We, as I have said, favour and would urge upon the Court abandoning the use of the term “the record” but we are content at this stage to limit ourselves to “reasons”. 

My learned friend relied upon Reg v Wright and Pope, which is at the top of page 6 of our outline.  Perhaps I should ask Your Honours to look at that.  That is, Reg v Wright and Pope, (1980) VR 41. The relevant part is a lengthy extract from an earlier unreported judgment in which, first of all, this Court, that is the Court in Wright and Pope, says on page 51 that, in effect, the parties may like to consider in the light of all this what they should do. So the court does not, itself, essay a view, and does not either endorse or reject what is in the lengthy extract. But back at page 47, about line 10 through to 15, they say that:

nothing but that which at common law constitutes the record of proceedings on indictment or presentment according to the course of the common law can be regarded as the record which it is the function of the writ of certiorari to have brought into this Court.  In R v Hodgkinson, this Court explained how such a record might be made up.

And to the extent that that might infer that a narrow approach is taken, in our respectful submission, there may be an error there because Hodgkinson, which I will not ask Your Honours to look at now, dealt with the question of whether after the jury had returned its verdict and the verdict had been accepted, the judge could discharge the jury because he was told then about a conversation between a juror and a witness.  It turned on a quite different issue.  It did not turn on what would be the record for the purposes of a return to certiorari, it turned on the question of whether, having regard to the Court’s internal records, it was now too late for the judge to retrace his steps and have the jury discharged in the light of the conversation between the juror and the witness. 

In our respectful submission, while I do not deny that perhaps Reg v Wright and Pope, or the passage cited there from the earlier case, tends towards a narrower view, in my respectful submission, it may well be that that passage itself was infected with confusion between what is the court’s own records and when a decision is beyond recall, and when a decision is certiorari.

So, Your Honours, for all those reasons we submit that, it being open to the Court to take a fresh approach to this matter, it should take the approach which we urge and should say routinely that in relation to certiorari directed to courts, that apart from such evidence as the court considers satisfactory as to the order or decision below, the Court will have regard to the reasons given by the court for that decision.

If that submission is rejected, Your Honours, then our fall‑back submission in brief is that in paragraphs 14 and 15, that it is a well-established exception that when there are words of incorporation in the order one may have regard to the things incorporated and, in our respectful submission, that passage which comes from page 8 line 15 of the appeal book is surely clear enough and precise enough to incorporate the reasons given on the earlier occasion, reasons which we have argued disclose an error of law and indeed a jurisdictional error.

We put this very much as a fall‑back position because, in our submission, it is inherently unsatisfactory that the court’s ability to look at reasons should turn upon what might be a mere accident; whether the judge says, “For these reasons” or whether, on this particular occasion, he had simply said, “Well, Ms Vanstone, I now make an order staying proceedings.”,   it is the merest formalism, but if we have to we resort to that, the doctrine of incorporation, and then the other fall‑back position is the one is paragraphs 16 and 17.

DEANE J:   Does not “incorporation”, in that context, mean that the orders as such incorporate either the reasons or part of the reasons?  For example, if they say, “We’ll make an order to that effect” or “We make an order in respect of the said premises.”, it does not mean saying, “For the reasons given on a previous occasion I now make these orders.”

MR DOYLE:   Your Honour, first of all as a matter of practice, that is how courts, below the level of this Court of course, have treated the notion of incorporation, and so that is the modern practice in its application in lower courts to treat it as meaning cross‑reference.  Secondly, Your Honour, I suppose the difficulty is that it again seems as a matter of history that where this whole idea came from was that, as Your Honour probably knows, to facilitate judicial review, as we would call it, lower courts and magistrates would frequently, at the request of parties, put into their return all sorts of material that they did not have to put there.

Probably this notion of incorporation grows from that; in other words, from something that the court chose to include.  It does seem that it would choose to include reasons, and again that is perhaps where the idea of reasons being incorporated by reference grew up.  I have to say, Your Honour, that our researches are not such that I could with any confidence answer Your Honour in terms of what historically the notion actually meant because it seems to have become so fuzzy with the passage of time that, at least in current times, it is treated as just meaning:  is there a cross‑reference?

Then the final position which is in a sense very close to incorporation is to regard it as a speaking order, and I am referring there to the practice I just touched on.  Of course, one had a speaking order when the body below chose to include additional material in its return.  What one could say here is, “Well, the body below has not chosen to make any formal return to the court, and therefore why shouldn’t the court itself treat it as a speaking order; that is, constructed by the reviewing court?”.  So they are our submissions as to error of law on the face of the record, and at the very outset I went to the passages of Judge Russell’s judgment which we argue demonstrate error of law.

Then our secondary submission that there was jurisdictional error here and, as I indicated, for reasons of convenience we do not seek to find the jurisdictional error in material beyond the reasons.  The submission we put here is this, Your Honours, that a statutory body or, as we focus on here, an inferior court can commit jurisdictional error by misconceiving its task or by addressing the wrong issue, that to show that, one is not confined to the record; one can resort to reasons.

