Relief in the Nature of Certiorari
27 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 [1995] HCA 58; 184 CLR 163 at 175-176.
28 Relief under s.69 may be granted in the case of error of law on the face of the record: Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28]. The face of the record includes the reasons expressed by Dr Giblin and the Appeal Panel for his and its ultimate determination: s.69(4) Supreme Court Act 1970.
29 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."
30 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 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."
31 See, more recently, Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 at 567-578 [56]-[90] concerning jurisdictional error and error of law on the face of the record for the purposes of relief in the nature of certiorari.
The Confines of Judicial Review
32 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way:
"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."
33 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272; Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at 152-154 [43]-[44].
34 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 40-41.
35 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.
36 A finding of fact may reveal error of law where it appears that the decision maker has misdirected himself or herself or where there is no evidence to support a finding: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357.
37 A failure on the part of an administrative tribunal to give any or any adequate reasons does not, without more, establish that the decision involved some error, although there may be cases that warrant the inference that the relevant tribunal has failed in some respect to exercise its powers or jurisdiction according to law: Absolon v New South Wales TAFE [1999] NSWCA 311 at [67]; YG v Minister for Community Services [2002] NSWCA 247 at [37]. As will be seen later in this judgment, the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 considered the duty of an Appeal Panel under s.327 WIM Act to give reasons.
38 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] HCA 24; 135 CLR 110 at 118-199: Bruce v Cole (1998) 45 NSWLR 163 at 183-184.