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[1995] HCA 58
appellant. Appeal allowed. Set aside the order of the Full Court of the Supreme Court of South Australia and in lieu thereof order that the respondent's application for judicial review of the order made by...
Mr Craig could not afford a lawyer for his serious criminal trial. The District Court judge decided, after hearing evidence, that this would make the trial unfair and that it was not Craig's fault he had no lawyer. When the government refused to pay for one, the judge stayed the case until further order. The State asked the Supreme Court to overturn that stay using its special review powers. The Supreme Court did so, saying the judge had made a legal mistake that went to his power. The High Court disagreed. It said that even if the judge got the facts or the law slightly wrong when applying the earlier Dietrich decision, that kind of mistake was inside his normal job as a judge and did not remove his power to decide. It also said the mistake was not visible on the very limited official 'record' that can be looked at for this type of review. The stay therefore stood, the Supreme Court's order was overturned, and the State's review application was dismissed.
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Mr Craig faced three linked charges in the District Court of South Australia: larceny of a motor car, receiving that car knowing it to be stolen, and damaging it by fire causing $8,000 worth of damage. The first two charges were laid in the alternative. Each carried a maximum penalty of between five and eight years' imprisonment. Unable to afford counsel and having been refused legal aid, Mr Craig applied to Judge Russell for an order staying the proceedings until he was provided with representation at public expense.
On 22 June 1993 Judge Russell heard oral evidence from Mr Craig and from a witness from the Legal Services Commission, together with documentary material. He delivered ex tempore reasons the same day. In those reasons he made specific findings that Mr Craig was charged with major indictable offences, was indigent, had been refused legal aid, had no sufficient means to fund representation, had no legal training, suffered a speech impediment, and that his lack of representation was not due to any fault on his part. He concluded that Mr Craig could not receive a fair trial unless properly represented and that, applying the majority approach in Dietrich v The Queen (1992) 177 CLR 292, the proceedings should be adjourned, postponed or stayed until representation became available. Rather than grant an immediate stay, Judge Russell vacated the trial date, fixed a fresh status conference, directed that the Attorney-General be informed, and gave Mr Craig liberty to apply for further orders if representation was not provided within a reasonable time.
The matter was relisted on 28 July 1993 at the Crown's request. Counsel for the Crown informed Judge Russell that the Attorney-General did not intend to make any particular provision for Mr Craig's representation. After an exchange in which Crown counsel conceded that Judge Russell had already ruled that the absence of representation was not Mr Craig's fault, the judge ordered a stay of proceedings until further order. No formal order was drawn up; the only record was a handwritten note on the back of the information, signed by the Clerk of Arraigns, stating "H/H orders a stay of proceeding until further order" and noting that Mr Craig was remanded in custody pending a written bail application. He was later released on bail.
The State of South Australia then commenced proceedings in the Supreme Court under r 98 of the Supreme Court Rules 1987 (SA) seeking an order in the nature of certiorari quashing the stay and an order in the nature of mandamus requiring Judge Russell to try the matter according to law. The Full Court (Matheson and Prior JJ, Olsson J dissenting) granted certiorari. The majority considered that Judge Russell had fallen into jurisdictional error by misconstruing the reference in Dietrich to an accused's inability to obtain representation "through no fault of his own". They pointed to evidence in the transcript, including a letter written by Mr Craig and details of an inheritance of $20,000 that he had received but not disclosed to the Legal Services Commission, together with his breach of bail and subsequent extradition, as matters that, if taken into account, might have led to a different conclusion on fault. The High Court granted special leave to appeal, limited to the questions of jurisdictional error and error of law on the face of the record. The appeal was heard by Brennan, Deane, Toohey, Gaudron and McHugh JJ and was allowed.
The High Court began by confirming that the jurisdiction exercised by the Full Court under r 98 corresponded, for relevant purposes, with the Supreme Court's former inherent jurisdiction to issue the prerogative writ of certiorari. That writ, the Court emphasised, is not a general appellate procedure. It enables a superior court to quash an order of an inferior court only on certain established grounds, principally jurisdictional error, breach of procedural fairness, fraud, or error of law on the face of the record. The Court assumed, without deciding, that the District Court was an inferior court for this purpose.