In this particular case the problem is, assuming that first of all Judge Russell was exercising an available jurisdiction, that is to deal with an information filed in the court, and secondly that he was making an order which we acknowledge he had power to make a stay, when is it that one will say an error of law in the course of doing that is a jurisdictional error?  That, we submit, is the issue which presents itself.  Our answer to that is to submit that while the line is not easy to draw ‑ indeed is difficult ‑ and one needs to refer to decided cases to indicate the approach, what they do show is that what I will call as a shorthand expression the wrong question approach has been recognised in Australia, and that secondly, if the court is not a superior court, then there is no presumption, as it were, against applying that approach, that it is in relation to superior courts or statutory courts where the term of the statute tends to deny it that one cannot apply the wrong question approach.

And so we reason that as the approach has been recognised in Australia that this is not a superior court and is indeed an inferior court, then we would submit that it was open here to take the wrong question approach and that it was taken in fact by Judge Russell.  Again, I do not think I need to develop further why we argue that he took it because we simply say, as I put to Your Honours this morning, he made a fundamental error of approach; he asked the completely wrong question.

Could I then refer to the cases in paragraph 18 of our outline in relation to the approach which has been taken by this Court to develop the submission that, first of all, the Anisminic wrong question approach has been recognised; and then, secondly, that where it is excluded is in relation to superior courts, and courts where the relevant statute indicates clearly enough that there is jurisdiction regardless of whether the wrong approach taken or wrong question is asked.

I do not need to go to Anisminic again, Your Honours.  Could I go, firstly, to Reg v Dunphy; Ex parte Maynes, (1978) 139 CLR 482. Now, Your Honours, here we are dealing with the Industrial Court, so it is a court not a mere tribunal, if that is the appropriate word. The issue was that if the rules of the registered organisation were contrary to the Act, the court could so declare. However, there were provisions in the legislation to the effect that even if they were not in conformity with the Act, time was allowed to get them into conformity with the Act.

It seems that the Industrial Court made the relevant declaration even though the remedial time was available.  So, it is clear enough there was an error.  The question was, was there a jurisdictional error?  So, we are dealing with the court and the question is, was it a jurisdictional error.  Sir Anthony Mason dealt with that at 495, last paragraph, commencing on that page:

it does not follow that the prosecutors are entitled to relief by way of prohibition or certiorari, for the existence of error in the judgment or order of an inferior court or tribunal is not a sufficient title to relief.....However, in two respects at least the errors to which I have referred went to the jurisdiction of the Court to make the order which was in fact made.  First, the Court failed to satisfy itself that the alleged contraventions identified in pars (a) and (b) of the order subsisted at the date of the order and in this respect the Court misconstrued the provisions of s 140.....and therefore misconceived the jurisdiction which s 140 conferred upon it.  Secondly, the Court misconstrued s 140.....by giving it an application to rr 16(1) and (7) when those rules, though failing to conform to the requirements of the Act and the regulations, were permitted by the Act to remain in their existing form for a prescribed period of time.  It may be said that the Court through misconceiving the jurisdiction with which it was entrusted addressed itself to the wrong issue and therefore exceeded its jurisdiction -

Now, that judgment was agreed in by Justice Aitkin -  that appears at the bottom of 497 -  and, Sir Garfield Barwick, 485;  and, Justice Stephen, at 486.

So the first point, Your Honours, we see there a clear recognition of the addressing the wrong issue approach.  It is seen as jurisdictional error.  It is applied to a court.  So unless one were to say, “This is a principle which can only apply with a statute,” there is something there which, in our submission, must have a wider reach and it would be, we would argue, very odd if one said, “Well, this only applies to statutes because if a certain type of error can be jurisdictional, why should it matter whether one has misconstrued a statute or misunderstood a binding decision?  The nature of the error will be the same”, and indeed one could visualise the decision in Dietrich being expressed in statutory terms.  Surely the question of jurisdictional error would not depend upon whether that were done or not.  So that is our starting point, Your Honours.  There is recognition of the approach in a judgment of this Court and applied to another court.

The next case, Your Honours, is R v Gray: Ex parte Marsh, (1985) 157 CLR 351. Now, Your Honours, that concerns the Federal Court which, of course, was declared by statute to be a superior court. Secondly, the issue was an alleged irregularity in or in connection with an election for an office in an organisation. An application had been made for an inquiry and an attempt was made to stop the inquiry.

The Court divided 3:3, if Your Honours will look at the headNote on page 352.  But what I do want to submit to Your Honours is that the headnote is not accurate, and to explain why I put that submission I should just make these points.  What most members of the Court did was to distinguish, including Your Honour Justice Brennan in particular, between the jurisdiction to inquire and then the jurisdiction to avoid an election, having found an irregularity.  I will come to the judgments in a minute.

Sir Harry Gibbs seems to have found, as the headnote says, that the Court did not have power to determine conclusively the matter of irregularity in the sense that the decision to avoid an election could be challenged on the basis that there was not in fact an irregularity.

Your Honour Justice Brennan and Justice Wilson, in our submission, held that because the application to the Court did not allege an irregularity, the jurisdiction to inquire was not enlivened but both Your Honour Justice Brennan and Justice Wilson appear to have said that had an irregularity been alleged, the decision that there was in fact an irregularity and so to avoid the election would not be reviewable.  In other words, that there there was jurisdiction to go wrong, whereas what Your Honour Justice Brennan and Justice Wilson were saying was that however there is initially the question of jurisdiction to inquire and if the person does not even allege an irregularity, that jurisdiction is not enlivened.

And then, Justices Deane and Dawson, without referring so clearly to the jurisdiction to inquire said, “Well, the jurisdiction to actually avoid does not depend upon there actually being an irregularity.”.  So, in our submission, it was actually a decision 5:1 that the Federal Court does have power to determine whether there is an irregularity if one is talking about determine in the sense of going on to avoid, but a decision 3:3, the power to inquire was not enlivened.  The point of all this is that what those members of the Court stressed was that the jurisdiction to actually avoid an election was not reviewable because this was a superior court and in relation to such a court there was a presumption that the court had jurisdiction to go wrong.

I now want to go briefly to the judgments to make the point that what they establish is that if it is a superior court, there is a strong presumption against an error of law being jurisdictional.  We would argue by the converse, that if you are dealing with an inferior court, such as the District Court, there is no such presumption, and presumably then, consistent with the decision in Gray, addressing the wrong question can be jurisdictional error.  Could I then just go to the passages I rely on, Your Honours:  the Chief Justice at page 371.  Your Honours will see there that first of all, in the bottom half of the page, he accepted what I have called the Anisminic wrong question approach, “It may be jurisdictional error.”  At 372, about a quarter of the way down the page, in strong language said:

It is impossible to suppose that the Parliament intended that the Federal Court, acting under s 165(3) of the Act, could declare an election void if no irregularity had occurred.

So, he is addressing himself, in our submission, to what I have called the jurisdiction to decide, as distinct from the jurisdiction to inquire.  He went on to say why that was so.  He relied, among other things, on the fact that this was a power originally conferred on the Industrial Court, and secondly, he relied on the special and restricted nature of the jurisdiction conferred by Part IX.  He recognises the Anisminic principle and applies it fully, in this case, to the Federal Court. Justice Mason, at 374, last paragraph beginning that page:

In general, the grant of jurisdiction to a superior court carries with it the power to determine conclusively, subject to any appeal, the existence or otherwise of facts upon which the jurisdiction depends, unless the legislature otherwise provides.

Then on the next page:

The point has special force in relation to a superior court, even if it be a superior court with limited jurisdiction.

Then at 376 point six, almost an equally emphatic but contrary proposition to what Sir Harry Gibbs said:

It is nonsense to suppose that Parliament intended the Federal Court’s jurisdiction to depend on the actual occurrence of an irregularity.

So, his approach is:  this is a superior court, strong presumption, therefore jurisdiction to decide not subject to judicial review.  But even so, at 377, he does not deny the relevance of the Anisminic approach.  He says in the light of this conclusion, no scope for it.

Sir Ronald Wilson, at 378, last paragraph after the quotation at the bottom of the page or the reference to the section:

I agree with Mason J that these provisions do not evidence any intention by the Parliament that the jurisdiction of the Federal Court is to depend upon the actual occurrence of an irregularity.

That must be the jurisdiction to decide:

It is upon the next step that I have the misfortune to differ from his Honour.  It seems to me that Parliament could not have intended the Court to have jurisdiction to embark on an inquiry with all the potential.....if the claimed “irregularity” is not capable of constituting an irregularity -

So he agreed with Justice Mason as to power to decide and presumably the presumption is to superior courts but as we will see in a moment agrees with Your Honour Justice Brennan that the jurisdiction to inquire was not enlivened because an irregularity was not alleged.

Justice Brennan at 381 point 8, the last paragraph beginning on the page - and Your Honour had previously distinguished between the jurisdiction to inquire and the jurisdiction to decide:

The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity.  If he makes such a claim the court has jurisdiction to inquire; if he does not, the court lacks jurisdiction to inquire.

And then at 383 point 1 at the very top of the page, in my submission, agreeing with Justice Mason that once you get past that stage the decision that there is an irregularity is not judicially reviewable. 

If the jurisdiction of the Federal Court to conduct an inquiry depended on a finding by that court as to the existence to facts amounting to an irregularity, I would agree with Mason J. that prohibition would not lie.

And so I take Your Honour to be picking up the notion that if it is a matter of the Court making a finding, then that is presumed to be by virtue of the presumption that is beyond review: 

But as the question whether an “essential preliminary” to jurisdiction is to be answered by reference to the application and its annexures, and as those documents reveal an absence of jurisdiction to inquire, I would grant prohibition.

And then finally Justice Dawson at 386 point 9, four lines from the bottom of the page:

While the fact that a court is a superior court of record does not preclude prohibition being directed to it to prevent it from transgressing the limits of its jurisdiction, its status as such a court is prima facie inconsistent with the interference with its exercise of that jurisdiction by writ of certiorari directed to it by a supervisory court.

And he then goes on to refer to the fact that even Admiralty was subject to certiorari although it was a superior court.

