See also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441-444 per Meagher JA.
32 In the present case there was no right of appeal from the decision of the primary judge, although the claimant did request the judge to submit questions of law to the Court of Criminal Appeal pursuant to s 5B(2) of the CA Act, as mentioned in [6] and [7] above. However, as McHugh JA observed in Soulemezis in the passages to which I have referred, the duty to provide reasons can be rested on the wider basis that justice must not only be done but must be seen to be done. Although there are no 'formulae' for determining whether reasons are sufficiently detailed, it is usually sufficient, as Mahoney JA observed in Soulemezis (at 273E), "if by his reasons the judge appraises the parties of the broad outline and constituent facts of the reasoning on which he has acted."
33 This requirement does not necessarily mandate lengthy or detailed reasons. The extent of the duty to give reasons is, as McHugh JA observed in Soulemezis (at 280G), "related to the function to be served by the giving of reasons".
34 In a case such as the present where there was no right of appeal from the decision of the primary judge, the critical determinant as to whether the primary judge's reasons were sufficient was whether they were so inadequate as to render the decision unintelligible to the reader and/or whether the absence of an explicit finding by the primary judge in relation to the defences raised by the claimant suggests that those defences were not considered.
35 In Soulemezis (at 273B) Mahoney JA recognised that the failure to give adequate reasons may, in courts other than superior courts, constitute defects of jurisdiction to which prerogative relief will go. However, his Honour's observation to that effect related to cases where specific findings of fact are necessary to ground the power of the trial judge to make the order that he has made. The proceedings in the District Court in the present case were not of that character.
36 The issue was recently adverted to by Basten JA in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372 at 399 [130] where his Honour said:
"There is extensive authority for the proposition that a failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal, where the right of appeal is limited to errors of law: see, eg, Soulemezis (supra). Whether it also constitutes jurisdictional error is not a matter which needs to be determined, in relation to the statutory mandate of the Appeal Panel. It is sufficient for the purposes of relief under s 69 of the Supreme Court Act that an error of law has been identified, which appears on the face of the record. Because the record includes the reasons of the Panel, inadequacy of reasons will inevitably be such an error. As a result, the decision of the Panel may be set aside."
37 Like Basten JA, I find it strictly unnecessary in the present case to express a concluded view as to whether, assuming the primary judge's reasons were inadequate, that inadequacy could amount to an error going to his jurisdiction. I would therefore agree with his Honour that as the reasons of a court now form part of the record (see s 69(4) of the SC Act), where those reasons are on their face inadequate, there is an error of law on the face of the record in respect of which appropriate relief may be granted.
38 Nevertheless, in a case such as the present, in my opinion the better view is that inadequacy of reasons does not constitute an error going to jurisdiction. Judicial review for jurisdictional error is concerned with whether the decision-maker or inferior court had the authority to decide what it did and whether it properly understood the nature and limits of its jurisdiction in that regard. In relation to inferior courts such as the District Court, the issue of jurisdictional error was authoritatively canvassed in the joint judgment of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) in Craig v The State of South Australia (1995) 184 CLR 163. Their Honours said (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.
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."
39 Their Honours continued at 179-180 in these terms:
"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."
40 More recently the High Court considered a submission loosely comparable to that advanced by the claimant in the present case, namely, that failure by a Minister to give reasons for the cancellation of a visa where there is a duty to do so amounts to jurisdictional error. This submission was rejected: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 where Gleeson CJ, Gummow and Heydon JJ said (at 226 [48]):
"The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this court and compliance by the minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error."
41 It would therefore seem that the failure to give reasons in that case, where there was a statutory duty to do so, may have founded a claim for discretionary relief in the nature of mandamus but could not be reframed as an error going to jurisdiction.
42 In Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265, it was suggested that a decision-maker who was required to furnish reasons had dealt with the evidence in a "vague" way. Allsop J characterised that criticism (at [23]-[24]) as "one of the adequacy of the reasons. This is not jurisdictional error".
43 This is not to say that there could not be cases where a failure to give reasons or adequate reasons may constitute jurisdictional error. In Ex parte Palme, McHugh J, who reached the same result as the majority, said (at 227 [55]):
"Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority."