Gillott v District Court of South Australia - [2019] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GILLOTT v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2019] SASC 132
Judgment of The Honourable Justice Peek
30 July 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - PARTICULAR INSTANCES OF JURISDICTIONAL ERROR
The plaintiffs own a property in the Adelaide Hills. They instituted a “minor civil action” in the Magistrates Court against the owner of an adjoining property, the defendant, which related to encroachment by the defendant’s trees.
At the trial before the Magistrate on 4 May 2018, the plaintiffs were unrepresented. The Magistrate permitted the defendant to be represented by Ms Zoë Justice (the defendant’s granddaughter), a solicitor practicing interstate. The Magistrate dismissed the claim, stating only that the action is “unsustainable”. The Magistrate ordered that the plaintiffs pay the defendant costs, which incorporated $451.00 for an arborist’s report and “$600.00 lump sum for attendance by Ms Gillett’s [sic] solicitor”.
District Court Judge Rice heard the plaintiffs’ application for a “minor civil review”. On 9 November 2018, the Judge set aside the Magistrate’s orders and gave judgment for the plaintiffs in the amount of $825.
On 8 May 2019, the defendant filed a summons for Judicial Review and a “Statement of Grounds” which asserted that the Judge’s orders were affected by jurisdictional error on the basis that the Judge (a) asked the wrong question; (b) failed to afford the defendant procedural fairness (which was ultimately not pressed); and (c) made an illogical or unreasonable decision.
On 28 June 2019, the matter came before this Court in the Chamber List. The plaintiffs applied for summary dismissal pursuant to rule 200C of the Supreme Court Civil Rules 2006 (SCR). Orders were made listing that application and requiring the defendant to file a List of Authorities and an Outline of Argument.
On 5 July 2019, the application for summary dismissal was heard and judgment was reserved.
Held, summarily dismissing the defendant’s application for Judicial Review:
1. The distinction between jurisdictional and non-jurisdictional errors must take into account the historical background of substantial and consistent High Court authority on the topic of “authorised and unauthorised errors”, or what has been referred to as “a jurisdiction to go wrong”. Attorney-General (NSW) v Quin (1990) 170 CLR 1; Craig v South Australia (1995) 184 CLR 163; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Minister for Immigration v SZMDS (2010) 240 CLR 611 referred to.
2. There is something of a spectrum of errors of law. At a high level, one may encounter error of law contravening fundamental common law principles; other errors of law may repose at much lower levels of seriousness. Munday v Gill (1930) 44 CLR 38; Johnson v Miller (1937) 59 CLR 467; Roger Johns v The Queen (1979) 141 CLR 409; Maher v The Queen (1987) 163 CLR 221; Wilde v The Queen (1988) 164 CLR 365; Katsuno v The Queen (1999) 199 CLR 40 referred to.
3. Here, regard must be had to the following matters: the structure and purpose of the minor civil action jurisdiction (a purpose of which is to overcome the average person’s innate fear of becoming trapped in protracted and expensive litigation); the “equity, good conscience and no technicalities” formulation; the movement towards an inquisitorial system; the inter-relationship between a trial in the Magistrates Court and District Court review proceedings; the material placed before this Court concerning the District Court review; and the nature and seriousness of the error said to have been made. Taking all of these considerations into account, there is no basis upon which it can be demonstrated that the Judge committed jurisdictional error. Magistrates Court Act 1991 (SA) s 38 considered. Craig v South Australia (1995) 184 CLR 163; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Griggs v Noris Group of Companies (2006) 94 SASR 126; Harradine v District Court of South Australia (2012) 280 LSJS 572 referred to.
4. The defendant’s reliance on remarks (which in any event were no more than obiter dicta) in City of Richmond v Scantelbury [1991] 2 VR 38 is misplaced. While a District Court Judge will always pay appropriate respect to a decision of an interstate Supreme Court Judge, he or she is not bound to follow it. Lipohar v The Queen (1999) 200 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 referred to.
Magistrates Court Act 1991 (SA) s 38(1), s 38(6), s 38(7), s 38(8), s 38(9), referred to.
Attorney-General (NSW) v Quin (1990) 170 CLR 1; Craig v South Australia (1995) 184 CLR 163; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; Johnson v Miller (1937) 59 CLR 467; Katsuno v The Queen (1999) 199 CLR 40; Kirk v Industrial Commission (NSW) (2010) 239 CLR 531; Maher v The Queen (1987) 163 CLR 221; Minister for Immigration v SZMDS (2010) 240 CLR 611; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Gray; Ex parte Marsh (1985) 157 CLR 351; Roger Johns v The Queen (1979) 141 CLR 409; Wilde v The Queen (1988) 164 CLR 365, discussed.
City of Richmond v Scantelbury [1991] 2 VR 38; Griggs v Noris Group of Companies (2006) 94 SASR 126; Harradine v District Court of South Australia (2012) 280 LSJS 572; Lipohar v The Queen (1999) 200 CLR 485; R v Nat Bell Liquors Ltd [1922] 2 AC 128; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434, considered.

GILLOTT v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2019] SASC 132
Civil
PEEK J.
Overview

I will refer to the parties before this Court in a way consistent with the nomenclature used in both the lower courts. Mr Michael Spalding and Ms Nina Amisano (the plaintiffs) are the owners of a property in the Adelaide Hills. They instituted a “minor civil action” in the Magistrates Court against the owner of an adjoining property, Mrs Mary Gillott (the defendant) for damages caused by trees on her property. The Magistrate dismissed the action. A District Court Judge heard the plaintiffs’ application for review and set aside the Magistrate’s orders and gave judgment for the plaintiffs in the amount of $825. The defendant now seeks Judicial Review of the Judge’s decision; and pursuant to rule 200C of the Supreme Court Civil Rules 2006 (SCR), the plaintiffs (the present respondents) seek summary dismissal of that application. I now summarily dismiss the defendant’s application. My reasons follow.
The chronological factual background
At the trial before the Magistrate on 4 May 2018, the plaintiffs were unrepresented. Mr Spalding, the first plaintiff, has no legal training or expertise. He appeared on his own behalf and also for his partner, the second plaintiff. The Magistrate permitted Ms Justice, a solicitor practising interstate, to appear for the defendant on the basis that she is the granddaughter of the defendant who is very elderly. In dismissing the plaintiff’s claim, the Magistrate gave no reasons, stating only that the action is “unsustainable”. He ordered that the plaintiff pay the defendant costs in a total amount of $1,051.00, being $451.00 for an arborist’s report and “$600.00 lump sum for attendance by Ms Gillett’s (sic) solicitor”.[1]
[1] I return to this aspect of the proceedings below.
On 5 October 2018, District Court Judge Rice heard the plaintiffs’ application for review of the Magistrate’s decision pursuant to s 38(7) of the Magistrates Court Act 1991 (the Act). Ms Justice was again permitted to appear for the defendant and the plaintiffs continued to be unrepresented.