Your Honours, so he rests pretty heavily on statutory intent, but at 395 at about a third of the way down, he refers to Anisminic and, in our submission, not disapproving of the approach, simply saying by inference that it is not available here because the Federal Court is a superior court.

So, Your Honours, what we draw from that is again, first of all, not by all judges but in the judgments, reference to the Anisminic approach, the wrong question approach.  Secondly, the very strong proposition that when it is a superior court, because of the presumption that it has power within jurisdiction both to be right and wrong, or to put it differently that within jurisdiction there is no presumption, in fact a contrary presumption that error deprives of jurisdiction, the Anisminic wrong question approach does not apply.

And what we would argue is that if that was an approach across the board then why throughout these judgments do we see the emphasis upon the Federal Court being a superior court?  And therefore, we would submit, that consistent with and implicit in that judgment is the notion that if it is an inferior court there is scope for the Anisminic “wrong question” approach.

The only other case I want to go to in any detail, Your Honours, is the next case but one in our list, Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132. That dealt with a statutory body, the Industrial Commission of South Australia, and the issue there was that the Registrar ‑ I just have to remind myself which way his decision was on the registration of rules. I think he granted it.

GAUDRON J:   He refused a rule change, did he not?

TOOHEY J:   On page 135 suggests he granted it, Mr Solicitor.

MR DOYLE:   Yes, he granted it and there was an application to the Full Commission for leave to appeal.  It was more or less common ground that in deciding the application for leave the Full Commission had wrongly considered that the Registrar’s decision was a discretionary one.  I think, Your Honours, all members of the court agreed that was either wrong or probably wrong.  On judicial review to the supreme court the argument was that because the Full Commission had misconstrued the position, got the question wrong, that there was a jurisdictional error, and the significance of it was that judicial review was excluded in other than cases of excess or want of jurisdiction. 

So the applicants had to establish that it was a jurisdictional error, and then furthermore had to establish that it was an error of the type of excess or want of jurisdiction as distinct from mere failure to exercise.  They succeeded in this Court 3:2, but again, in our respectful submission, there are allusions to the Anisminic approach.  Note here, Your Honours, we do not have a superior court, so again we seem to see the Anisminic “wrong question” approach coming in, although in the dissenting judgments some different approaches:  Justice Brennan, who held that the Full Court of the Supreme Court in the end had been right in granting judicial review.  At 141, Your Honour makes the point that:

This Court has not accepted Lord Diplock’s view that the distinction between jurisdictional and non-jurisdictional errors was for practical purposes abolished -

Nor do we argue that.  And Your Honour then said:

Making the distinction between jurisdictional and non-jurisdictional errors, this Court construes general privative clauses as impliedly exempting certiorari for jurisdictional error -

And then you referred to the particular language of section 95.

At 142, Your Honour said:

Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way.  Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction.

Then at 144 point 9, the passage which we would urge supports us, the last paragraph on that page:

The orders made by the Supreme Court were, in the first place, orders in the nature of certiorari removing the order of the Full Commission into the Supreme Court, quashing it and remitting the matter to the Full Commission.  The foundation of these orders is that, by reason of the jurisdictional error, the Full Commission had no jurisdiction to make the order it did.  The orders in the nature of certiorari were therefore founded on excess or want of jurisdiction.  They were validly made.  But the order in the nature of a mandamus ‑

et cetera, and Your Honour went on to deal with that.  But Your Honour treated that error as a jurisdictional error, and we make the point:  what was the error?  The error was that the Full Commission thought they were considering leave in relation to a discretionary decision.  They were in truth on Your Honour’s reasoning considering leave in relation to a decision that was not discretionary, and that was held to be a jurisdictional error.  In our respectful submission, that seems to line up with the addressing the wrong issue approach as constituting a jurisdictional error, and so we would argue that that supports us.

Your Honour Justice Deane was in dissent, and at 152 to 153 ‑ I will not read that passage, but Your Honour there took the view which perhaps Your Honour has been suggesting on occasions today that if they were, as it were, in their territory you cannot say it is jurisdictional error because they make a wrong decision along the way, and probably implicit in Your Honour’s reasoning is even if it is a fairly significant error it does not turn it into excess or want of jurisdiction, or indeed, jurisdictional error at all.  So, Your Honour there, as I understand Your Honour’s judgment, would be against the proposition we are arguing because Your Honour seemed to say that even as to this body, addressing the wrong question approach does not produce jurisdictional error.

Justices Dawson and Gaudron, we would contend, support our approach and we refer to page 160 at the top of the page in the first paragraph:

The issues raised when it is complained that necessary issues have not been decided -

as we would complain here -

and when it is asserted that, had they been decided, the result might have been different, are different from the issue that arises when it is contended that a discretionary decision is wrong. 

Again, in our submission, embedded in that is they addressed the wrong issue.

The Commission considered only whether leave to appeal should be granted to raise the latter question and, thus, failed to deal with the question whether leave should be granted to raise the different issues presented by the applications.  To that extent, the Commission failed to exercise the jurisdiction conferred upon it by s 104 of the Act.