On jurisdictional error, the Court drew a sharp distinction between administrative tribunals and inferior courts. Tribunals ordinarily lack authority to decide questions of law authoritatively; any error of law that affects their decision is therefore jurisdictional. Courts, by contrast, are entrusted with authority to decide both questions of law and questions of fact that arise within matters they have jurisdiction to entertain. The identification of relevant issues, the formulation of questions, the assessment of evidence and the application of legal principle are all routine aspects of that jurisdiction. A mistake in any of those steps does not ordinarily take the court outside its jurisdiction.
Applying that framework, the Court held that Judge Russell possessed undoubted jurisdiction to hear and determine Mr Craig's Dietrich application. That jurisdiction included the power to decide whether Mr Craig would receive a fair trial without representation and whether his lack of representation was "through no fault on his part". The majority in Dietrich had used that phrase to indicate that an accused should not be able to rely on his own unreasonable conduct, but the Court here clarified that the inquiry is one of reasonableness in all the circumstances rather than a rigid rule that any contributing fault automatically disentitles an accused. Whether Judge Russell evaluated the evidence of the inheritance, the divorce proceedings, the breach of bail and the extradition correctly or incorrectly was therefore a matter going to the merits of the decision, not to the existence of jurisdiction. Even if he misconstrued Dietrich or failed to refer to every piece of evidence, that was an error within jurisdiction.
On the alternative ground of error of law on the face of the record, the Court reaffirmed the traditional narrow view of what constitutes the record. In the absence of statute, the record comprises the initiating process, any pleadings, and the formal order or adjudication. It does not include the transcript, the exhibits or the reasons for decision unless those materials are incorporated by reference as an integral part of the formal order. The note on the information and the oral exchange on 28 July 1993 did not incorporate Judge Russell's earlier reasons. His statement "For the reasons that I have already published and given" was merely introductory and was not immediately linked to the actual making of the stay order. Accordingly, the factual matters relied on by the Full Court majority, which appeared only in the transcript and the unreferenced reasons, were not part of the record. No error of law was therefore visible on the face of the record.
Because neither ground for certiorari was made out, the Full Court's order had to be set aside and the State's application for judicial review dismissed.
Before Craig, Australian law had maintained a distinction between the availability of certiorari to administrative tribunals and to inferior courts. Cases such as R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 and Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 had emphasised that the writ goes only to inferior courts or to tribunals exercising governmental powers. The content of jurisdictional error for courts had been kept narrower than the broad nullity doctrine propounded by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. That distinction was reaffirmed in Hockey v Yelland (1984) 157 CLR 124 and Public Service Association.
The law on the record was similarly settled. R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488, Hockey v Yelland and Public Service Board (NSW) v Osmond (1986) 159 CLR 656 established that, absent statutory expansion, the record does not include the transcript or reasons unless they are incorporated by reference. The Court in Craig rejected suggestions in some New South Wales decisions that a "modern record" including reasons and transcript should be adopted, on the ground that such an approach would convert certiorari into a general appeal and expose litigants to increased cost and uncertainty.
After Craig the law remained consistent with these principles. The decision confirmed that the line between jurisdictional and non-jurisdictional error for inferior courts is not erased in Australia, in contrast to the position reached in England after Anisminic and O'Reilly v Mackman [1983] 2 AC 237. The narrow definition of the record continues to limit the utility of certiorari as a vehicle for correcting non-jurisdictional errors of law where no appeal lies. The clarification of the Dietrich "no fault" criterion as involving an overall assessment of reasonableness rather than a bright-line rule has guided trial judges in subsequent applications for stays on the ground of lack of representation. The judgment also left open, by assumption only, the question whether the District Court is an inferior court, a point that had been the subject of differing views in the academic commentary cited by Judge Lunn.
The Court stated: "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." In plain English this means a judge only steps outside his or her legal authority if he or she wrongly thinks the case is one the court can never hear, or completely misunderstands what sort of orders the court is allowed to make. Getting the facts or the law wrong inside a case the judge is entitled to decide is not the same thing.