The judgment of District Court Rice
On 9 November 2018 Judge Rice delivered judgment allowing the review. He set aside the Magistrate’s orders (including the costs order[2]) and ordered that the defendant pay the plaintiff the sum of $825.00. His Honour stated:
[2] Since the Judge set aside the Magistrate’s orders, it was quite normal to set aside the costs orders as “following the event”. However, it should be mentioned for future reference that an exceptional grant of permission for the elderly defendant to be represented by her granddaughter, who was in fact an experienced solicitor, was a significant benefit for the defendant well beyond, say, a grant of permission for her to be represented by her daughter (who was not a solicitor). This outcome constituted a commensurate detriment for the lay plaintiffs which should not have been further compounded by an eventual award of costs against them of “$600.00 lump sum for attendance by Ms Gillett’s (sic) solicitor”. I appreciate that the amount of $600 was computed by reference to Ms Justice’s travelling costs rather than professional fees, but I consider that that makes no practical difference here. If a party in a minor civil action is granted the advantage of being represented by a person of their choice, and is subsequently successful, any order of costs in favour of that party should be limited to the amount that may generally be ordered in favour of an unrepresented litigant as has been delineated by the Full Court; see generally Police v Rogers (2017) 130 SASR 190, [121]-[131]. In the present case, there was no suggestion that the defendant had paid, or had any legal obligation to pay, the travelling costs of her granddaughter and no such award should have been made.
13. What is abundantly plain from the legislative scheme is that the Court should inquire as the matters in dispute between the parties and resolve them quickly, to some degree without formality, and without the right to appeal in the conventional sense. This Court has the power to review in the way outlined, without any right of appeal to another court. It is clearly envisaged that there will be an inquiry into the dispute with a curtailed right of appeal given the relatively minor nature of the dispute and the need for finality.
14. The District Court has the power to re-hear evidence taken before the Magistrates Court. The procedure undertaken in this Court in this case, was in the nature of re-hearing the evidence, although it is unclear how much evidence was taken in the Magistrates Court, as district from a legal argument. This Court also has the power to rescind a judgment and substitute a judgment that the Court considers appropriate. The decision of the Special Magistrate here was to dismiss the action and that amounts to a judgment.
15. For those reasons, I am of the view that I have the power to entertain and rule upon an action in private nuisance by the plaintiff against the defendant arising from the application and evidence on the review. I have that power because that is something the Special Magistrate should have done and/or I am able to do it of my own motion.
16. A private nuisance is an unreasonable interference with the use and enjoyment of the land. The basis of the liability is control over what happens on land. The defendant was obliged to maintain the trees so that they did not amount to an unreasonable interference with the use and enjoyment by the plaintiff of his land. There is no doubt that the encroachment by the branches was known or ought to have been known to Ms Gillott or other person responsible for the trees, especially their maintenance. There were reasonable precautions which she could and should have taken to prevent or minimise the risks of interference or encroachment. On the evidence before me there was such an interference and a failure to do anything about it.
17. In such a situation, the law permits self-help or abatement by someone in the plaintiff’s position. Abatement can, in some situations, be effected without entering neighbouring land (which may amount to trespass). Abatement does permit overhanging branches of a tree to be lopped to the boundary line and such branches to be placed back onto the property on which the tree is situated.
18. The plaintiff did that on some branches, but it is clear that he trespassed on the defendant’s property for that purpose and that the pruning was excessive, lacked care and was unprofessional.
19. As mentioned earlier, the plaintiff seeks to recover damages, not for actual damage or the cost of remedial work, but for the cost of pruning the trees back to the fence line and removal of the cut timber and foliage from the site. The defendant relies on upon Victorian authority to resist the claim for this type of damage (see Justice Kaye in Richmond City Council v Scantelbury [1991] 2 V.R.38 at 48). It was submitted that, as a matter of legal principle, the plaintiff is not entitled to recover the costs of effecting the abatement itself in damages.
20. I make some comments about that case.
21. Although I am not bound to follow so much of that case as was necessary for the decision, it is obviously of persuasive authority. Justice Kaye was applying earlier authorities that were relevant to the facts of the case before him. That was a claim against the defendant for damages for injuries suffered to the complaint’s residence resulting from the encroachment of roots of an Elm tree. It is clearly distinguishable from the present case.
22. More importantly, his Honour did not have the very broad legislative directive to decide the case ‘…according to equity, good conscience and the substantial merits of the case...’.
23. Considering the facts of this case objectively and logically, why should the plaintiff have to bear costs of pruning the branches and removing them when none of the cause was any of his making? The defendant allowed the branches to grow well over onto the plaintiff’s property and thereby unreasonably interfered with his use and enjoyment of his land. To allow his proper use of his own property it was necessary to prune and remove some of the branches. The plaintiff cannot be criticised for seeking professional help. The correspondence between the parties reveals that the plaintiff was seeking a 50% contribution from the defendant for that purpose. In my view that is reasonable and appropriate.
The application for Judicial Review
On 8 May 2019 (at the very end of the six month time limit), the defendant filed a summons for Judicial Review together with an affidavit of Ms Justice with exhibits (sworn 8 May 2019) and a “Statement of Grounds” which was as follows:
1.   Nature of application
Application for judicial review of an order made by a Judge of the District Court of South Australia in excess of jurisdiction.
2.   Decision, act or omission
The Orders of his Honour Judge Rice of the District Court of South Australia made on 9 November 2018 in Spalding & Anor v Gillott (File No. DCCIV-18-671).
3.   Grounds of review
The Orders of his Honour Judge Rice (the Judge) made on 9 November 2018 are affected by jurisdictional error because:
(a)    The Judge asked himself the wrong question, made erroneous findings, and reached a mistaken conclusion;
(b)    The Judge failed to afford the respondent procedural fairness because his Honour failed to address, in reasons and findings, submissions advanced on her behalf centrally relevant to the decision being made and, as such, did not take those submissions into account; [Withdrawn]
(c)    The Judge’s decision was illogical or unreasonable because the conclusion reached by him was not supported by the materials before him.
4.   Orders sought
That the Orders of Judge Rice made on 9 November 2018 be set aside.
On 28 June 2019 this matter came before me in the Chamber List. Ms Justice appeared for the defendant and the plaintiffs were unrepresented. I explained the legal position to Mr Spalding. He was concerned about the longevity of the proceedings and about his unavailability beyond the following Friday due to his employment. He wished to apply for dismissal of the application as soon as possible. I ordered that the application would be heard on Friday 5 July 2019. I inquired of Ms Justice as to the time she needed to file a List of Authorities and an Outline of Argument. She nominated 4pm on 3 July 2019 and it was so ordered.
The defendant’s documents were filed within that schedule. I should say, not by way of criticism, that the ‘Outline of Argument’ was actually a substantive written submission in excess of eight closely typed pages prepared by experienced Counsel at the Queensland Bar. I will refer to it as the written submissions.
On 5 July 2019 I heard the application for summary dismissal. I received the affidavit (and annexures) that Ms Justice wished to tender.[3] Ms Justice proceeded to tender the written submissions, adopt them, and made little further comment. Mr Spalding was unable to proceed beyond opposing the application and submitting that it should be dismissed at this time. I reserved judgment.
[3] Since the plaintiffs were unrepresented, I received the material subject to matters of inadmissibility arising; having now had the chance to consider the material, I receive it unconditionally as relating to the defendant’s contention of jurisdictional error. It is an important matter, worth restating, that in South Australia affidavit evidence may be tendered when Judicial Review based on jurisdictional error is claimed but it will not be admitted in relation to a claim of “error on the face of the record”. See as examples: R v Nat Bell Liquors Ltd [1922] 2 AC 128, 155-156 (Lord Sumner); R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338, 352-353 (Denning LJ); Craig v South Australia (1995) 184 CLR 163, 176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Kirk v Industrial Commission (NSW) (2010) 239 CLR 531, 576-577 [82]-[85] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Unlike some Australian jurisdictions where subsequent legislation has addressed the decision in Craig, in South Australia the content of “the record” in the context of certiorari for “error of law on the face of the record” continues to be governed by the decision in Craig. In the present case, the record would not include the reasons of Judge Rice and this is no doubt the reason why the present claim for Judicial Review is restricted to jurisdictional error.