Over the next page or so, Your Honours went on to develop the point that this was not just jurisdictional error but it was excess or want of jurisdiction rather than mere failure to exercise.  So, embedded in that, we submit, is the approach for which we contend.  Your Honour Justice McHugh was also in dissent, and at page 165, in particular about the middle of the page:

But the error of the Commission in so holding means no more than that the exercise of the discretion to grant or refuse leave in this case miscarried.

Took an approach contrary to that which we are urging upon the Court today, and Your Honour did not appear to recognise that as to a body such as this the wrong question approach could be taken.  So, Your Honours, the distinctions are fine ones and the differences within the Court on that occasion illustrate the difficulty but, again, within the majority approach, we contend, is embedded the wrong question approach is demonstrating jurisdictional error. 

Your Honours, I jumped over one case on our outline but I am not going to ask Your Honours to go to.  Can I just give Your Honours some page references to Sinclair v Mining Warden.  Our contention is that, again, at these passages there is a clear use of the “address the wrong question” approach as being jurisdictional error.  It was a mining warden’s court and pretty firmly in support of what we contend.  The page references are 478 to 479, Chief Justice Barwick;  483, Justice Gibbs;  486, Justice Stephen;  and also, 486, Justice Jacobs;  and that last reference is an interesting one because there Justice Jacobs makes the point - he, in effect, said, “Well, I don’t really care whether this body is judicial, quasi-judicial, or whatever it is, he addressed the wrong question, that was a jurisdictional error.”  So, he at least made it quite clear that he was not, in any sense, resting his decision on the fact that this body was not a court.

We submit that authority in this Court does support what is sometimes called the narrower Anisminic approach, namely, that it may be jurisdictional error when you misconceive the issue or address the wrong question.  Your Honours, we submit, that that approach is probably supported - and I am turning now to paragraph 20 of the outline - by the Privy Council decision in South East Asia Fire Bricks, and I will not read from it, but at the page referred to there.  Could I add a reference in that context to English courts taking this approach to Re Racal, (1981) AC 374, but in particular at 383E through to 384D, where, again, the distinction seems to be drawn that if it is an inferior court there is no presumption in favour of jurisdiction and addressing the wrong issue is to go beyond jurisdiction.

Your Honours, I will not go through the cases in paragraph 21 because they pre-date some of these developments and have to be read in that light although, we submit, they do seem to help us, but could I add two page references:  first of all, Reg v Australian Stevedoring Industry Board, at pages 117 to 119, and in the last of those cases Reg v Connell.  The reference to Justice Rich concurring is at 436, and could I just, as it were, underline the reference to Chief Justice Latham because at those passages, again, it is jurisdictional error; very much expressed in terms of the person misunderstanding the opinion that had to be formed.  So, once again, addressing the wrong issue.

Your Honours, if the Anisminic approach of addressing the wrong issue is, as it were, there, one could say, “Are there grounds for limiting it that would mean it didn’t apply to the District Court?”, and there are two or three that might be considered, it might be said, “This is an approach which only applies to courts of limited jurisdiction”.  In our respectful submission, first of all the line which has been drawn is that of superior court/inferior court, not limited jurisdiction.  Secondly, these days the notion of limited jurisdiction has become a very difficult one because it is not easy to say which courts are of limited or of unlimited jurisdiction, bearing in mind the way court structures are today.  Could it be said perhaps that this approach for which we contend is to be restricted to statutory tribunals?  In paragraphs 23 and 24 we argue why, as a matter of principle, this approach should not be restricted to statutory tribunals, and I think I can simply leave the argument in those two paragraphs to speak for itself, as it is not a particularly intricate one.

So what we submit is that if judicial review is available, then this concept of jurisdictional error should apply and the area of exclusion is superior courts.  There are a number of reasons for that exclusion and for confining it there.  The first is that historically “superior courts” was a term used to indicate a court whose jurisdiction was presumed.  Secondly, there are indications in the cases that the use by Parliament expressly or by implication of that term picks the same notion up.  Thirdly, there are practical arguments in favour of abstention in favour of superior courts.

So we submit that to the extent that the principle is unavailable, that is of the wrong question approach, it is only unavailable in relation to superior courts; that if Your Honours are satisfied that Judge Russell did ask the wrong question ‑ what we are entitled to do on this approach is to go to his reasons in the hope of demonstrating a jurisdictional error, and we submit that what his reasons demonstrate is that he clearly posed the wrong question, addressed the wrong issue.

BRENNAN J:   What was the issue which he was to address?

MR DOYLE:   The issue he should have addressed, Your Honours, I would put in these terms:  is it through his own choice that Mr Craig finds himself without representation?  I have put it quite crudely, but that is the essence of it.  What he did was address the question of whether Mr Craig was at fault in incurring the debts which he had paid off.

BRENNAN J:   But what has that question got to do with jurisdiction?

MR DOYLE:   My submission is that by addressing the wrong question in relation to the grant of a stay, His Honour granted the stay, making a jurisdictional error.  In other words, he ‑ ‑ ‑

BRENNAN J:   I know you say that, but that is the circularity of it.  In order to find an addressing of the wrong question of the kind that leads to jurisdictional error, do you not have to show that the repository of the power asked himself a question which was an impermissible question and which, if answered one way or the other, would determine the exercise of the power?