On the Dietrich principle the Court observed that the majority in that case had said a trial "should be adjourned, postponed or stayed until legal representation is available" in the absence of exceptional circumstances where an indigent accused faces serious charges through no fault of his or her own. The Court translated this as directing attention to "the reasonableness of the conduct of an accused in all of the circumstances" rather than any automatic disqualification for any contributing fault. This makes clear that judges must look at the whole picture, including insolvency, divorce proceedings, business failure and competing financial pressures, rather than applying a rigid checklist.
Dealing with the record the Court said: "the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision". In everyday language, the official file that a higher court may inspect is very limited; it is basically the charge sheet and the final order. Everything the judge said in court or wrote in reasons stays outside that file unless the order itself expressly says it is part of the order. An off-hand remark such as "for the reasons already given" does not drag the whole judgment into the record.
Finally the Court noted that "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 ... Such a mistake ... will not, however, ordinarily constitute jurisdictional error." This passage explains that there is a difference between a mistake that can be fixed on appeal (if an appeal exists) and a mistake so fundamental that the judge had no power to make any decision at all. Only the latter can be attacked by certiorari.
Craig is triggered whenever a superior court is asked to exercise supervisory jurisdiction by certiorari (or an order in the nature of certiorari) over an order made by an inferior court in criminal or civil proceedings. It applies with particular force where the alleged error concerns the inferior court's evaluation of evidence, its application of a legal principle to the facts, or its resolution of a mixed question of law and fact that arises within the ordinary scope of its jurisdiction.
Typical triggers include applications to quash a stay granted under the Dietrich principle, refusals to grant stays, bail decisions, or other interlocutory orders in criminal matters where no statutory right of appeal exists. The precedent is engaged whenever the party seeking review relies on material that appears only in the transcript or in unreferenced reasons, or argues that the inferior court "asked itself the wrong question" or "failed to take account of relevant considerations" in the Anisminic sense. Craig makes clear that such arguments will fail for inferior courts unless the error is one that goes to the very existence or limits of jurisdiction.
The decision also applies whenever a party contends that the record includes the reasons or transcript because the judge said "for the reasons previously given". Craig holds that only an express incorporation that makes the external material an integral part of the formal order will suffice. Fact patterns in which no formal order has been drawn up, but only a handwritten note on the back of an information or charge sheet exists, are directly covered.
Although the present judgment is the source text, it itself demonstrates how the High Court treated the authorities it cited. It applied the Dietrich formulation but clarified its "no fault" component by reference to Olsson J's dissenting judgment in the Full Court, adopting the reasonableness-in-all-the-circumstances test rather than a stricter reading. It distinguished Anisminic on the ground that Lord Reid's speech was directed to an administrative tribunal, not a court, and that the broader English approach that effectively abolishes the distinction between jurisdictional and non-jurisdictional error for courts has not been adopted in Australia. The Court followed Hockey v Yelland and Public Service Board (NSW) v Osmond on the narrow content of the record, citing those decisions with approval and rejecting the more expansive New South Wales line of authority that would have included reasons and transcript.
The judgment also cited Public Service Association (SA) v Federated Clerks Union for the continued vitality of the jurisdictional-error distinction in this country. By assuming, without deciding, that the District Court is an inferior court, the Court left that question for another day but reinforced the principle that certiorari runs only to inferior courts or to certain non-judicial tribunals. In short, the Court used Craig as an occasion to restate and confine earlier authorities rather than to expand them, thereby maintaining a relatively strict supervisory jurisdiction that respects the finality of decisions made within jurisdiction.
The Court expressly left undecided whether the District Court of South Australia is, when exercising its criminal jurisdiction, an "inferior" court for the purposes of certiorari. It noted differing views in the literature and in Re Ackland; Ex parte Love [1989] 1 WAR 562 but found it unnecessary to resolve the point because the appeal failed on other grounds. That question therefore remains open.
The precise boundary between jurisdictional error and error within jurisdiction for inferior courts is acknowledged to be "particularly difficult to discern" in some categories of case, especially where a statute or rule is misconstrued. The Court gave examples but did not attempt an exhaustive catalogue, leaving scope for argument in future cases about whether a particular statutory precondition is jurisdictional in nature.