The defendant’s Ground (a)
The Statement of Grounds above makes plain that all grounds are restricted to jurisdictional error; and this is again confirmed in the written submissions.
The essential contentions by the defendant as to Ground (a) are as follows:
18. The SOG [Statement of Grounds] identifies classic instances of jurisdictional error. Ground (a) invokes the “wrong question asked” ground, insofar as the SADC misconstrued s 38(7)(e) of the MC Act, such that the SADC misconceived the nature of the function it was to perform in conducting the review. Ground (b) invokes the failure to afford procedural fairness, but this ground is not pressed. Ground (c) invokes the illogicity or unreasonableness ground.
…
Ground (a) – Wrong question asked
29. Ground (a) is encapsulated by the following example of when an inferior court commits jurisdictional error amenable to the writ of certiorari given by the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) in Craig v South Australia, which the plurality, in Kirk v Industrial Court (NSW), described in the following terms:
“[M]isconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.”
30. In brief, the SADC misconstrued s 38(7)(e) of the MC Act insofar as Judge Rice concluded the provision permitted the Court, in conducting the review, to depart from the established principles of substantive law applicable to the recovery of damages in actions for private nuisance. As the foregoing cases demonstrate, that is not the impact of s 38(7)(e) of the MC Act. In so doing, Judge Rice misconceived the nature of the function which the SADC was performing in hearing and determining the review.
Jurisdictional and non-jurisdictional errors

It is true that there are cases in which a Judge so fundamentally misconstrues a relevant statute that he or she thereby misconceives the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case; such a situation is sometimes expressed in terms of a Judge asking the wrong question. However, in R v Gray; Ex Parte Marsh, Gibbs CJ made the following comment, within which he endorsed a pertinent observation by Lord Wilberforce:[4]
There is a well recognized 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: see, for example, Reg. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [(1951) 82 C.L.R. 177, at p 186] and Reg. v. Federal Court of Australia; Ex parte Pilkington ACI. (Operations) Pty. Ltd. [(1978) 142 CLR 113, at pp 126-127]. However, the question on which side of the line a particular case should fall may be a very difficult one: Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [(1953) 89 C.L.R. 636, at p 647]. Since Anisminic Ltd. v. Foreign Compensation Commission [[1969] 2 A.C. 147] 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. In that case Lord Wilberforce said [[1969] 2 A.C., at p.210]:
"... the cases in which a tribunal has been held to have passed outside its proper limits are not limited to those in which it had no power to enter upon its inquiry or its jurisdiction, or has not satisfied a condition precedent. Certainly such cases exist ... but they do not exhaust the principle. A tribunal may quite properly validly enter upon its task and in the course of carrying it out may make a decision which is invalid – not merely erroneous. This may be described as 'asking the wrong question' or 'applying the wrong test' - expressions not wholly satisfactory since they do not, in themselves, distinguish between doing something which is not in the tribunal's area and doing something wrong within that area - a crucial distinction which the court has to make."
See also per Lord Reid [[1969] 2 A.C., at p.171] and per Lord Pearce [[1969] 2 A.C., at p.195]. [Emphasis added]
[4] (1985) 157 CLR 351, 371.
The observation in emphasis is of importance here. It is not difficult for virtually any error of law to be reshaped by a litigant into the form of a “question”, which is then held up and sought to be characterised as the “wrong question”, and in turn asserted to be determinative ipso facto of jurisdictional error.
Any distinction between jurisdictional and non-jurisdictional errors must take into account the historical background of substantial and consistent High Court authority on the topic of “authorised and unauthorised errors”; or what is sometimes referred to as “a jurisdiction to go wrong”. In Craig, the Court referred to the traditional approach thus:[5]
… [T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
[5] (1995) 184 CLR 163, 179–180.
It has long been necessary to distinguish between the nature of an appeal and an action for judicial review. A basic premise is that unless conferred by statute, a right of appeal will not exist; and in the absence of a right of appeal, the more limited remedy of judicial review may sometimes be unable to cure certain forms of error. Thus in Attorney-General (NSW) v Quin, Brennan J stated:[6]
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[6] (1990) 170 CLR 1, 35-36.
While a distinction between “authorised” and “unauthorised” errors and terms such as “a jurisdiction to go wrong” may appear somewhat awkward, the terminology has respectable parentage. Thus in Minister for Immigration v SZMDS, Gummow ACJ and Kiefel J noted:[7]
16. Of the distinction between jurisdictional and non-jurisdictional error in the setting of the Australian Constitution, Justice Selway, writing extrajudicially, said:
"Notwithstanding the difficulty, indeed often apparent artificiality, of the distinction, it is a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Such a distinction is inherent in any analysis based upon separation of powers principles." [Citations omitted]
[7] (2010) 240 CLR 611, 618.
The decision of the High Court in Kirk v Industrial Court
At paragraph [29] of the written submissions (above at paragraph [10]), the defendant seeks to rely upon the third example, in the third category, in the passage in Craig v State of South Australia[8] (Craig) there referred to. However, that passage, and the passage in Kirk v Industrial Court (NSW)[9] (Kirk) referring to it, are here somewhat wrenched out of context, in that the Court in Craig emphasised that this third example to the third category is anything but a simple matter.
[8] (1995) 184 CLR 163.
[9] (2010) 239 CLR 531.
The Court in Kirk did not essentially differ from that assessment; their Honours there examined the approach that had been taken in Craig, particularly noting the three categories of jurisdictional error there formulated (with three examples being given of the third category) thus:[10]
First, the Court stated[11], as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added).
Secondly, the Court pointed out[12] that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.)
Thirdly, the Court amplified[13] what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.
The Court said[14] of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes[15], R v Gray; Ex parte Marsh[16] and Public Service Association (SA) v Federated Clerks' Union[17].
In Kirk, the Court did not suggest that the above passage was erroneous but rather emphasised that it should not be seen “as providing a rigid taxonomy of jurisdictional error”.[18] In the same vein, their Honours referred to the three examples given of the third category and emphasised that they “are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example”.[19]
[10] (2010) 239 CLR 531, 573-574 [72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[11] (1995) 184 CLR 163 at 177.
[12] (1995) 184 CLR 163 at 177.
[13] (1995) 184 CLR 163 at 177‑178.
[14] (1995) 184 CLR 163 at 178.
[15] (1978) 139 CLR 482.
[16] (1985) 157 CLR 351 at 371.
[17] (1991) 173 CLR 132.
[18] (2010) 239 CLR 531, 574 [73].
[19] (2010) 239 CLR 531, 574 [73].
The two errors identified by the Court in Kirk
It is to be emphasised that in Kirk, a serious criminal prosecution was involved. The offence was punishable upon conviction by a penalty; indeed, the maximum penalty under the Act was two years imprisonment.[20] The Court found there to be two errors constituting jurisdictional error.
[20] As an additional penalty for a second offence: see Occupational Health and Safety Act 2000 (NSW) ss 47(2) and 51A.
