Police v Lymberopoulos - [2007] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE & THE STATE OF SOUTH AUSTRALIA v LYMBEROPOULOS & ORS
[2007] SASC 247
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
4 July 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - CONSEQUENCE OF FAILURE TO ACCORD PROCEDURAL FAIRNESS
Appeal - certiorari - jurisdictional error - Magistrate disposed of proceedings without observing requirements of procedural fairness - review by statutory process of Expiation of Offences Act 1996 (SA) - whether error of the Magistrate constitutes jurisdictional error - whether order in the nature of certiorari available if error of Magistrate does not amount to jurisdictional error - whether Supreme Court has power to quash decision of Magistrates Court.
Held: Order in the nature of certiorari available to correct denial of procedural fairness by inferior court - appeal dismissed.
Expiation of Offences Act 1996 (SA) ss 4, 7, 8, 8A, 9, 13, 14; Criminal Law (Sentencing) Act 1988 (SA); Magistrates Court Act 1991 (SA) s 6; Supreme Court Rules 1987 (SA) rr 98, 200; Supreme Court Act 1935 (SA) s 17; Workers Rehabilitation and Compensation Act 1986 (SA) s 881; Australian Constitution s 75(v); Coroner's Act 1920 (WA) s 7; Child Welfare Act 1939 (NSW); Justices Act 1957 (Vic) s 164; Supreme Court Rules 1947 (SA) o 59; Supreme Court Civil Rules 2006 rr 199-201; Administrative Decisions (Judicial Review) Act 1977 (Cth), referred to.
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Annetts v McCann (1990) 170 CLR 596; J v Lieschke & Ors (1987) 162 CLR 447, applied.
Craig v The State of South Australia (1995) 184 CLR 163; Craig v Workers Compensation Tribunal (2004) 90 SASR 490; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishop's Conference & Anor (2002) 209 CLR 372; Bishop's Conference & Anor (2002) 209 CLR 372; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351; R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800; R v Wandsworth Justices; Ex parte Read [1942] 1 KB 281; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Brand & Hein v Parson [1994] 1 VR 252; Jones v Director of Public Prosecutions (1994) 76 A Crim R 422; Fagioli v Ure (1996) 84 A Crim R 504; Flynn v Director of Public Prosecutions & His Honour Judge Barton Stott County Crt [1998] 1 VR 322; Hall v City of Burnside [2006] SASC 283; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, considered.

POLICE & THE STATE OF SOUTH AUSTRALIA v LYMBEROPOULOS & ORS
[2007] SASC 247
Full Court: Doyle CJ, Bleby and Sulan JJ

DOYLE CJ: The issue raised by this appeal is whether the Supreme Court has the power, in proceedings by way of judicial review, to quash a decision of the Magistrates Court on the ground that the Magistrate who constituted the Court disposed of proceedings before him without observing the requirements of procedural fairness.
The issue arises in the following way.
Mr Lymberopoulos applied to the Magistrates Court for a review of 19 enforcement orders made by the Registrar of the Magistrates Court in respect of expiation notices issued to him in respect of alleged traffic and parking offences.
The review is a statutory process established by s 14(1) of the Expiation of Offences Act 1996 (SA) (“the Expiation Act”).
The Magistrate refused or dismissed the application, and confirmed the enforcement orders made by the Registrar. The Magistrate denied Mr Lymberopoulos a fair hearing. He acted in a peremptory manner.
Mr Lymberopoulos brought an application for judicial review in this Court. Finding that the Magistrate had failed to hear Mr Lymberopoulos in a fair manner, a Judge made an order quashing the Magistrate’s confirmation order.
The Judge held that the denial of procedural fairness was a basis for quashing the decisions, even though the error did not mean that the Magistrate had acted without jurisdiction.
South Australia Police and The State of South Australia were defendants in the proceedings. They have appealed against the decision. Mr Kourakis QC SG, for the appellants, submits that the Magistrate’s error (which is no longer contested) did not deprive the Magistrates Court of jurisdiction over the review applications. He submits that an order quashing the decisions cannot be made unless the Magistrate’s error means that the decision was made without jurisdiction. Accordingly he argues that the appeal should be allowed.
Facts and legislation
A number of matters argued before the Judge have now fallen away. The only issue argued is that identified. In what follows I will ignore the other matters.
The Expiation Act establishes a scheme under which expiation notices can be issued to a person by name or as the owner or driver of a motor vehicle in respect of certain types of alleged offences, including less serious traffic offences and parking offences.
The recipient of a notice can pay the nominated expiation fee, or elect to be prosecuted (that is, deny that he or she committed the alleged offence), or seek a review of the notice on the ground that the alleged offence is trifling or on the ground of hardship: see s 7, s 8, s 8A and s 9.