MR DOYLE:   Yes.

BRENNAN J:   Now, can you demonstrate that in relation to this question?

MR DOYLE: I hope so, Your Honour.  My submission is that going to the reasons, as we are entitled to in relation to jurisdictional error, that when one looks at page 5 of the appeal book that it is patent that the question he has asked is whether Mr Craig was at fault in the circumstances giving rise to these debts and, in our submission, that is not the question which was to be asked, and he is never asked the question which was to be asked, namely can it be said that it is through his own choice that he is before the court without representation?

BRENNAN J:   Why is not the relevant question, “Can this accused get a fair trial, having regard to his pecuniary state?”

MR DOYLE:   Because, in our respectful submission, the majority in Dietrich made it quite clear that that is not the end of the road, and the majority made it quite clear that a person may be relevantly indigent but, nevertheless, the trial may be relevantly fair.  Perhaps I should go to one or two passages but, in my submission, I think it was Your Honour Justice Deane who, I think, referred to the illustration of the person first of all who chooses not to use his money.

Now, Your Honour could say back to me, “Well, he at least has the money.”  But what about the person who, a day before trial, gave his money away?  In our submission Dietrich does not mean that such person can say, “Well, here I am.  The trial’s due to start.  I haven’t got the money any more.”

The tenor of the judgments in Dietrich is that you do not stop at the question, “Has the person got the means now?”  You consider the circumstances which gave rise to that, and fairness in the Dietrich concept means not forensically fair, it really means, “Is it fair that this man should go to trial unrepresented?” and the answer is, “Well, if he is unrepresented through his own choice, yes, it is fair,” and his own choice may be, “I don’t want a lawyer.”  His own choice may be, “I’ve got money and I’m not going to pay.”  His own choice may be, “Yesterday I gave my money away.”  But if it is his own choice then Dietrich does not assist him.

DEANE J:   But do you not put a gloss on it?  If you say, “Is it through his own choice” in the present tense the answer is, “No, it’s not” because on His Honour’s finding he did not have the money and he had been refused legal aid.  If you then say, “Well, why hasn’t he got the money?” and the answer is, “Through his own fault he hasn’t got the money,” and you then say, “Well, that means it’s through his own choice” you are asking the question that His Honour asked but you are just putting it back one and translating it into different verbiage really.

MR DOYLE:   In my submission, no, Your Honour, because His Honour simply did not address the issue, as I put to Your Honours this morning, as to whether it was quite reasonable to say to this man - I am just putting it in rough and ready terms - look, you had $20,000 a few months ago.  I know you had a number of debts that were pressing, but please at least explain to me why you could not have put aside 3 or 4 or 5000 for your legal representation?

Now we acknowledge that maybe he would have had a good answer and we do not deny that if the judge had addressed that question he might still have come to the same conclusion, but our point is that he did not actually address the right question at that time and so, in a sense I am putting a gloss on it, I suppose, Your Honour, but for two reasons.  First of all, because with all respect, the notion of fault, as used in the judgment of Dietrich perhaps, in retrospect. was not the ideal term to use.  Choice, might have been, we would urge, a better term or at least fault (in the sense of choice).  And then secondly, I am putting a gloss on it because I have to, as it were, fill out what I say is the question I say the judge should have asked.

Now, maybe at the back of the judge’s mind were the right notions and he just expressed himself badly, because I am not suggesting that he were as it were oblivious to the issue of how hard pressed was this man, but when you look at his reasons, in our submission, one can say quite comfortably, well, certainly the reasons are addressing the wrong issue and if he had got it right it was as it were, in gremino legis.  It is not there on the page.  So that is our submission on jurisdictional error. 

Finally, Your Honours, we come to the question of whether certiorari is available because it might said to us, well, either it does not lie to this Court, the district court, or it might be said it does not lie to this court hearing or trying a criminal information, and so I just need to deal briefly with those.

The reasons why we submit it lies to this Court are three, although one of them I am really not pressing any more.  The first one which I do not really press is that it is a court of limited jurisdiction.  The reason I do not press that, Your Honours, is that I realised on reflection that the cases in paragraph 26 of the outline which deal with certiorari going to courts of limited jurisdiction, when you look at those particular passages, they do seem to talk about certiorari to restrain the court doing the sort of thing it cannot do.  And I concede that a stay in a criminal case is the sort of thing it can do.  So I think on reflection, those cases do not really help me. 

But the second submission is that the predecessor local court and then it became the local and district criminal court was a body to which certiorari clearly lay and there is nothing in the present statutory constitution of the court to suggest that the ability to issue certiorari has gone.  So I do advance that submission as the strongest submission.

And then the other submission is that in South Australia there is one superior court and that is the Supreme Court of South Australia and section 6 of the Supreme Court Act - I do not ask Your Honours to look at it - which is referred to at the top of page 12, so declares it.  And so we have the statutory pattern that in South Australia, that is declared to be a superior court in terms.  No other court is and we would argue by inference that as it is the superior court for the State, it clearly has power to make orders in the nature of certiorari and the inference is that that power lies to all courts that are not superior because that was the old set up.