The Court also left open the policy question whether the record should be expanded by legislation to include reasons and transcript. It observed that such an expansion would significantly increase the availability of certiorari and the financial hazards of litigation, but said that was a matter best left to the responsible legislature. No view was expressed on whether rules of court or statutory amendments could validly achieve that result.
Finally, the Court did not decide whether the Dietrich principle itself should be revisited or refined; it simply applied the existing principle and clarified one aspect of the "no fault" inquiry. Whether future constitutional or statutory developments might alter the availability of publicly funded counsel or the circumstances in which a stay must be granted was not addressed. These open questions continue to mark the limits of the supervisory jurisdiction as delineated in Craig.
High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ Craig v South Australia (FC95/040) [1995] HCA 58
The Court delivered the following written judgment: -
24 October 1995 Brennan, Deane, Toohey, Gaudron and McHugh JJ
The appellant, Mr Craig, was charged by information in the District Court of South Australia with three offences, namely, larceny of a motor car, receiving the motor car knowing it to be stolen and damaging the motor car by fire, such damage amounting to $8,000. The first two offences, ie larceny and receiving, were charged in the alternative. The maximum penalties, in the event of conviction, were respectively imprisonment for five years (larceny), eight years (receiving) and five years (destroying by fire).
The appellant applied to a judge of the District Court for an order that the proceedings against him be stayed until such time as he could be "provided with representation by counsel at public expense". The application came on for hearing before Judge Russell on 22 June 1993. Oral evidence was given by both the appellant and a witness from the Legal Services Commission and documentary evidence was also received. After hearing submissions from the appellant and counsel for the Crown, his Honour adjourned the matter until later in the day when he delivered oral reasons for judgment.
In his reasons, Judge Russell made a number of specific findings about the appellant, the charges against him, his lack of means and his inability to obtain legal representation for his pending trial. In the light of those findings, he considered that the appellant "could not receive a fair trial unless he is properly represented by counsel". His Honour concluded that, in all the circumstances of the case, the effect of the majority judgments in this Court in Dietrich v The Queen [1] was that the trial "should be adjourned, postponed or stayed until legal representation [was] available" [2] . Rather than taking "the drastic step of staying the proceedings", he ordered that the date which had been set for trial be vacated, that a fresh status conference be appointed, that the South Australian Attorney-General be informed of the orders made and the reasons for making them, and that, in the event that no provision was made for the proper representation of the appellant by counsel at his trial within a reasonable time, the appellant was to be at liberty to apply for such other order or orders as may be proper in the circumstances.
On 28 July 1993, the matter was relisted before Judge Russell at the request of the Crown. Counsel for the Crown (Ms Vanstone) stated that she was instructed by the Attorney-General to advise his Honour that the Attorney-General did not "intend to make any particular provision for Craig's representation" and intimated that the effect of that was, in all the circumstances, that the appellant would be unrepresented on any trial. The transcript records what followed:
Ms Vanstone: In those circumstances, the Crown's request is that your Honour re-list the matter for trial. We say, of course, that in our submission the accused is not without legal representation through no fault of his own.
His Honour: I have already ruled that it is through no fault of his own.
Ms Vanstone: I understand that. I just wanted to crystalise [sic] the position for your Honour. Our request is that the matter be listed for trial again. It seems clear that your Honour won't be disposed to make such an order and, in those circumstances, we suggest that the matter should be stayed, pending Mr Craig obtaining legal representation through his own resources.
His Honour: For the reasons that I have already published and given in relation to this matter, there will be an order staying the proceedings. Do you want that to be a permanent stay?
Ms Vanstone: No, it wouldn't be appropriate because if Mr Craig's circumstances changed tomorrow and he was able to fund legal representation then clearly, the Crown would be entitled to press for a new trial date.
His Honour: There will be a stay until further order. Do you apply for bail?
His Honour: I think that an application for bail should be in writing so you will have to obtain one of the forms. I am sure that you will be provided with one. Make an application to the court and state the grounds upon which you say you are entitled to bail.
In the meantime, the proceedings against you are stayed until further order.