If the person does none of these things, the authority that issued the expiation notice can forward a certificate with prescribed particulars to the Registrar of the Magistrates Court: s 13(1). The Registrar, without conducting a hearing, can make an enforcement order: s 13(2) and s 13(4). The alleged offender is then taken to have been convicted by the Court on that day of the offence to which the order relates, and the enforcement order is to be taken as an order of the Magistrates Court imposing a fine enforceable in the same way as a fine under the Criminal Law (Sentencing) Act 1988 (SA): s 13(6) of the Expiation Act.
A person against whom an enforcement order has been made may appeal against the conviction in the ordinary way, or may apply to the Magistrates Court for a review of the enforcement order, but cannot do both: s 14(8).
Section 14(3) of the Expiation Act specifies the grounds on which an application can be made to the Magistrates Court. After conducting a review the Court can confirm the enforcement order, vary or revoke the order or make any ancillary order: s 14(4). The decision of the Court is not subject to appeal. Section 14(6) provides as follows:
14(6)A decision of the Court made on a review of an enforcement order is not subject to appeal by the person liable under the order.
Jurisdiction to conduct a review hearing is conferred on the Magistrates Court by s 14(1), which provides as follows:
14(1)Subject to this section, the person liable under an enforcement order may apply to the Court for a review of the order within 30 days of being given notice of the order.
“The Court” is defined by s 4 of the Expiation Act to be the Magistrates Court. Section 6 of The Magistrates Court Act1991 (SA) establishes the Magistrates Court as a court of record.
Mr Lymberopoulos applied to the Magistrates Court for the review of 19 enforcement notices. The circumstances leading up to his application are a little complicated, but can be ignored.
All applications came before a Magistrate on 24 June 2004. They were called on together.
As I have noted, the Judge found that the Magistrate peremptorily dismissed or refused the review applications, without permitting Mr Lymberopoulos to support his grounds for review or to put his submissions. He simply dismissed the applications, saying that a particular ground, which perhaps was at the forefront of the applications, was quite implausible. The Magistrate ignored the fact that Mr Lymberopoulos had other grounds.
The Judge found that in so acting the Magistrate denied Mr Lymberopoulos a fair hearing. He held that there was nothing in the provisions of the Expiation Act to exclude the duty to give Mr Lymberopoulos a fair hearing. In the circumstances, it was not necessary for the Judge to go into any great detail about what fairness required. Clearly enough the Magistrate proceeded in a manner that offended the requirement for a fair hearing, whatever it might be. The Judge’s conclusion in this respect is not now contested.
The Judge granted an extension of time for the institution of the proceedings, and found that there were no grounds for refusing to grant relief in the exercise of his discretion. Those decisions are not now challenged. The Judge ordered that the Magistrate’s decision be quashed, and remitted all but two of the matters to the Magistrates Court for reconsideration.
In relation to the issue raised on appeal, the Judge referred to the well known passage from Craig v The State of South Australia (1995) 184 CLR 163 where the High Court said at 175-176:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”…. (footnotes omitted)
The Judge then said at [34]:
Mr Wait, who appeared for the Police, the State and the CAA, submitted that this Court could only make an order quashing the orders of the Magistrates Court if the denial of procedural fairness (assuming it was established) could be characterised as jurisdictional error. He relied upon Craig v Workers Compensation Tribunal [2004] SASC 410; (2004) 90 SASR 490. I do not accept this submission. First, the passage from Craig v The State of South Australia quoted above makes it plain that a denial of procedural fairness is a distinct ground for the grant of an order of certiorari. Secondly, in Craig v Workers Compensation Tribunal it was necessary for the court to consider whether a denial of procedural fairness amounted to “an excess or want of jurisdiction” because of the presence of a privative clause which prohibited it from interfering on any other ground (Ibid at [57], [81], [83]; 499, 504). That consideration is inapplicable in this case.
It is evident that the Judge made the orders in favour of Mr Lymberopoulos on the basis that although it was not shown that the Magistrate lacked jurisdiction to dismiss the application without conducting a fair hearing, nor that he exceeded his jurisdiction in doing so, the order should be made because of the fact of the denial of a fair hearing. In other words, a failure to accord procedural fairness was a sufficient basis in law for the order to be made, without showing that that was an error that deprived the Magistrates Court of jurisdiction.
Issues on appeal
Mr Kourakis submits that there are two questions that must be addressed. First, does a failure by the Magistrate to afford procedural fairness in the course of conducting the review pursuant to s 14 of the Expiation Act constitute a jurisdictional error? He submits that this question should be answered in the negative. Second, is an order in the nature of certiorari available to quash a decision made without affording procedural fairness to Mr Lymberopoulos if the failure does not amount to a jurisdictional error? Mr Kourakis submits that this question should be answered in the negative.