I do not need to develop that point any further because it turns entirely on the fact that the Supreme Court is a superior court so declared, and the District Court is not?  In our submission, in that context, one could not really construct from the fact that the District Court has certain contempt powers, certain protection for officers.  One could not construct a conclusion that it is a superior court.

Could I go then briefly to the proposition that certiorari clearly lay to the predecessor court, and then I will go to the current Act?  We have provided Your Honours with some photocopy extracts from Hannan’s Local and District Criminal Courts Practice.

BRENNAN J:   How does this demonstrate whether certiorari goes to the existing court?

MR DOYLE:   The argument is, Your Honour, the existing court is clearly the successor of the former court.

BRENNAN J:   You mean that it has jurisdiction of the same kind?

MR DOYLE:   Very similar, Your Honour, but as a matter of fact it is the successor to the local and district criminal court - - -

BRENNAN J:   It is a different court.

MR DOYLE:   Your Honour, it is a new court but, in our respectful submission, occupies the same position in our State in the judicial hierarchy, as did the predecessor court.  It has a wider jurisdiction but, one would say, a somewhat similar jurisdiction, and in one sense we would simply say as to the current District Court, there is nothing saying certiorari does not lie - - -

BRENNAN J:   That is a different problem.  I can understand that, but I just do not see how that proposition is strengthened by saying that it is “predecessor” whatever that may mean, and it was a court to which certiorari went.

MR DOYLE:   I put it this way, Your Honour - if we start from the proposition that the Supreme Court is the superior court - - -

BRENNAN J:   Yes.

MR DOYLE:   - - - and if the Court accepts that, prima facie, certiorari will go to any inferior court.

BRENNAN J:   Yes.

MR DOYLE:   Then we look at the District Court, and we say Parliament, first of all, has not made the District Court a superior court, so we can say we do not have to worry about that.  Secondly, Parliament has not said in terms that certiorari does not lie to the District Court.  So, a tick there.  Thirdly, we would say, bearing in mind that it is, perhaps in a loose sense, the successor to a court to which certiorari did lie, that would support the inference that certiorari lies equally to it, that it has stepped into the shoes, as it were, of a court to which certiorari did lie.  It may be a bit tenuous, but in terms of whether there is any parliamentary intent that it be beyond the reach of certiorari, the relevant things are, first of all, the absence of anything express in the Act; and then secondly, we would argue, the fact that it has, in a sense, stepped into the shoes of a court to which certiorari did lie.

TOOHEY J:   But did it lie in those terms, Mr Solicitor, or did the previous Act provide some comparable form of relief?

MR DOYLE:   What the previous Act did was really do what the Supreme Court Rules say, to say that the writ of certiorari will not go but orders in the nature of certiorari may be made.

TOOHEY J: That is sections 48 and 49 of the previous Act.

MR DOYLE:   Yes, Your Honour, yes.

TOOHEY J:   But does that not tell against you, in a way, the fact that the current statute does not set out any form of prerogative relief, either by that name, or according to some other formula?

MR DOYLE:   No, Your Honour.  In our respectful submission, actually, it tells our way because if one approaches it on the basis that, prima facie, the orders can be made by a superior court to any inferior court, what one actually looks for is exclusion of liability to the order and so the silence of the current Act, far from, as it were, arguing against us, supports us.  Because one would look for a provision saying such orders cannot be made because the supreme court is the superior court with power to issue such orders and, prima facie, they would go to courts lower in the hierarchy, as they always did anyway.

TOOHEY J:   I must say the legislative history strikes  me as equivocal, at best.

MR DOYLE:   It does not strike us that way, Your Honour, but it does depend a bit on your starting point.  If your starting point is: this is a court as to which I want some indication that certiorari should lie, then of course Your Honour is perfectly right.  But our submission is the appropriate starting point is that this is a court inferior to the supreme court in the hierarchy and therefore, absent an exclusion of certiorari, it will lie, and that is how we approach it.

TOOHEY J:   But I said as a matter of legislative history.  I am trying to isolate that from your argument as to principle.  If you have a statute which says that there are remedies in the form of prerogative relief available to an inferior court, that court disappears and is replaced by another court and there is no such provision, as a matter of legislative history, if it is not equivocal it tends to tell against you.

MR DOYLE:   Yes.  I would still argue to the contrary because the previous legislative provisions are not, in truth, provisions making the remedy available.  They are provisions reforming or restructuring the remedy.  That is all they do.  What they say is, “Do not issue the writ, make one of the modern orders”.  And in a new Act, with rule 98 of the Supreme Court Rules covering that ground, saying, “We do not issue the writs now, we make orders”, there was just no need to have it said again in the new Act.  It would have been complete surplusage.

TOOHEY J:   Yes, I see that.

MR DOYLE: So far from the old provisions, as it were, making the remedy available, what they did was to say in modern language, “Do not issue the old writ. Use the new form of order”. Perhaps I will just give Your Honours the section references, perhaps it is not really necessary to take Your Honours through them. So the particular provisions we rely on are sections 6, 11, 31, 48, 49, 54 and 56. But it probably is necessary to look at the provisions relating to the District Criminal Court and they start at section 317 about two‑thirds of the way through those extracts, because what I do have to acknowledge is that when we come to the provisions relating to the district criminal court, even in the previous Act there is not a word one way or the other about certiorari or other prerogative relief.