The first error was the very serious error involved in the lower Court hearing the case without adequate particularisation of the acts and omissions said to found the charges. The High Court scrutinised the nature of the charge and stated:[21]
28. The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). …
…
30. … the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller[22] where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. …
…
74. The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
75. The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.
[21] (2010) 239 CLR 531.
[22] (1937) 59 CLR 467 at 495.
The second error was the very serious error involved in the prosecution calling the accused to give evidence at his own trial. As to this, the Court stated:[23]
51. Section 163(2) of the IR Act provides that the rules of evidence applied to the Industrial Court. Section 17(2) of the Evidence Act 1995 (NSW) ["the Evidence Act"] was thus engaged. That sub‑section provides that a defendant is not competent to give evidence as a witness for the prosecution. The provision made by s 17(2) could not be waived. Section 190 of the Evidence Act permits a court, if the parties consent, to dispense with some of the provisions of the Act, but the provisions made by Div 1 of Pt 2.1 of the Act (ss 12‑20) concerning the competence and compellability of witnesses may not be waived. …
53. It may be that some departures from the rules of evidence would not warrant the grant of relief in the nature of certiorari. That issue need not be explored. The departure from the rules of evidence in this case was substantial. It was not submitted that either the nature of the departure, or the circumstances in which it occurred, were such as to warrant discretionary refusal of relief[24].
…
76. In addition to the error just considered, the Industrial Court misapprehended a limit on its powers by permitting the prosecution to call Mr Kirk at the trial. The Industrial Court's power to try charges of criminal offences was limited to trying the charges applying the laws of evidence. The laws of evidence permit many forms of departure from the rules that are stated. Many, perhaps most, departures from the strict rules of evidence can be seen as agreed to by parties at least implicitly. But calling the accused as a witness for the prosecution is not permitted, even if the accused consents to that course. The joint trial of Mr Kirk and the Kirk company was not a trial conducted in accordance with the laws of evidence. The Industrial Court thus conducted the trial of Mr Kirk and the Kirk company in breach of the limits on its power to try charges of a criminal offence.
[23] (2010) 239 CLR 531.
[24] See, eg, Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.
The analysis of the concept of jurisdictional error in Kirk
In Kirk, the Court stated:[25]
66. In Craig v South Australia, this Court recognised the difficulty of distinguishing between jurisdictional and non‑jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala:
"The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
…
71. It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. [Citations omitted]
[25] (2010) 239 CLR 531.
Of course, the topic of jurisdictional error has been the subject of very many comments by Judges and academics, both before and after Kirk.[26] Indeed in Kirk, the Court referred to a good deal of such commentary, including that by Professor Sawer[27] and Professor Jaffe[28] in the following passages:
57. In part, perhaps in large part, these difficulties stem from the existence of unresolved competition between two opposing purposes for the grant of certiorari. As Professor Sawer wrote, more than 50 years ago, the English common law courts sought to control inferior courts by "keeping the inferior tribunal within its 'jurisdiction' [which] may be equated with compelling the inferior tribunal to observe 'the law', ie, what the superior tribunal considers the law to be". Yet at the same time "it [was] usually desired, for reasons of expediency, to give the inferior decision some degree of finality, or, as is often said, some jurisdiction to go wrong". Those two purposes pull in opposite directions. There being this tension between them, it is unsurprising that the course of judicial decision‑making in this area has not yielded principles that are always easily applied. As Sawer wrote, "it is plain enough that the question is at bottom one of policy, not of logic".
…
64. As Jaffe rightly pointed out, it is important to recognise the use to which the principles expressed in terms of "jurisdictional error" and its related concept of "jurisdictional fact" are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a "tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction". Jaffe expressed the danger, against which the principles guarded, as being that "a tribunal preoccupied with special problems or staffed by individuals of lesser ability is likely to develop distorted positions. In its concern for its administrative task it may strain just those limits with which the legislature was most concerned"[29]. It is not useful to examine whether Jaffe's explanation of why distorted positions may develop is right. What is important is that the development of distorted positions is to be avoided. And because that is so, it followed, in that author's opinion, that denominating some questions as "jurisdictional" "is almost entirely functional: it is used to validate review when review is felt to be necessary ... If it is understood that the word 'jurisdiction' is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified."
[26] I note in passing that in footnotes to his paper “Jurisdictional Error After Kirk: Has It A Future?” (Supreme and Federal Court Judges Conference January 2012), Justice Basten of the NSW Court of Appeal collected dozens of articles and Judicial references over the two years since publication of Kirk. Someone else might like to perform that task for the intervening period of seven years until now.
[27] “Error of Law on the Face of an Administrative Record” (1956) 3 University of Western Australia Annual Law Review, 24, 34-35.
[28] "Judicial Review: Constitutional and Jurisdictional Fact" (1957) 70 Harvard Law Review 953.
[29] (1957) 70 Harvard Law Review 953 at 963.

In the post-Kirk decision of Hossain v Minister for Immigration and Border Protection, Kiefel CJ, Gageler and Keane JJ referred to the concluding words of Professor Jaffe above at paragraph [23] and stated:[30]
20. Six members of this Court picked up that language of Professor Jaffe, and more importantly gave effect to that underlying conception of jurisdiction and of jurisdictional error, when they chose in Kirk v Industrial Court (NSW) to express the constitutionally entrenched minimum content of the supervisory jurisdiction of a State Supreme Court to enforce "the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court" in terms of the "distinction between jurisdictional and non- jurisdictional error". Faced with the privative clause in s 474 of the Migration Act, six members of the Court had previously given effect to the same conception in invoking the same distinction in Plaintiff S157/2002 v The Commonwealth to explain the constitutionally entrenched minimum content of the jurisdiction conferred on the Court by s 75(v) to enforce the limits on the exercise of Commonwealth executive or judicial power by officers of the Commonwealth.
…
22. For so long as there remains a necessity for courts to fall back on constitutionally entrenched minimum jurisdictions to engage in judicial review of administrative action, however, the traditional distinction between jurisdictional and non-jurisdictional error cannot be avoided. The traditional distinction can be explained in more modern language. But an attempt to reframe the distinction in entirely new language is unlikely to be helpful.
[30] (2018) 92 ALJR 780, 786-787.
Contravention of fundamental common law principles
A number of academic commentators post-Kirk have taken a somewhat gloomy view to the effect that the term ‘jurisdictional error’ has become little more than a justificatory label. For example, Chris Finn opined:[31]
First, the court has evidently endorsed the long-held suspicion that labelling an error as "jurisdictional" is simply a functional post hoc classification. It reflects the court's view that the identified error or errors, the "distorted positions" as identified in Kirk, are sufficiently serious to warrant intervention.
This means that the predictive power of that label is limited. It will be difficult, or perhaps more difficult, to formulate in advance clear analytic categories of jurisdictional error. At best, intuitive assessments will need to be made of the extent to which a decision-making body is straying from its statutorily assigned functions or beyond its associated powers.
[31] Chris Finn, “Constitutionalising supervisory review at State Level: The end of Hickman?” (2010) 21(2) Public Law Review 92, 103.
I am less gloomy. In my view, the two errors identified by the Court in Kirk were very serious indeed; and it was not surprising and not unpredictable, that the High Court would hold that they were “jurisdictional errors”.