Dr Churches, counsel for Mr Lymberopoulos, submits that there is only one issue to be addressed. It is whether an order in the nature of certiorari can be made to remedy breaches of applicable rules of natural justice. He submits that that question must be answered in the affirmative. He submits that an order in the nature of certiorari can be made to quash a decision of the Magistrates Court even though a failure to observe the requirements of procedural fairness does not amount to jurisdictional error.
Consideration of submissions
I have identified above the issues argued on appeal. It is convenient to consider the two questions posed by Mr Kourakis in his submissions.
I proceed on the basis that the Magistrate failed to observe applicable requirements of procedural fairness. It is not necessary to examine the content of the requirements in the particular case, because it is common ground that the Magistrate failed to observe them.
The application by Mr Lymberopoulos to the Court is brought under r 98 of the Supreme Court Rules 1987 (SA). Under r 98 the so-called “prerogative writs” are abolished, but in a case in which relief could have been granted by the issue of one of those writs the Court has jurisdiction to make an order in the nature of and having the effect of the remedy which would have been available under the writ.
The jurisdiction that the Court exercises corresponds with the inherent jurisdiction of the English Courts at Westminster, because that is how the jurisdiction of the court is relevantly defined by s 17(2)(a) of the Supreme Court Act 1935 (SA). The scope of the Court’s jurisdiction is, subject to any applicable statute, to be determined by reference to the common law of Australia. In Craig v The State of South Australia the High Court described the jurisdiction of the Court as corresponding with “the Supreme Court’s previous inherent jurisdiction to order the issue of the prerogative writ of certiorari” (footnote omitted): at 174. The High Court said that the writ of certiorari could be directed to a court only if it was an inferior court: at 174. For present purposes the Magistrates Court can be regarded as such a court.
The High Court then summarised the effect of an order in the nature of certiorari being made, and summarised the grounds upon which the order can be made. It did so in the passage from its reasons at 175-176 which is set out above. This Court is bound by that summary.
In its reasons the High Court then turned to consider the nature of “jurisdictional error”. It did so in an extended passage, the gist of which appears from the following passage in Craig v The State of South Australia at 177:
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. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
The Court went on to make it plain that in relation to a court the concept of jurisdictional error is a relatively narrow one. Their Honours drew a distinction between an administrative tribunal and a court for these purposes. They said at 179-180:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the 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.
With that background I begin by considering whether the Magistrate’s failure to accord procedural fairness to Mr Lymberopoulos amounted to a jurisdictional error.
In Craig v Workers Compensation Tribunal [2004] SASC 410; (2004) 90 SASR 490 this Court had to decide whether the Full Bench of the Workers Compensation Tribunal, in proceedings under the Workers Rehabilitation and Compensation Act 1986 (SA), had decided an appeal to it in a manner that involved a failure to accord procedural fairness to Mr Craig, and if it had, whether that error gave rise to an “excess or want of jurisdiction” for the purposes of a privative provision contained in s 88I of the Act. I reviewed the case law to that time and I came to the following conclusion:
[59]Recent High Court authority indicates that a denial of procedural fairness by a decision-maker acting under a statute, who is required to decide issues of fact and law and to make a finding that directly affects the rights or interests of individuals, will ordinarily mean that the decision is made in excess of jurisdiction or with want of jurisdiction in the sense necessary to attract the remedies available under s 75(v) of the Constitution: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 (CLR) 82 per Gleeson CJ, at [41] per Gaudron and Gummow JJ, at [104] per McHugh J, at [142] per Kirby J, at [169]-[171] per Hayne J, at [216] per Callinan J; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 per Gleeson CJ, at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[60]These judicial observations were made with reference to a statutory decision-maker that was not a court. They indicate that such a decision-maker is likely (subject to the provisions of the relevant statute) to exceed jurisdiction by denying procedural fairness.
[61]This Court remains bound by the High Court decision in Craig v The State of South Australia (1995) 184 CLR 163. It is unnecessary to refer to the facts of that case. The decision of the High Court in that case establishes that when the decision-maker is a court, the ambit of jurisdictional error is likely to be narrower than in the case of a statutory decision-maker that is not a court. In Craig the court made the point that certiorari, at least, was available to correct errors that did not go to jurisdiction …
For this reason, in considering whether an error gives rise to an excess or want of jurisdiction, it is necessary to bear in mind that decisions in which certiorari has been granted to correct an error are not necessarily decisions in which the court granting certiorari has identified an error going to jurisdiction.