In accordance with what this Court was informed is common local practice, no formal order was taken out. The closest thing to a formal record of the order is a note which appears on the back of the information and which is authenticated by the signature of the Clerk of Arraigns. That note records: "H/H orders a stay of proceeding until further order." It also records that the appellant was remanded in custody "pending the court receiving a written bail application". The appellant was subsequently released on bail.
By summons filed in the Supreme Court of South Australia, the State of South Australia sought an order in the nature of certiorari quashing the order staying the proceedings. The summons also sought an order in the nature of mandamus directed to Judge Russell requiring him "to try the matter according to law" [3] . The application for those orders came on for hearing before a Full Court of the Supreme Court which, by majority (Matheson and Prior JJ, Olsson J dissenting), made an order in the nature of certiorari quashing the stay order. The present appeal to this Court is brought by special leave from the judgment of the Full Court. In accordance with a restriction placed upon the grant of special leave, the appeal is "limited to the question of jurisdictional error and error of law on the face of the record".
The State's application to the Supreme Court was brought pursuant to r 98 of the Supreme Court Rules 1987 (SA). Rule 98.01(1) and (2) provides:
(1) An order in the nature of mandamus, prohibition, certiorari or quo warranto shall be sought by way of judicial review by summons in accordance with the provisions of this Rule.
(2) The prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the Court and informations in the nature of quo warranto are hereby abolished, but in any case in which relief could have been granted by means of any of the said writs or of the said information, the Court shall have jurisdiction to make an order in the nature, and to have the effect, of the remedy or of the remedies which would have been available if this Rule were not in force.
It is common ground between the parties that the substantive content of the Full Court's jurisdiction under r 98 to make an "order in the nature of certiorari" corresponds, for all relevant purposes, with that of the Supreme Court's previous inherent jurisdiction to order the issue of the prerogative writ of certiorari [4] . That writ went only to an inferior court [5] or to certain tribunals exercising governmental powers [6] . That means that an order in the nature of certiorari pursuant to r 98 is properly made only if it be directed to such a court or tribunal. There is dispute between the parties about whether the District Court of South Australia is, when exercising its criminal jurisdiction, an "inferior" court [7] . For reasons which will appear, however, it is unnecessary to decide that question and, in a context where certain aspects of it were not fully explored in argument, it is convenient to assume that the District Court is, for relevant purposes, an inferior court. On that assumption, the critical issue on the appeal to this Court is whether if, as the Full Court has held, the trial judge's decision to grant the stay was affected by error, that error was of a kind which would have warranted the issue of the prerogative writ of certiorari in the exercise of the Supreme Court's previous inherent jurisdiction to order the issue of that writ.
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 [8] of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error [9] , failure to observe some applicable requirement of procedural fairness [10] , fraud [11] and "error of law on the face of the record" [12] . Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it [13] . In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
The above summary identification of the grounds upon which the prerogative writ of certiorari may properly issue glosses over a number of difficulties about the content of those grounds. Two of those difficulties are of direct relevance in the present case where it is argued that the alleged error on the part of the trial judge was either "jurisdictional error" or "error of law on the face of the record" for the purposes of certiorari. The first relates to what relevantly constitutes "jurisdictional error". The second is what constitutes "the record" for the purpose of determining whether there is "error of law on the face of the record".
In considering what constitutes "jurisdictional error", it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part of an inferior court.
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.
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. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern [14] .