I will not transgress by speaking “in more modern language” or “in an entirely new language”,[32] but I will briefly refer to some slightly older words to suggest that the matter of contravention of fundamental common law principles is a relevant factor (albeit not the only factor) when considering whether a particular error constitutes jurisdictional error. There is here a broad historical background of the High Court’s approach to contravention of fundamental common law principles in a number of different contexts and I will refer to only a few examples in chronological order.
[32] Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, 786-787, [22] (Kiefel CJ, Gageler and Keane JJ).
In 1930, in Munday v Gill,[33] a number of defendants were charged on separate Informations with offences arising out of an unlawful assembly and all were summonsed to appear before a Magistrate. At the first trial (of one defendant), the evidence of two police officers was called and a conviction resulted. By express consent of counsel for all the other defendants, all were tried together by adopting the police evidence given in the first trial, together with the depositions of two further witnesses. All were convicted and fined. A rule nisi for statutory prohibition was obtained and made absolute by the NSW Full Court on the basis that the Magistrate had no jurisdiction to try several Informations against different defendants, even with their consent. From this order the prosecution appealed by special leave to the High Court.
[33] (1930) 44 CLR 38.
Isaacs CJ would have dismissed the appeal and stated:[34]
The basic principle relevant to this case is that stated by Lord Atkin (then Lord Justice) in R. v. North; Ex parte Oakey, namely, "the want of jurisdiction ... is based upon the breach of a fundamental principle of justice." The principle has been variously phrased in prior cases, notably by Lush J. in Martin v. Mackonochie, who held that where an irregularity in procedure is "so vicious as to violate some fundamental principle of justice," a prohibition is proper. That language was upheld by Thesiger L.J. in the Court of Appeal in Martin v. Mackonochie, and by Scrutton L.J. in R v North. See In re Dillett. It is a fundamentalprinciple of the common law that "each case ought to stand on its own merits, and should be decided on the evidence given with relation to that particular charge." [Emphasis added] [Citations omitted]
[34] (1930) 44 CLR 38, 54.
However, Dixon J (with whom Rich J concurred)[35] held that the prosecution appeal should be allowed. His Honour considered that if a jury trial had been involved “it might well be that … an attempt by a Court to try simultaneously more than one case before one jury would involve too serious an irregularity to admit of waiver”.[36] However, his Honour held that the position concerning summary proceedings for statutory offences was different and concluded:[37]
It may be conceded that defendants charged upon different informations for summary offences are entitled to separate hearings, but these cases show that in England, Victoria and New Zealand it has long been considered that failure to give effect to this right does not go to the jurisdiction of the justices, nor to the validity of the conviction, but is an irregularity only which the defendants may waive. This view is in accordance with principle as well as with justice and convenience. The statutory requirement that an information shall be confined to one offence does not appear to affect the question whether a defendant may waive his right to a separate hearing of every information.
[35] Gavan Duffy and Starke JJ in a separate joint judgment were also in favour of allowing the appeal.
[36] (1930) 44 CLR 38, 87-88.
[37] (1930) 44 CLR 38, 89-90.
In 1937, the seminal case of Johnson v Miller[38] was before the High Court and was decided in favour of the defendant. That decision was relied upon in Kirk and I will refer only to some remarks of Evatt J which resonate here:[39]
It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court’s inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. … It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. [Emphasis added]
[38] (1937) 59 CLR 467.
[39] (1937) 59 CLR 467, 497-498.
In 1979, in Roger Johns v The Queen,[40] the High Court quashed a conviction for armed robbery because a juror had been seated after the appellant’s peremptory challenge had been withdrawn by his counsel without instructions. Barwick CJ referred to “the fundamental error of not giving effect to the challenge” and stated that the “right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists”.[41]
[40] (1979) 141 CLR 409.
[41] (1979) 141 CLR 409, 418. Gibbs J (with whom Mason J agreed) also addressed the fundamental importance of the right of a defendant to challenge a juror. See (1979) 141 CLR 409, 428.
In 1987 in Maher v The Queen,[42] the appellant had pleaded not guilty to the 19 charges on the Indictment and a jury was empanelled. Later, further Counts 20 and 21 were added to the Indictment and the appellant was re-arraigned before the same empanelled jury and pleaded not guilty to those charges. The appellant was convicted of Count 20. In quashing that conviction, the Court stated:[43]
The only issues which a jury could have been sworn and empanelled to try on 10 May were the issues then raised by the applicant's pleas to the nineteen counts then charged in the indictment. Those were the issues on which the jury were entitled and could be charged to return their verdicts. … Re-arraigning the applicant on the new counts and giving him in charge of the jury on the new counts did not alter the issues which the jury had been sworn to try. The jury oath of 10 May did not extend to issues which could not be lawfully added to the issues then raised by the pleas to the nineteen counts in the indictment. …
[42] (1987) 163 CLR 221.
[43] (1987) 163 CLR 221, 232-233 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ).
The Court concluded that: “A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect.”[44]
[44] (1987) 163 CLR 221, 234.
In 1988, the Court heard the case of Wilde v The Queen[45] which concerned the joinder of a number of sexual and other charges on two different occasions against two different women. The NSW Court of Criminal Appeal held that the evidence was not cross admissible and that the charges should not have been joined but applied the proviso. In the High Court, all of the Justices considered that the basal question was whether the trial was so fundamentally flawed that the proviso had no application, but differed as to the application of that approach to the instant case. The majority stated:[46]
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt [(1963) 81 WN (NSW) 143, at p 148]; Reg. v. Henderson [(1966) VR 41, at p 43]; Reg. v. Couper [(1985) 18 ACrimR 1, at pp 7-8]. [Emphasis added]
[45] (1988) 164 CLR 365.
[46] (1988) 164 CLR 365, 373. The majority (Brennan, Dawson and Toohey JJ) determined that the error was not “of a fundamental kind” and that it was proper to apply the proviso. The minority (Deane and Gaudron JJ) took the opposite view. See (1988) 164 CLR 365, 375 (Deane J), 383 (Gaudron J).
In 1999 in Katsuno v The Queen (the jury vetting case), all of the Justices proceeded by reference to the question of whether there was a fundamental failure to observe the requirements of the criminal process here. Thus the majority said of the above decisions in Maher and Johns:[47]
35. At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher, they are concerned with “failure to observe the requirements of the criminal process in a fundamental respect”, of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect. [Emphasis added]
[47] (1999) 199 CLR 40, 60 (Gaudron, Gummow and Callinan JJ). The appeal was dismissed by a majority of three to two.
The present case
The point of the above discussion is that there is something of a spectrum of errors of law. At a high level, one may encounter error of law contravening fundamental common law principles; other errors of law may be seen to repose at much lower levels of seriousness. In the present case, it would appear obvious that, if there is error of law at all, its seriousness is hardly comparable with the errors in Kirk. But, of course, this is only one factor to be taken into account. In assessing whether jurisdictional error occurred in the District Court review process in the present case, it is necessary to consider the following matters:
-The structure of the minor civil action jurisdiction;
-The purpose of the minor civil action jurisdiction;
-The “equity, good conscience and no technicalities” formulation;
-The movement towards an inquisitorial system;
-The inter-relationship between a trial in the Magistrates Court and District Court review proceedings;
-The material placed before this Court concerning the District Court review;
-The nature and seriousness of the error said to have been made.
The structure of the minor civil action jurisdiction
Section 38(1) of the Act provides as to the trials in the Magistrates Court of minor civil actions as follows:
(1) The following provisions are applicable to the trial of the minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)    the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Section 38(6) of the Act provides that the District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter. Section 38(7) provides thus:
(7) The following provisions apply to such a review by the District Court:
(a) subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may –
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and –
(A)substitute a judgment that the Court considers appropriate, or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Ordinarily, the parties are not entitled to be represented by a legal practitioner at trial or on a District Court review.[48] There is no appeal from the District Court Review in that s 38(8) and (9) provide:
(8) A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
[48] The matter is governed by ss 38(4), 38(7)(a) and 38(7)(ab) of the Act.
The structure of the minor civil action jurisdiction
In Project Blue Sky v Australian Broadcasting Authority,[49] the High Court was concerned with what was said to be an act done in breach of an express condition regulating the exercise of a power under statute (the Broadcasting Services Act 1992 (Cth)), with the consequent well-known examination of the old mandatory/directory distinction.
[49] (1998) 194 CLR 355.
Here, the defendant contends that the Judge contravened s 38(7)(e) of the Act and that this was jurisdictional error. The opposing position is that the cumulative effect of the relevant factors indicates that any error as may have occurred was within the degree of error authorised by the Act – the jurisdiction to go wrong. It is in that context that the following well-known passage in the plurality judgment (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky is of assistance:[50]
91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. [Citations omitted]
[50] (1998) 194 CLR 355, 388-389.
The Local and District Criminal Courts Act Amendment Bill, which introduced the minor civil action jurisdiction (then known as a “small claim”), is notable for the clarity of the second reading speech by the former Chief Justice, the late Mr LJ King QC (then Attorney‑General) in 1974 in describing the purpose and rationale of the new minor civil action jurisdiction. He said:[51]
However, the position is that the average person who has a complaint is generally overawed by the prospect of taking court action in the ordinary way with its uncertainty and likely expense and the possibility of lengthy delay before any determination is made. It is clear that people with sound legal claims are not having them heard because the amount involved is not great enough to justify the cost of litigation in the ordinary way. Our system of administration of justice is designed to sift carefully truth from falsehood, sound reasoning from fallacious reasoning, right from wrong. This is admirable and necessary. But it is too time-consuming, and therefore expensive, to be a satisfactory way of dealing with small claims. Solicitors are obliged to advise their clients with small claims against going to court and they do not, in practice, go to court. Much the same is true for other kinds of dispute where the sum of money or the injuries are too small to justify the costs of litigation: a dispute with a landlord concerning repayment of a security bond, for example, a claim for arrears of wages where the claimant has no trade union, or a claim for minor damages to a car where the claimant does not have full insurance or does not want to lose his no-claim bonus by involving his insurance company.
Fear of courts no doubt plays a great part in discouraging people from using them. But the overriding discouragement – the thing that prevents the most fearless litigant from litigating – is expense. The expense lies not in the court fees but in the fees payable to solicitors. The winner, of course, recovers a part of his costs from the loser, though not necessarily enough to meet his full expenses. But, even if full costs were recoverable by the winner, no case is so absolutely cast iron that the average small claimant would be prepared to disregard the risk of losing and, therefore, of having to pay out in costs to the other side and his solicitor a sum that might be twice or three times the size of his claim.
If, therefore, persons with small claims need to have the opportunity of bringing them to court, it is necessary to devise a nice simple system, admittedly second best and admittedly less thorough than is necessary for more important and complex matters, but for those very reasons less expensive. It is necessary to have procedures for small claims in which some of the rules and protections which one legal system provides are sacrificed to the necessity of relating the cost to the amount involved in the case. [Emphasis added]
[51] South Australia, Parliamentary Debates, House of Assembly, 12 September 1974, 921-922 (the Honourable Len King QC, Attorney-General).

To adopt words from Project Blue Sky, it is clear that a legislative purpose can here be “ascertained by reference to the language of the statute, its subject matter and objects”.[52] Here, overcoming the average person’s innate fear of becoming trapped in protracted, expensive litigation was very much to the forefront; the spectre of ready resort to Judicial Review remedies, traditionally an area where lawyers are greatly needed and are paid accordingly, would appear to be highly antithetical to the rationale of the legislation, namely that it “is necessary to have procedures for small claims in which some of the rules and protections which one legal system provides are sacrificed to the necessity of relating the cost to the amount involved in the case.”[53]
[52] (1998) 194 CLR 355, 389 [91] (McHugh, Gummow, Kirby and Hayne JJ).
[53] South Australia, Parliamentary Debates, House of Assembly, 12 September 1974, 922 (the Honourable Len King QC, Attorney-General).
The “equity, good conscience and no technicalities” formulation
An essential part of this legislation is the “equity, good conscience and no technicalities” formulations applying to the Magistrates Court (s 38(1)(f)) and to the District Court (s 38(7)(e)). Such provisions have a long history and the degree to which emphasis is to be placed on opposing considerations has waxed and waned. As examples only, I refer to the following two formulations. In Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd, Olsson J stated:[54]
[W]hat must firmly be borne in mind is that what is appropriate in a particular case must derive from a consideration of the nature of the issues involved and, where appropriate, the clear intendment of any statute applicable. These may patently demand an application of strict principles of law or of a statute either because the notion of equity, good conscience or the substantial merits of the case unerringly points to the need or desirability of so doing, or the statute expressly or impliedly mandates such an approach. …
However, in certain types of case … there remains scope for the court … to adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. If it were otherwise then a mandate to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities …” would have little or no room to operate at all.[55]
[54] (1994) 63 SASR 434, 442.
[55] In Seers v The Exhibition Centre Pty Ltd (2009) 232 FLR 415, 437-438 [133], Refshauge J reproduced this passage with approval.
And in Griggs v Noris Group of Companies, White J stated:[56]
[56] (2006) 94 SASR 126, 137. Perry J agreed.
31. A stipulation that a decision-maker is to act in accordance with equity and good conscience and the substantial merits of the case is not uncommon. Such a stipulation, or an equivalent, appears in many statutes vesting powers in a court, tribunal or a statutory decision-maker. The expression has its origins in the legislation in the 16th century establishing the Courts of Requests and Courts of Conscience. The reference to “equity” is not a reference to the equitable principles developed by the English Courts of Chancery, but a reference to the good sense and natural justice of the matter. At times, it has been held that the expression means that the decision-maker is empowered to do whatever it might think appropriate to achieve fairness between the litigants. For example, in Colliery Employees' Federation v Northern Proprietors' Association Cohen J said:
… the words “equity and good conscience” leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man …
32. However, it is now accepted that the meaning of the expression “equity and good conscience and the substantial merits of the case” varies according to the context in which it is used. In particular, it is necessary to have regard to the nature of the decision-maker and the nature of the decision to be made. In Santos Ltd v Saunders Legoe J said, in respect of the then comparable provision in s 88(a) of the Workers Rehabilitation and Compensation Act 1986 (SA):
Similar provisions appear in legislation relating to the setting up of administrative tribunals in a number of different Acts in recent times. No doubt such provision is to be adapted to the particular type of tribunal which is directed to proceed in that way. The nature of the application under consideration in the proceedings will likewise vary from case to case.