In the omitted passage I set out the observations of the High Court in Craig v The State of South Australia at 175-176, already set out above.

The decision of the High Court in Craig v The State of South Australia requires this Court to observe the distinction between an error depriving the Magistrates Court of jurisdiction, and an error that does not.
In the case of a statutory decision maker, not a court, failure to comply with applicable requirements of procedural fairness (that is, requirements of procedural fairness that are required by the statute, or common law requirements that are not displaced by the statute) can and often will amount to a jurisdictional error. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Gaudron and Gummow JJ said at [41]:
[41]It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.
Gleeson CJ agreed with what they said at [5]. A similar view was expressed by Kirby J at [142], by Hayne J at [170]-[171] and by Callinan J at [210]. I set out what Hayne J said at [171]:
[171]The better view may be that the conclusion I have expressed represents no development of common law principles. The power to grant prohibition for denial of procedural fairness, in cases within s 75(v) jurisdiction, has often been assumed. As Gaudron and Gummow JJ point out in their joint reasons, there are several statements to be found in both nineteenth and twentieth century decisions in England and Australia suggesting that prohibition will go in at least some cases of denial of procedural fairness. In stating the opinion of the judges in answer to the questions posed by the House of Lords in the well-known case of Dimes v Grand Junction Canal, Parke B entertained no doubt about the matter, saying that had the proceeding then in question been a proceeding in an inferior court, "prohibition would be granted ... upon an allegation that the presiding Judge of the court was interested in the suit". (footnotes omitted)
I do not understand their Honours to be developing a notion of jurisdictional error that is limited to cases in which the jurisdiction of the court under s 75(v) of the Constitution is invoked.
In Re McBain; Ex parte Australian Catholic Bishop’s Conference & Anor [2002] HCA 16; (2002) 209 CLR 372 at [88]. McHugh J made the point that a denial of natural justice may mean that a court had no jurisdiction to make the order made. At [261] Hayne J, referring to the power of the Court under s 75(v) of the Constitution, said:
[261]… Prohibition will go if there is want of jurisdiction, or if jurisdiction is exceeded. Prohibition will go if a federal superior court acts in breach of the rules of procedural fairness.
In Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Gleeson CJ said at [25]:
Subject to any such statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision making power, and jurisdictional error.
At [83] Gaudron, McHugh, Gummow, Kirby and Hayne JJ clearly proceeded on the basis that a denial of procedural fairness by a statutory decision maker resulted in jurisdictional error.
The same can be said of the reasons of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88.
But the observations of the High Court in Craig v The State of South Australia require careful consideration of the position when the decision maker is a court, as here. It will be noted that in McBain in the passage referred to above McHugh J referred to a court, but in the other passages to which I have referred, the reference was to a statutory decision maker not a court.
Mr Kourakis submits that a failure by the Magistrates Court to comply with applicable requirements or procedural fairness does not give rise to a jurisdictional error. Although Dr Churches did not accept Mr Kourakis’s submission on this point, he did not argue in any detail that the failure to comply with the requirements of procedural fairness did result in jurisdictional error. He was content to rely on his submissions supporting an affirmative answer to the second question. The Court has not had the benefit of full argument on the point.
Nevertheless, as the case may go further, it is appropriate to deal with the issue.
I am not persuaded that the failure to accord procedural fairness, that is the failure to hear Mr Lymberopoulos fairly, has the effect of making the Magistrate’s decision one that is made without jurisdiction, or in excess of jurisdiction.
The failure to accord procedural fairness did not cause the Magistrate to make a decision of a kind beyond his powers. He did not do something that he lacked authority to do. There is no indication that he misapprehended the nature of his function or power. He did not disregard any provision of the Expiation Act. No doubt Parliament assumed and expected that when the Magistrates Court exercised jurisdiction under the Expiation Act it would act in accordance with the requirements of procedural fairness. It does not follow that this expectation is a condition of the vesting or exercise of the jurisdiction. The requirement of procedural fairness arises, by implication, from the fact that the jurisdiction under the Expiation Act is conferred on a court, and from the fact that there is nothing in the Expiation Act that displaces the requirement to accord procedural fairness.
Deciding whether the error is a jurisdictional error is a difficult question, as has often been remarked. I had to consider a very similar submission in Craig v The Workers Compensation Tribunal. I expressed my conclusion as follows:
[71]I would answer the questions that I posed by saying that I am satisfied that the Full Bench of the Tribunal is a court, but whether or not it is a court, I am satisfied that Parliament has conferred on it the task of deciding appeals of a certain type, expecting it to proceed in a certain fashion, but not conditioning the vesting of jurisdiction upon any such expectation. As well, the Full Bench has been established as a body to decide questions of law and questions of fact, and ordinarily (always subject to the type of error and its consequences) an error in either respect will not deprive the Full Bench of jurisdiction.