It was submitted on behalf of the respondent State of South Australia that an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question. Particular reliance was placed, in support of that submission, upon the well-known passage in Lord Reid's speech in Anisminic Ltd v Foreign Compensation Commission [15] :
there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. In Anisminic, the respondent Commission was an administrative tribunal. Read in context, the above comments should, in our view, be understood as not intended to refer to a court of law. That was recognised by Lord Diplock in In re Racal Communications Ltd [16] and affirmed by the English Divisional Court in R v Surrey Coroner; Ex parte Campbell [17] . It is true that Lord Reid's comments were subsequently suggested by Lord Diplock [18] and held by the Divisional Court [19] to be also applicable to an inferior court with the result that the distinction between jurisdictional error and error within jurisdiction has been seen as effectively abolished in England [20] . That distinction has not, however, been discarded in this country [21] and, for the reasons which follow, we consider that Lord Reid's comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari. In that regard, it is important to bear in mind a critical distinction which exists between administrative tribunals and courts of law. 1. [1969] 2 AC 147 at 171. 2. [1981] AC 374 at 382-383. See also BHP Petroleum Pty Ltd v Balfour (1987) 180 CLR 474 at 480-481. 3. [1982] QB 661 at 675. 4. O'Reilly v Mackman [1983] 2 AC 237 at 278. 5. R v Greater Manchester Coroner; Ex parte Tal [1985] QB 67 at 81-83. 6. Pearlman v Harrow School [1979] QB 56 at 69; O'Reilly v Mackman [1983] 2 AC 237 at 278. But cf South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363. 7. See, in particular, Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 at 141, 149, 165; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371-372. And see also Houssein v Under Secretary of Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 93-95; Hockey v Yelland (1984) 157 CLR 124 at 130; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 374-377.
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [22] :
Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so. The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. 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. 1. [1981] AC 374 at 383.
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.
The history of the writ of certiorari can be traced back to at least the fourteenth century [23] . That history provides part of the context in which questions of the ambit of the writ must be resolved. Resort to medieval history should not, however, be permitted to allow either a transformation of certiorari into a general appeal or a side-stepping of the nineteenth century legislative reforms aimed at curbing the excessive availability of the writ which had given rise to undesirable technicality. Those legislative reforms were directly concerned with challenges to convictions before magistrates. Their practical effect was, however, to bring about a general confinement of the content of an inferior court's "record" for the purposes of certiorari to the documents initiating and defining the matter in the inferior court and the impugned order or determination.
One finds in some recent cases in this country support for the adoption of an expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the "modern record" of an inferior court [24] . As Priestley JA pointed out in Commissioner for Motor Transport v Kirkpatrick [25] , that approach is not precluded by any direct decision of this Court. Nonetheless, it should, on balance, be rejected. For one thing, it is inconsistent with the weight of authority in this Court which supports the conclusion that, in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision [26] . More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of "the record" would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law [27] upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error [28] . It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed. On balance, it appears to us that the question whether there should be such an increase in the availability of certiorari, or of orders in the nature of certiorari, is one that is best left to the responsible legislature.
The fact that the transcript of proceedings and reasons for decision do not, of themselves, constitute part of "the record" does not preclude incorporation of them by reference. That was recognised in Public Service Board (NSW) v Osmond [29] where Gibbs CJ, in a judgment which represented the judgment of the Court [30] , referred to "the rule, well established at common law that reasons do not form part of the record, for the purposes of certiorari", and added the qualification "unless the tribunal chooses to incorporate them". As Gibbs CJ indicated, that qualification can be traced to the judgment of Denning LJ in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [31] . It has also been accepted in other judgments in this Court [32] . As so accepted, however, it should not be understood as having the effect that a merely introductory or incidental reference to the reasons for decision produces the consequence that the whole or part of the reasons somehow become part of both the formal order and "the record" of the particular court. As Mahoney JA has pointed out [33] , such a result would mean the question of what constitutes "the record" would "be determined by accidents of whether particular words were used in the judgment of the body concerned". The qualification should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and "the record" [34] . If, for example, the formal order incorporates undertakings given by a party "as set out in" a particular designated document or is said to be made "in terms of proposed orders set out in the reasons for judgment", the order and the record will incorporate only those parts of the particular document or the reasons for judgment which set out, qualify or otherwise affect the content of those undertakings or proposed orders. Conversely, a merely introductory or incidental reference will not suffice to incorporate, in either the formal order or the record, reasons given for making the formal order which do not in fact constitute part of it. Thus, for example, an introductory remark such as the phrase "for the reasons given" or the word "accordingly" will not, of itself, have the effect of incorporating the whole or any part of the reasons for decision in either the formal order or "the record".
The determination of the precise documents which constitute "the record" of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that "[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication" [35] . Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record.