Likewise, in Qantas Airways Ltd v Gubbins, Gleeson CJ and Handley JA said:
The words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found …” [Citations omitted]
The movement towards an inquisitorial system
In Harradine v District Court of South Australia, Blue J said as to the nature of the minor civil claims jurisdiction:[57]
46. By referring to an “inquiry by the Court” in contradistinction to an “adversarial contest between the parties”, Parliament was invoking the distinction between an inquisitorial and adversary system. As understood in Australia as at 1991, an inquisitorial system was used in civil and criminal matters in various countries in Europe (including France, Germany and Italy).
47. Under an inquisitorial model, the judge performs an active role in determining the issues, witnesses and scope of the evidence, while under an adversarial model the parties determine these matters.[58] Under an adversarial model, one party calls and examines a witness and the other party cross‑examines the witness. Under an inquisitorial model, witnesses tell their own story in narrative form and then the principal questioning is undertaken by the judge. The parties are then permitted to ask questions of the witness through the judge in a supplementary manner (the parties invite the judge to put specific questions or, more frequently, the judge directs the witness simply to answer the question as formulated by the party or permits the party to put the question directly to the witness).[59]
48. In a matter which turns on which of two competing witnesses is accepted as telling the truth (about a fact of which they both give direct evidence), both models involve each witness’s evidence being tested by questioning. The difference is the identity of the (principal) questioner.
49. The provisions in section 38(1) of the Act evince a general intention that a magistrate is to proceed broadly in accordance with the inquisitorial model as opposed to the adversarial model. In particular, a magistrate is obliged to inquire actively into the facts and issues.
The inter-relationship between a trial in the Magistrates Court and District Court review proceedings
[57] (2012) 280 LSJS 572.
[58] W Zeidler, “Evaluation of the Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure” (1981) 55 ALJ 390; G E P Brouwer, “Inquisitorial and Adversary Procedures – a Comparative Analysis” (1981) 55 ALR 207; G L Certoma, “The Accusatory System v. The Inquisitorial System: Procedural Truth v. Fact?” (1982) 56 ALJ 288; G Osbourne, “Inquisitorial Procedure in the Administrative Appeals Tribunal – A Comparative Perspective” (1982) 13 F L Rev 150.
[59] Zeidler at 396; Brouwer at 215; Certoma at 289.
In Harradine, Blue J commented on the inter-relationship between original proceedings in the Magistrates Court and District Court review proceedings thus:[60]
52. It can be seen that several of the provisions which apply to a trial under section 38(1) also apply to a review under section 38(7): the court is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; the court is not bound by the rules of evidence; and generally a party is not to be represented by a legal practitioner. On a review of a judgment of a magistrate following trial, the District Court does not have the option of remitting the matter back to the Magistrates Court for rehearing but must, if it rescinds a magistrate’s judgment, substitute its own judgment.
53. The provisions of section 38(7) in the context of section 38 as a whole and in particular section 38(1) suggest that the following principles apply to a review by a District Court judge of a minor civil action.
1. The review is not in the nature of an appeal stricto sensu.
2. The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3. The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4. The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5. If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter. [Citations omitted]
[60] (2012) 280 LSJS 572.
The material placed before this Court concerning the District Court review
On the hearing of the application for summary dismissal on 5 July 2019, I received the affidavit with exhibits of Ms Justice sworn 8 May 2019, because jurisdictional error is here asserted.[61] That material refers to a dispute ongoing over several years concerning the defendant’s trees and includes inter alia:
-arborists’ reports and copious photographs from both sides;
-correspondence and submissions from the plaintiffs setting out in great detail their complaints concerning the conduct of the defendant and her daughter over several years and their making of various offers such as: sharing the cost of pruning at 50%; assistance to remove the material once pruned; and onsite mediation;
-correspondence and submissions from the defendant’s daughter and Ms Justice (the defendant’s granddaughter) disputing the plaintiffs’ assertions and rejecting the offers.
[61] See footnote 3 above.
The Judge heard full evidence and submissions from both sides as to the long history of the relationship between the neighbours and their continuing quarrel concerning the trees growing on the defendant’s land. Inter alia, Ms Justice actively disputed that the plaintiff had actually paid the contractor’s invoice for pruning claimed upon and the plaintiff was required to formally prove such payment (which he did to the Judge’s satisfaction).
At the end of the hearing, just before judgment was reserved, Ms Justice somewhat belatedly asked the Judge if she could supply legal authority on the topic of the extent to which a plaintiff is entitled to recover fees he had paid to a contractor to lop branches. His Honour agreed to receive such material and reserved judgment. On 8 October 2018, Ms Justice sent by email copies of the decision of a Victorian Supreme Court Judge in City of Richmond v Scantelbury[62] (Scantelbury) and a note in relation to that decision.
[62] [1991] 2 VR 38.
It is to be remembered that while abatement of a nuisance through a contractor’s pruning may obviate damages from then onwards, it clearly cannot affect damages due to the plaintiffs referable to what had happened before the abatement.[63] On the version of the plaintiffs on the Review, they had suffered considerable damage and inconvenience over several years in addition to, and quite apart from, the matter of the amount of $1,650 later spent in contractor’s fees.
[63] "Abatement means the summary removal or remedy of a nuisance by the party injured without having recourse to legal proceedings ... Its exercise destroys any cause of action in respect of the nuisance except for damages in respect of harm sustained before the abatement": LexisNexis, Halsbury’s Laws of England, vol 78 (at June 2018) Nuisance, ‘3 Remedies’ 208 [214].
However, the linch-pin of the defendant’s argument has now become this decision of City of Richmond v Scantelbury.[64] The complainants there claimed for damages for injuries suffered to their home resulting from encroachment of roots of elm trees. The claim was founded in nuisance. The Magistrate upheld it and ordered the defendant to pay the total sum of $19,507 damages together with $262 interest and $6,464 costs. The defendants obtained an order nisi to review the order on two grounds and the return of the order came before Kaye J.
[64] [1991] 2 VR 38.
The first ground was that the defendants contended that the Magistrate had erred in finding for the plaintiffs at all and that the Magistrate should have made no order for damages. His Honour rejected this ground.[65]
[65] [1991] 2 VR 38, 47.
The second (alternative) ground was that the Magistrate had erred in awarding one particular head of damages in the amount of $6,040 (contended to be “the cost of abatement”[66]) and that the Magistrate’s award should be reduced by that amount. It was in this context that Kaye J made the comments upon which the present defendant seeks to rely. His Honour stated:[67]
The complaint made by the defendant under the second ground of the order nisi was that the sum of $6040 which formed part of the total damages awarded to the complainant was wrongly included in the damages.
It was submitted on behalf of the defendant that as a matter of law the complainants were not entitled to recover by way of damages the costs of abating the nuisance created by the elm trees, and that the sum of $6,040 was the cost of abatement.
The soundness of this submission depended on whether the amount of $6040 was the cost incurred by the complainants, or for which they were liable to abate the nuisance. "Abatement means the summary removal or remedy of a nuisance by the party injured without having recourse to legal proceedings ... its exercise destroys any cause of action in respect of the nuisance except for damages in respect of harm sustained before the abatement": Halsbury, 4th ed., vol. 34, p. 126, para 349.
I respectfully adopt the statement of current law concerning abatement expressed by Wood J. in Young v. Wheeler (1987) Aust Torts Reports 68,966, at p. 68,971 that: "A person who has taken steps to abate a nuisance is unable to recover the costs of the abatement as damages, but possibly may be able to recover damages for any harm suffered before the abatement."