[72]The error in the present case was an error made in the course of disposing of the matter which the Full Bench had jurisdiction to dispose of, and related only to the manner in which the Full Bench discharged its function. The circumstances do not fit the criteria identified in Craig as indicating an excess of jurisdiction by a court or court-like decision-maker.
[73]Putting things a little differently, the Full Bench erred by departing from a rule that governs the manner in which it exercises its power. But so does any court, for example, if bound by the rules of evidence, when it admits inadmissible evidence. To refer to such an error, or the error made in the present case, as procedural, is not to deny its significance. But this also suggests that the error is one made within jurisdiction.
I reach the same conclusion here. The error of the Magistrate was made within jurisdiction.
I turn now to the second question.
I conclude that a failure to comply with applicable requirements of procedural fairness is a basis for the making of an order in the nature of certiorari, even though the error made is not to be categorized as a jurisdictional error.
First of all, by quashing the decision because of the manner in which it was made, the Court does not enter upon the merits of the review application by Mr Lymberopoulos. That remains to be decided by the Magistrates Court.
A fundamental principle underlying the powers of a court in judicial review proceedings is that the court is enforcing a requirement of legality. The meaning of that proposition becomes clearer when one adds that the court does not engage in merits review, subject to the possibly anomalous exception of an order quashing a decision of a court for error of law on the face of the record. This is the point being made by the High Court in Craig v The State of South Australia in the passage at 175-176 set out above. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive …
The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. …
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.
That is a sufficient statement of the relevant general principle.
As I have said, by quashing the Magistrate’s decision this Court does not cross the line that is identified in these authorities.
Second, the requirement to accord procedural fairness can be categorized as a restriction on the exercise of the power conferred on the Magistrates Court. Although the requirement is not a condition of jurisdiction, it is analogous to those “imperative duties” and “inviolable limitations” the contravention of which results in jurisdictional error by a statutory decision maker: Plaintiff S157/2002 at [34] Gleeson CJ and at [76] Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Third, turning to authority, I am influenced by the manner in which the High Court expressed itself in Craig v The State of South Australia. I refer in particular to the passage at 175-176 which sets out the grounds for the making of an order in the nature of certiorari. The passage is set out above. As can be seen, the Court referred separately to jurisdictional error and to a failure to observe “some applicable requirement of procedural fairness”. If a failure to observe an applicable requirement of procedural fairness is no more than a form of jurisdictional error, as Mr Kourakis contends, it is difficult to understand why it was separately mentioned, let alone why it is placed on an equal footing with the other quite distinct grounds for the making of an order. This suggests that it is a free standing ground.
Mr Kourakis argues that the two cases cited, in an omitted footnote to the reference to procedural fairness in Craig v The State of South Australia, do not support the proposition that an order in the nature of certiorari may be made for a non-jurisdictional breach of the requirements of procedural fairness. The first answer to this submission is that the duty of this Court is to apply the reasons of the High Court, and in doing so it is appropriate to exercise some care in qualifying what is said by reference to deductions from cases cited by way of footnote. In any event, the first of the two cases cited is Stollery v Greyhound Racing Control Board (1972) 128 CLR 509. It is correct, as Mr Kourakis points out, that the decision in that case related to a statutory board and not to a court. But it is apparent from the reasons of the High Court that the court drew on a principle that it treated as applicable to a court, and that it treated a failure to comply with the requirements of natural justice (as they were termed) as a basis for an order for certiorari. Reliance on that decision provides no basis for qualifying the apparent effect of the reasons in Craig v The State of South Australia. The Court in Stollery says nothing about jurisdictional error. The second case referred to is Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. It appears to me to be cited to make the point that an order can be made in respect of the exercise of powers other than statutory powers.
The fourth reason for my conclusion is that there are observations by some members of the High Court in some decisions that are consistent with the conclusion that I have reached.
In The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351 Mason J said at 374, when considering the scope of the power conferred by s 75(v) of the Constitution, that:
Prohibition will issue for jurisdictional error and denial of natural justice, but not for non-jurisdictional error of law.
He was referring there to the issue of prohibition to a superior court of record.
In Aala, as I have already said, Gaudron and Gummow JJ at [41] (set out above) said that a failure to accord procedural fairness by an officer of the Commonwealth exercising a statutory power gave rise to an excess of jurisdiction for the purposes of prohibition under s 75(v) of the Constitution. They then added at [42]:
[42]Different considerations arise where the Commonwealth officer is a member of a federal court. There, procedural fairness is a concomitant of the vesting of the judicial power of the Commonwealth in that federal court and s 75(v) operates to maintain s 71 of the Constitution.