In the present case where no formal order has been taken out and no complete record had been prepared by the District Court, the record included the information, the transcript record of the appellant's statement to the effect that he made what he called "a Dietrich application", the orders made by the trial judge on 22 June 1993 and the challenged stay order which the trial judge finally made on 28 July 1993. The fact that, on 28 July, Judge Russell said, "For the reasons that I have already published and given in relation to this matter", before indicating that there would be an order staying the proceedings, did not have the consequence that the record for the purposes of certiorari included the reasons for decision given by his Honour on 22 June. For one thing, that reference to his Honour's earlier reasons was not immediately linked to the actual making of the stay order which did not occur until his Honour subsequently said, after discussion with counsel for the Crown about whether the stay should be a permanent one, that "[t]here will be a stay until further order". More important, even if the reference to the earlier reasons had been immediately linked to the actual making of the formal order, it would have been merely introductory of it. The reference would not itself have been incorporated in the formal order. Nor would its effect have been to incorporate the earlier reasons for decision in either the formal order or the record of the District Court for the purposes of certiorari.
Was there jurisdictional error in the present case?
The decision of this Court in Dietrich v The Queen [36] established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment, Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices [37] :
we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being "through no fault on his or her part" was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune. A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused. 1. (1992) 177 CLR 292. 2. Dietrich (1992) 177 CLR 292 at 315.
Judge Russell's conclusion that the appellant "could not receive a fair trial unless he is properly represented by counsel" and his order staying the proceedings were based on a number of particular preliminary findings of fact. Those findings were directed to the matters identified in the above extract from the judgment of Mason CJ and McHugh J in Dietrich. They included the following: that the appellant was charged with "major indictable offences"; that the appellant was "an indigent accused" who had "been refused legal aid" and had "no means, or no sufficient means, to fund the cost of [proper] representation"; that it could not be said that the appellant's lack of legal representation resulted from any "fault" on his part; that there were no "exceptional circumstances which would prevent" the making of a stay order; that the appellant had no legal training and suffered from an impediment of speech. Clearly, if those findings are accepted, the present case was one in which the decision of this Court in Dietrich required that the proceedings should be adjourned, postponed or stayed. Indeed, the extract from the transcript which has been set out earlier in this judgment indicates that counsel for the Crown effectively conceded that that was so. The Crown's attack on his Honour's order staying the proceedings has, at all stages, been directed at one of those findings, namely, the finding that the appellant's inability to obtain legal representation had not been brought about through his own fault. The basis of the Full Court's decision that an order in the nature of certiorari should be made was a conclusion of the majority judges that that finding was vitiated by error amounting to jurisdictional error.
In the Full Court, Matheson J, with whose reasons Prior J expressed his "substantial agreement", referred to a number of factual matters to which, as he pointed out, Judge Russell had not referred in his reasons for judgment. Matheson J ascertained those factual matters from an examination of the transcript of proceedings before Judge Russell, including a letter which the appellant had written and which had been received in evidence in the District Court. Towards the conclusion of his judgment, Matheson J succinctly identified what he considered to be the effect of those additional matters:
that after having been granted legal assistance, and having had that legal assistance for the committal hearing, the prisoner received an inheritance of $20,000, that he did not advise the [Legal Services] Commission thereof, that he broke bail as a result of which at least assets in the form of household goods in South Australia were taken, and as a result of the subsequent extradition he has apparently lost his Volvo car in New South Wales. He concluded that Judge Russell's failure to refer to those factual matters indicated that "his Honour misconstrued [the] reference [in Dietrich ] to an accused being unable to obtain legal representation "through no fault of his own" ". Matheson J added that, if all the facts had been properly investigated and the decision of the majority in Dietrich properly understood, Judge Russell's "decision may well have been different".
In his dissenting judgment in the Full Court, Olsson J also referred to the additional factual matters upon which Matheson J relied. Olsson J considered that Judge Russell had correctly understood the effect of the majority judgments in Dietrich and that the evidence, when viewed as a whole, was capable of supporting his finding that the appellant's inability to obtain legal representation should not be seen as brought about through his own fault. As Olsson J pointed out, the appellant was, at the time he received the inheritance of $20,000, enmeshed in lengthy divorce proceedings and "clearly insolvent". He added:
As I understand the situation Judge Russell concluded that, as at mid-1992, Craig was beset by a host of problems.
