Relief in the Nature of Certiorari
17. Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.
18. The face of the record includes the reasons expressed by the LAB for its ultimate determination: s.69(4) Supreme Court Act 1970 .
19. In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:
"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."
20. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]:
"Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."
21. Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].
22. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.
23. Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184."