Our argument would be that while technically there were two courts, the local court and the district criminal court, they were staffed by the same judges and in a sense were two arms of the one court, and that is what they have now become under the new District Court Act, simply one court with two jurisdictions.

BRENNAN J:   But that is what they were not.

MR DOYLE:   They were not two courts?  No, Your Honour.

BRENNAN J:   No, they were two courts, were they not?

MR DOYLE:   Yes, they were two courts, but in our respectful submission it would be surprising if, although the Act is silent, if such orders could be made to it, in the old language, on its civil side and not on the criminal side unless there is a special rule about criminal proceedings.  In other words, the mere fact that it was constituted as two courts, one civil and one criminal, does not argue against the availability of the order.  The real issue, we would submit, is can the order be made in relation to proceedings on information.

BRENNAN J:   Your argument has to be that, if it has  got any relevance at all, and it all seems to me pretty tenuous, I must say, but if you want to say anything about it you have got to say that the old writs went to the District Criminal Courts.

MR DOYLE:   The difficulty, Your Honour, is that for quite a long time anyhow the Supreme Court rules had got into the modern form saying, “We don’t issue the writs.  We only make the orders.”  So by the time the District Criminal Court was created the Supreme Court rules had got into the modern form and so the writ still would not be issued, which actually suggest an answer that I had been searching for and had not found before, namely why was there no such provision as to the District Criminal Courts?  Maybe the answer is that by then the Supreme Court rules were in the modern form, and so there was no point.  When the District Criminal Court was created in 1969, having equivalent provisions that writs do not issue, you make the modern orders.  So in fact that might paradoxically support this submission we put.

BRENNAN J:   We really do not have to worry about this at all, do we?  All you are saying is that in 1969 the new rules were in, and they governed all courts other than the Supreme Court.

MR DOYLE:   Yes.

BRENNAN J:   Whatever they might be, whatever their names might be and whether a predecessor or successor.

MR DOYLE:   That is our primary submission, because we submit that the Supreme Court being the superior court, the orders go to all courts below it.  But then I am

really trying to meet the argument that there might be something special about the District Court that exempts it and we are saying that legislative history does not support that.

I will not go to the District Court Act, Your Honours.  It is, of course, a court of record by section 5 but not declared a superior court.  We submit that making it a court of record in this context is not significant.  It does not deny the availability of these orders, and in that context Your Honours might want to note that even the Magistrates Court in South Australia is by statute a court of record.  It is so declared by the Magistrates Court Act (1991), section 5.

Then the last obstacle to the order being made might be that these are proceedings on information, and that is dealt with in our written submission, the tenor of which is that to the extent that was a problem, the problem was the availability of writ of error and, as that is no longer available, that should not stand in the path.

Finally, in our outline we make the point that as a declaration was available, the fact that certiorari might not be available would not be reason for interfering.  But I think on reflection if certiorari was not available in the sense that there was no error reachable by it, then it is probably no answer for us to say, “Well, a declaration could be made anyhow” because one, presumably, would think that if the court could not intervene it would not seek to intervene by declaration.  So I am not sure that really advances our cause.  They are our submissions, if the Court pleases.

BRENNAN J:   Thank you, Mr Solicitor.  Mr Peek, do you have anything in reply?

MR PEEK:   Only two very brief matters, Your Honour.  I may have misheard my learned friend, but it seemed to me that in relation to the decision in Reg v Gray; Ex parte Marsh at 387, he put the proposition that that passage supported the view that certiorari does go to a superior court of record and instanced as an example of that the fact that it went to the High Court of Admiralty ‑ at least, that is what I thought that he said.

DEANE J:   That is not what he said.  He said the opposite, except for the example of the High Court of Admiralty.

MR PEEK:   That is all I wanted to mention.  That is my fault then.

DEANE J:   But he defamed Justice Dawson by attributing the comments to him.

MR PEEK:   I stand corrected, Your Honour.  The only other matter then that I would wish to mention is that of course ‑ and the Court is obviously aware of this ‑ we do not accept the proposition at the outset of my learned friend’s outline that this Court must go on the starting assumption that there was an error made by Judge Russell as the proper construction of the special leave in this matter.  Obviously we say that the special leave does centre on questions concerning certiorari, jurisdictional error, et cetera, but that in order to determine those, you do have to answer the question at some stage as to whether you do have an error.  You do not start with an assumption that you do.  I think that that has been the course of the proceedings today.  I do not wish to put anything else, if it please the Court.

BRENNAN J:   Mr Peek, could I just inquire what is the state of the proceedings against the appellant?

MR PEEK:   Awaiting the outcome of these proceedings, Your Honour.

McHUGH J:   He is not in custody?

MR PEEK:   No, I am not saying that, Your Honour.

TOOHEY J:   And no date fixed for trial presumably?

MR PEEK:   No, Your Honour.

BRENNAN J:   The Court will consider its decision in this matter.

AT 3.39 PM THE MATTER WAS ADJOURNED SINE DIE