The charges, the subject of the present proceedings, had been initiated against him and the hearing of them was pending. He had sought and been granted legal aid.
Divorce proceedings as between himself and his wife were in train in the Family Court, including a claim for a property settlement. In order to fund his total liability for costs in those proceedings he, in some fashion, charged an inheritance to which he had become entitled in his aunt's estate in favour of his then family law solicitor. That solicitor somehow procured payment of the sum of $20,000 in settlement of the inheritance, from which he deducted several thousand dollars for costs.
At the time the respondent was clearly insolvent. He had many business and domestic debts and was unable to meet them as they were due. A business which he was conducting had failed. He returned to study music at University and was attempting to survive on a DEET Auststudy allowance. He had further substantial liabilities for costs in the Family Court proceedings.
Eventually his problems became too much for him. Having expended much of the balance of his inheritance in settlement of some of his most pressing debts and some living expenses, he utilised the balance of about $4,000 in purchasing a Volvo car and subsequently absconded to Sydney, from whence he was extradited.
It is unnecessary for the purposes of this appeal to express any firm view about whether the view of the facts taken by the trial judge as explained by Olsson J is or is not a preferable one to that preferred by Matheson and Prior JJ. Nonetheless, it is appropriate to indicate that, like Olsson J, we do not consider that either Judge Russell's conclusion or his failure to refer, in what was essentially an ex tempore judgment, to the particular matters mentioned by Matheson J signifies a failure on his part to appreciate the true effect of what was said by the majority of this Court in Dietrich about the absence of "fault" on the part of an accused. Be that as it may, any such error on the part of Judge Russell would not have been jurisdictional error.
As Dietrich establishes, Judge Russell possessed jurisdiction to hear and dispose of the appellant's application for a stay of proceedings. That jurisdiction encompassed the identification and determination of relevant questions of law and fact involved in deciding whether a trial in which the appellant was left without legal representation would be unfair and whether a stay should or should not be granted. Those questions included the question whether the appellant's inability to obtain legal representation should be seen as being "through no fault on his part". Like almost any question which arises for determination by a judge, that question of "fault" can, once the facts are ascertained, be dressed in the garb of a question of law. Essentially, however, it is a question of fact involving an element of discretionary judgment. Regardless of whether it be viewed as a question of law or a mixed question of law and fact, however, its resolution lay within the primary authority of the trial judge. If Judge Russell fell into error in assessing the effect of the majority judgment in Dietrich or in concluding that the appellant's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. It was not a jurisdictional error for the purposes of certiorari.
As has been seen, the judgment of Matheson J in the Full Court discloses that that Court's conclusion that the trial judge had fallen into error of law was based on factual matters, relating to fault on the part of the appellant, which could only be ascertained by a perusal of the transcript of proceedings, including the exhibits, before Judge Russell. The effect of our conclusion that the record in the present case included neither the transcript of proceedings nor the reasons for decision is that the error alleged by the Crown and found by the Full Court was not error on the face of the record for the purposes of certiorari.
It follows from what has been said above that there was no ground upon which an order in the nature of certiorari could properly be made by the Full Court. Accordingly, the appeal should be allowed, the order made by the Full Court should be set aside and the application of the State of South Australia for judicial review of the order made by Judge Russell should be dismissed. Liberty should be reserved to the parties to apply in writing within fourteen days for an order for the costs of the proceedings in the Full Court and in this Court.
Craig
South Australia
(1992) 177 CLR 292
(1991) 173 CLR 132
(1951) 82 CLR 208
(1985) 157 CLR 351
(1972) 128 CLR 509
(1978) 139 CLR 482
(1987) 180 CLR 474
(1982) 148 CLR 88
(1984) 157 CLR 124
(1988) 13 NSWLR 368
(1986) 7 NSWLR 503
(1968) 118 CLR 488
(1986) 159 CLR 656
(1966) 116 CLR 644
(1968) 118 CLR 58
(1980) 147 CLR 15
Appeal allowed. Set aside the order of the Full Court of the Supreme Court of South Australia and in lieu thereof order that the respondent's application for judicial review of the order made by his Honour Judge Russell on 28 July 1993 be dismissed. Liberty to apply on costs.