I take their Honours to mean that in the case of a federal court prohibition will issue to maintain the requirement of procedural fairness. However, I accept that this passage may be open to other interpretations. In Aala at [171], Hayne J said that the power to grant prohibition for denial of procedural fairness had often been assumed, and refers to a number of cases including R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, where prohibition issued to a judge of the Family Court on the grounds of bias.
As well, there is a passage in the reasons of Hayne J in Aala at [169] that suggests that he treated a failure to accord procedural fairness as a basis for an order in the nature of prohibition. He said:
[169]Casting the question as whether a want of procedural fairness is an error within or without jurisdiction may appear to invite attention only to the content of the word "jurisdiction" or the content of the phrase "jurisdictional error". An inquiry confined in that way would be too narrow. Once it is accepted that the Constitution did not intend to freeze at 1900 the development of the common law regulating the issue of any of the prerogative writs, the question whether a departure from the requirements of procedural fairness will ground the issue of prohibition depends upon the closeness of the analogy between that departure and other errors that will ground the writ. In that regard, it is important to recognise that the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended.
I do not suggest that it is clear that this is what he meant, but it is arguable.
In McBain at [88], McHugh J referred to the fact that certiorari might issue because a party to proceedings before a court has been denied natural justice, but I acknowledge that he linked that to a lack of jurisdiction.
Fifth, there are three decisions upon which I place reliance.
The first is the decision in Watson, referred to above. In the course of interlocutory proceedings a Judge of the Family Court indicated that he would not accept the evidence of either party at the trial without corroboration. One of the parties applied for a writ of prohibition against the Judge hearing the proceedings further. The order was made by the High Court. The order was able to be made because, although the Family Court is a superior court of record, an order for prohibition could be made under s 75(v) of the Constitution.
The order was made on the basis that there had been a departure from the rules of natural justice because, having regard to the observations by the Judge, it was apparent that the Judge had predetermined the issue of credit, giving rise to an appearance of bias. For present purposes the significance of the decision is that the majority, Barwick CJ, Gibbs, Stephen and Mason JJ, decided that an order for prohibition should be made on the grounds of bias, without suggesting that the finding of bias meant that the Judge lacked jurisdiction, or had made a jurisdictional error. And it is pertinent to note that the rule against bias and the requirement to observe procedural fairness are, together, the two prime examples of the rules of “natural justice” as they were described at the time. There is nothing in the central part of the majority reasons, at 261-263, to suggest that the common law principle that they applied was based on a finding of jurisdictional error.
More significant is the decision in Annetts v McCann (1990) 170 CLR 596. Mr McCann SM was a coroner conducting a coronial inquest into the deaths of two young men, the inquest being conducted under the provisions of the now repealed Coroner’s Act 1920 (WA). The parents of the two young men were represented at the inquest by counsel, who was allowed to question witnesses. The Coroner declined to permit counsel to make a closing address, holding that he had an unfettered discretion to decide who could address him. The parents of one of the boys sought an order for prohibition and mandamus. The Full Court of the Supreme Court of Western Australia declined to make the order. On appeal, the High Court (by majority) made the order.
The West Australian legislation did not establish a Coroner’s Court in terms. However, by s 7 the Coroner had the power, authority and jurisdiction of a coroner in England: at 613. Under the legislation (now repealed) the Coroner could sit with a jury or without a jury. Toohey J, whose summary of the facts and legislative provisions was adopted by the majority, said at 617:
It is true that the court of a coroner has been regarded historically as a court of record … But that is for certain purposes; it remains an inquisitorial body.
It appears that the Coroner was treated as a court like body, although there are obvious differences between the function of a coroner and the function of a court.
The majority (Mason CJ, Deane and McHugh JJ) held that the rules of natural justice were not excluded by the Act, and that the Coroner could not make a finding adverse to the interests of the parents without giving them an opportunity to put submissions. Having established that the refusal to hear counsel for the parents was a breach of the applicable requirements of natural justice, the majority concluded that the Coroner should be prohibited from making a finding until he had reconsidered whether he would hear the parents, and further ordered that the Coroner should reconsider that matter: at 603. It is apparent that the majority proceeded on the basis that orders for prohibition and mandamus could be made because of the failure to comply with the requirements of natural justice. There is no suggestion that the error by the Coroner was treated as a jurisdictional error.

Brennan J and Toohey J dissented, but the basis of their dissent was the fact that the applicants had not established that the Coroner was likely to make a finding adverse to their interests, and furthermore the fact that before the Full Court they had claimed an entitlement to address on any issue at all, not just on matters that might adversely affect their interests as parents of the deceased. That was a right that could not be supported. In his reasons at 604 Brennan J said:
An order prohibiting or compelling an exercise of power is made when the intended exercise of the power or the failure to exercise the power is contrary to law; an order holding a purported exercise of a power to be invalid is made when its purported exercise fails to satisfy a condition governing its validity.
It is to be noted that his Honour does not refer to jurisdictional error, although I acknowledge that his reference to invalidity could be said to imply that.
Watson and Annetts stand as authorities that bind this Court. Each of them, in particular Watson, has been referred to with apparent approval on numerous occasions. They appear to me to stand for the proposition that an exercise of power by an inferior court, made without observing applicable requirements of procedural fairness, can be prevented by an order in the nature of prohibition if the power has not yet been exercised, and can be quashed by an order in the nature of certiorari if the power has been exercised. That is so even though the anticipated error or actual error does not amount to jurisdictional error.
I rely also on the decision of the High Court in J v Lieschke & Ors (1987) 162 CLR 447. That case involved proceedings before a Magistrate under the Child Welfare Act 1939 (NSW). In the proceedings it was alleged that each of five children was a “neglected child”. The children were brought before a court. The Magistrate refused the parents leave to appear. The High Court held that he was in error in doing so. They had a right to be heard. The High Court held that an order in the nature of prohibition should go to the Court prohibiting the further hearing of the matters with respect to each child unless the applicant, the mother of the children, was heard. The failure of the Magistrate to comply with basic requirements of natural justice was treated as a sufficient basis for the making of the order. There is no reference to jurisdictional error.
There are some further cases to which I refer briefly for completeness.
In R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800 there had been an appeal from a decision by a Court of Petty Sessions, refusing to make a maintenance order, to the Court of General Sessions. The Judge constituting the Court of General Sessions made an order in favour of the appellant. Her husband, the respondent to the appeal, then obtained an order nisi for certiorari in the Supreme Court. On the hearing of the order nisi, the Full Court found that the Judge had intervened in the hearing excessively, and unfairly to the husband, and had denied the husband natural justice: Lowe and O’Bryan JJ at 804. The Court held that this entitled the husband to relief by means of certiorari or prohibition. The Court relied upon the decision in R v Wandsworth Justices; Ex parte Read [1942] 1 KB 281, a case of denial of natural justice in court proceedings. There was a privative provision in s 164 of the Justices Act 1957 (Vic). Lowe and O’Bryan JJ held that the order should be made despite this. They said at 806:
In one sense he has not by what he has done tried, heard and determined the appeal and it may in that sense be said the facts disclose a manifest defect of jurisdiction, but at any rate what he has done is analogous to a defect of jurisdiction …
This suggests that their Honours took the view that it was not necessary to establish jurisdictional error. Smith J appears to have been of the same view at 809.
In Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 there was an appeal against a sentence and conviction entered in the Local Court of New South Wales. The appeal lay to the District Court. The appeal was by the offender. The Judge, without indicating any intention to do so, increased the punishment. On an application to the Supreme Court for an order in the nature of certiorari, the Court held that the Judge had denied the applicant procedural fairness in failing to warn him that the Judge was contemplating a more severe punishment that that imposed by the Local Court. It was apparently conceded in argument, and accepted by the Court, that relief in the nature of certiorari could be granted because of a breach of the rules of procedural fairness: at 289 and at 297 Kirby P. In the passage at 289 Kirby P added that the order was made outside jurisdiction. The other members of the Court agreed. A similar approach has been taken in a number of cases raising the same issue in similar circumstances: Brand & Hein v Parson [1994] 1 VR 252; Jones v Director of Public Prosecutions (1994) 76 A Crim R 422 (Court of Appeal, New South Wales); Fagioli v Ure (1996) 84 A Crim R 504 (Supreme Court, Victoria). In these decisions there is no reference to Craig v The State of South Australia, nor to the issues argued before this Court.
Flynn v Director of Public Prosecutions & His Honour Judge Barton Stott County Crt [1998] 1 VR 322 is a case in which an application was made in respect of orders made in proceedings before the County Court of Victoria, the claim for relief being based on errors of law on the face of the record of the County Court, and on a complaint of failure to accord procedural fairness. McDonald J referred to Craig v The State of South Australia and in particular to the passage set out earlier at 175-176. He referred to some of the cases to which I have just referred, and held that he could grant relief in the nature of certiorari if there was a failure to provide procedural fairness: at 334 and 336. He did not suggest that a jurisdictional error need be made out.