The act of abating a nuisance has the effect of removing it, Traian v Ware [1957] VR 200, at 207, per Martin J, so that thereafter the claimant is not entitled to damages for nuisance.
[66] [1991] 2 VR 38, 47 (l48).
[67] [1991] 2 VR 38.
However, all of this was clearly obiter to the decision because his Honour in fact found that the defendants had not “abated” the nuisance at all, and he therefore discharged the order nisi, the plaintiff retaining the original award of damages in full. His Honour stated:[68]
By the particulars of special damages adjoined to para7 of their statement of claim, the complainants claimed as damages, inter alia, "the costs of permanent rectification being construction of a vertical barrier and the inclusion of auger holes." Evidence in support of this claim for those items was given by both Mr Setford and Dr Holland. Mr Setfords evidence concerning the construction of a concrete barrier was also capable of being used as evidence of what could have been done by the defendant to averting encroachment by the tree roots under the house, as well as the costs of construction of the barrier. Dr Holland verified that the damage occasioned by the tree root encroachments could have been rectified by the construction of a concrete barrier along the boundary of the complainants property for the retention of moisture in the soil under the house and for the exclusion of tree roots. The procedure necessary for repairs of damage to the house which he described included, after the erection of the concrete barrier, the boring of holes in the soil into which water would be added until the moisture content had been restored, and the placement of a barrier paving over the soil to retain the added moisture. Dr Holland said that after those works were completed the task of repairing and painting the house could be undertaken.
Dr Hollands evidence concerning the concrete barrier and procedures to the soil, together with Mr Setfords evidence, was therefore relevant to the cost of repairs to rectify the damage to the house, and to the measure of the complainants damage suffered by injury to the property. There was no evidence that the concrete barrier, or any other remedial work, was performed by them before the commencement of their action. Consequently they had not taken any steps to abate the nuisance, and therefore were entitled to be compensated by way of damages for the cost to be incurred by them in the future for the construction of a concrete barrier. The complainants not having abated the nuisance, the second ground of the order nisi was not made out.
For these reasons the order nisi will be discharged with costs.
[68] [1991] 2 VR 38, 48.
The nature and seriousness of the error said to have been made by Judge Rice
In the written submissions, the defendant refers to paragraphs [21] to [22] of Judge Rice’s reasons (reproduced above at paragraph [4]) and submits thus:
36. Judge Rice was, with respect, wrong in law. His Honour was, indeed, bound to follow the judgment of Kaye J. As the plurality explained in Lipohar v The Queen, [defendant’s footnote 38: “(1999) 200 CLR 485”] there is but one common law of Australia, [Defendant’s footnote 39: “(1999) 200 CLR 485 at [43] per Gaudron, Gummow and Hayne JJ.”] and although each State maintains its own judicial hierarchy, it does not allow “a State judge bound by the authority of his or her own Full Court or Court of Appeal to conclude that the common law for the State is fixed by that appellate decision. [defendant’s footnote 40: “(1999) 200 CLR 485 at [50] per Gaudron, Gummow and Hayne JJ.”]
…
41. Further, to the extent that Judge Rice emphasised the phrase in s 38(7)(e) as a basis for justifying his Honour’s departure from that principle of law, Judge Rice was wrong. As the cases canvassed above show, this provision neither authorised nor permits a Judge hearing and determining a review from acting otherwise than applying the substantive rules of law when deciding a case. Having determined that the Second Respondent’s cause of action of action was one in private nuisance, s 38(7)(e) did not give Judge Rice licence to turn his back to the substantive law that governed such causes of action. To the extent Judge Rice did so, he was wrong.
42. This Court is not permitted to enter upon the merits of the decision of the SADC in this proceeding. What is stated above is sufficient to demonstrate the jurisdictional error that infects the SADC Orders and requires that they bet set aside. It is neither appropriate nor necessary to remark upon the reasoning Judge Rice at [23] of the SADC Reasons, except to observe that, by the reasoning, his Honour demonstrates how the misconstruction of the MC Act has caused the SADC to misconceive the nature of the function it was to perform in conducting the review.
43. For the foregoing reasons, the SADC committed jurisdictional error insofar as it asked itself the wrong question, made erroneous findings, and reached a mistaken conclusion. It did so because, when deciding the review, it did not apply the substantive rules of law to the matter before it.

Those submissions should be rejected. As noted above, the relevant remarks by Kaye J were no more than obiter dicta. But even if they had been ratio, the defendant’s submission is not borne out by paragraphs [43] and [50] in Lipohar v The Queen (or by any other passage).[69] Those paragraphs speak in terms of decisions of intermediate Courts of appeal in another jurisdiction (rather than decisions of single Judges) and the position articulated was that the High Court would not be restricted in declaring the common law for the whole of Australia by different lines of authority in different States, no matter how deeply entrenched.
[69] (1999) 200 CLR 485.
The relevant authority (not cited by the defendant) is actually the following statement in the more recent judgment of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd:[70]
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong[71]. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.
[70] (2007) 230 CLR 89, 151-152 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
[71] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
It suffices to say that Scantelbury is not a decision of an intermediate appellate court and while a District Court Judge will always pay appropriate respect to a decision of an interstate Supreme Court Judge, he or she is not bound to follow it. I merely observe that if this had been an appeal (which assuredly it is not), I have some doubt as to whether I would follow or apply the obiter dicta in Scantelbury in the very different context of the legal and factual matrices in the present case. It is unnecessary to say more.
Conclusion as to Ground (a) of the Statement of Grounds
Taking all of the evidence tendered by the defendant before this Court at its highest in favour of the defendant, I conclude that there is no basis upon which it can be demonstrated that the Judge committed jurisdictional error. It was for the Judge to have regard to the precepts of the legislation and to resolve all of this long running dispute in an efficient manner, as quickly as possible, with as much finality as possible. If the Judge did err in not giving full force and effect to the judgment in Scantelbury, such error is nevertheless ‘authorised’ rather than ‘unauthorised’ having regard to the considerations referred to above.
Ground (b) of the Statement of Grounds
This was withdrawn.
Ground (c) of the Statement of Grounds
Ground (c) (somewhat quaintly referred to as “illogicity”) was pressed only faintly in the written submissions thus:
Ground (c) – Illogicity or unreasonableness
46. Ground 3 is raised on the basis that the SADC Decision was illogical or unreasonable to the extent that a reasonable decision-maker would not have made such a decision, on the grounds that and to the extent that the SADC Decision was, for the reasons stated with respect to Ground 1, contrary to the applicable law. This is not a case in which “reasonable minds might differ”. There was but one logical conclusion; that is, on the Second Respondents’ case and having regard to the evidence adduced on their behalf, the head of damages that they sought to recover in prosecution of their action in private nuisance was not available to them at law.
With respect, this would appear to be no more than a rephrasing of Ground (a) (but relying upon the same matters); or else an attempt to dress up what might otherwise be a ground of appeal (and therefore unavailable) as “jurisdictional error”. If, as I consider to be the position, any error that the Judge did commit here was within jurisdiction, my conclusion is the same as that pertaining to Ground (a), namely that there is no reasonable basis upon which it can be demonstrated that the Judge committed jurisdictional error.
Disposition
I summarily dismiss the Judicial Review proceedings. I will hear the parties on any application for costs by the plaintiffs (the present respondents) concerning the Judicial Review proceedings.