These cases provide some support for the conclusion that I have reached, but I recognise that the issue now before the Court does not appear to have been argued, and that the decisions might be based on a finding of jurisdictional error.
For those reasons I conclude that the Judge below was correct. His finding that the Magistrate failed to observe the requirements of procedural fairness is not challenged, and accordingly it was open to him to make an order quashing the Magistrate’s decision.
I add the following observations. Had there been a right of appeal from the Magistrate’s decision, one would expect the complaint that is made by Mr Lymberopoulos to have been made by way of appeal. This Court does not and will not encourage parties to proceedings to come to this Court in proceedings by way of judicial review with a view to interrupting or forestalling proceedings before the court in question. Experience has shown that to do so often results in unnecessary cost and delay. Ordinarily, the Court would exercise its discretion and refuse to make an order by way of judicial review if the proceedings have not been completed, and if there is a right of appeal.
In the present case there is no right of appeal, and these observations have no application.
Conclusion
For those reasons I would dismiss the appeal.
BLEBY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. I merely add a few observations of my own.
The cases which the Chief Justice has comprehensively analysed point to certiorari being available to correct a denial of procedural fairness on the part of an inferior court.
In this State the writs of mandamus, prohibition and certiorari have long been abolished. They were replaced with orders “in the nature of” and “(having) the effect of” those writs.[1] Proceedings were commenced by obtaining an order nisi returnable before a single judge or the Full Court.
[1] Order 59, Supreme Court Rules 1947.
In 1987 the procedure was replaced by what was merely called a summons for judicial review.[2] In the Supreme Court Civil Rules 2006 the procedure is by what is called an action for judicial review.[3]
[2] Rule 98, Supreme Court Rules 1987.
[3] See Rules 199-201, Supreme Court Civil Rules 2006.
At least since 1987 it has been possible to seek declaratory and injunctive relief on a summons for judicial review,[4] although the ability to engage that process cannot be used to overcome time limits for bringing judicial review proceedings.[5] The use of remedies of declaration and injunction as an alternative to judicial review in some cases has become well recognised.[6] Other jurisdictions have enacted codes relating to judicial review[7] where there is no distinction drawn between the basis for or the effect of the common law writs, and where any historic limitations on the operation of those writs ceases to have relevance. I acknowledge, however, that codes of that nature generally relate to review of administrative decisions.
[4] Rule 98.01(3), Supreme Court Rules 1987; Rule 200(7) Supreme Court Civil Rules 2006.
[5] Hall v City of Burnside(2006) 245 LSJS 440, [2006] SASC 283.
[6] See for example Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 143-146, [2000] HCA 5 at [16]-[23]; Project Blue Sky Inc v Australian BroadcastingAuthority (1998) 194 CLR 355 at 393, [1998] HCA 28 at [100]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 231-232, 240-241, [2001] HCA 63 at [60]-[62], [89]-[90].
[7] For example Administrative Decisions (Judicial Review) Act 1977 (Cth).
Given these developments, it is not surprising that areas of doubt in the applicability of the old common law writs might sensibly be resolved in favour of a general ability to correct errors founded on grounds which might generally and appropriately be grouped under headings of “illegality”, “irrationality” and “procedural impropriety”.[8] The latter heading clearly includes denial of procedural fairness, including apprehended bias, and fraud.
[8] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 per Diplock L.
The availability of a remedy by way of judicial review for breach of procedural fairness in respect of an inferior court where there is no right of appeal is particularly apposite. It would be anomalous if it were not so, given that there is a clear non-jurisdictional ground of judicial review available by way of error of law on the face of the record. Observance of the rules of procedural fairness by a court of law is fundamental to the valid exercise of judicial power. Breach of those rules by a court can only undermine confidence in the notions of justice and fairness on which our judicial system is built. In the rare cases where a court of inferior jurisdiction breaches those rules and there is no right of appeal, a remedy by way of judicial review is essential. It must be available unless clearly excluded by statute.
The Solicitor General argued that review for non-jurisdictional error is a form of merits review. Such a review, he argued, does not inquire as to the lawfulness of the decision, but rather inquires as to whether a lawful decision has been mistakenly made. I disagree. Denial of procedural fairness, apprehended bias and fraud all strike at the integrity of the judicial process. They do not challenge the integrity of the decision. The decision may well be the same even if the defect in process is cured. Challenge to a decision on those grounds, even though not amounting to a challenge on jurisdictional grounds, goes to the validity of the decision. It is not a form of merit review. It is that type of injustice, where there is no right of appeal, that judicial review is designed to protect.
SULAN J: I would dismiss the appeal. I agree with the reasons of Doyle CJ.