Robinson, Mark --- "Conducting an administrative law case in NSW" [2016] PrecedentAULA 58; (2016) 136 Precedent 4

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CONDUCTING AN ADMINISTRATIVE LAW CASE IN NSW

By Mark Robinson SC

This article covers the conduct of a judicial review case in NSW (and the principles are the same in most other states in Australia) and it outlines Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which took effect on 15 March 2013.

The rule dictates the practice and procedure of judicial review cases in the Supreme Court of NSW. It covers wide-ranging matters, such as the time for commencement of judicial review proceedings, the evidence permitted limited discovery, and it permits the court to order a statement of reasons to be produced from a public authority decision-maker.

It also contains provisions for submissions and the production of a court book before the hearing.

This article will not cover the Commonwealth or the other states and territories. In addition to the new Pt 59, it will cover:

• administrative law process and remedies in NSW;

• the primary tenets of administrative law;

• merits review and judicial review in NSW (the legality/merits distinction); and

• an overview of jurisdictional error and the grounds of judicial review.

ADMINISTRATIVE LAW IN NSW

First, the full range and scope of administrative law processes and remedies should be identified. At its broadest, administrative law in NSW relates to or concerns the following:

1. Self-help remedies or processes – they may be invoked by aggrieved persons or entities from time to time (be they personal, political, fair or unfair, lawful or not). It can be as simple as picking up the telephone and speaking to the administrator who made the impugned decision, or a letter-writing campaign.

2. Internal review – where there is provision (usually in the enabling Act, but not necessarily) for a superior to the original administrative decision-maker to look at and re-make the subject decision. Sometimes it is done without a statutory provision, as a matter or practice or policy.

3. Need for documents – freedom of information (FOI) requests under the Government Information (Public Access) Act 2009 (NSW) (GIPAA). The agency decisions to FOI requests under GIPAA are subject to merits appeals to the Information Commissioner and then to the NSW Civil and Administrative Decisions Tribunal (NCAT);

4. Breach of privacy – the Privacy Commissioner, and NCAT in administering the Privacy and Personal Information Protection Act 1998 (NSW) – involves breach of privacy by a state government agency only;

5. Maladministration – the Ombudsman whose office investigates and reports on systemic and particular instances of maladministration and makes recommendations (which are usually accepted by the NSW Government);

6. Corrupt conduct – see the Independent Commission Against Corruption (ICAC);

7. Ex gratia or act of grace payments – when someone has suffered a financial or other detriment as a result of the workings of the government. This detriment must be of a nature which cannot be remedied or compensated through recourse to legal proceedings. Payments are discretionary in nature and it is for ministers to determine individual applications;^[1]

8. External independent merits review – is the process of obtaining an external review of the merits of a statutory (administrative) decision by a person or entity independent of the original decision-maker, who comes to a new decision. Merits review involves making a decision ‘de novo’ (meaning anew). It has also been referred to as ‘standing in the shoes of the decision-maker’ and concerns a ‘remaking’ of the decision under review in order to come to the correct or preferable decision based on evidence now presented. The jurisdiction of the Administrative and Equal Opportunity Division of NCAT is a leading example of an independent, external merits review body. The leading case on the nature of external merits review is Shi v Migration Agents Registration Authority.^[2]

9. Judicial review – the legality of administrative decisions, including those of ministers, governments and tribunals that affect rights, interests or legitimate expectations of persons or entities. These proceedings, known as ‘judicial review’ of administrative action, are usually dealt with by the Supreme Court of NSW. This is usually the option of last resort for an applicant, and it is undertaken when all other options for challenge are not available.^[3][4]

Administrative law did not develop in a vacuum. It was developed by the courts in England and Australia over 500 years. Its purpose was to keep a check on inferior court judges and tribunals and quasi-judicial tribunals as well as executive decision-makers to ensure they all acted lawfully and within the meaning, scope and purpose of their legal powers. Primary tenets of administrative law have developed over time. Overall, they are to ensure that in the making of administrative decisions, there is:

• legality (judicial review and merits);

• fairness (judicial review and merits);

• participation (merits);

• accountability (merits);

• consistency (merits);

• rationality (judicial review and merits);

• proportionality (judicial review and merits); and

• impartiality (judicial review and merits).

The usual aim of an external merits review process in a tribunal is to provide the review applicant with a correct or preferable administrative decision, while at the same time improving quality and consistency in relation to the making of decisions of that kind. It is an aid to good public administration.

The primary aim of judicial review in the court is to ensure (and to some extent, enforce) legality; namely, the legal correctness of administrative decisions. It seeks to prevent unlawful decisions from remaining or standing on the public record.

The fundamental distinction between the two is known as the legality/merits distinction.

FRAMEWORK AND PROCEDURE

The jurisdiction of superior courts by way of judicial review of administrative action was developed by the courts in accordance with the common law. It involves a court assessing or examining a decision or purported decision of an executive or governmental body or a tribunal for legal error (and not on the merits of the particular case).

Relief is discretionary and may include: quashing or setting aside the decision, declaring the decision invalid or void and, in some cases, remitting the decision to the original or primary decision-maker for re-consideration according to law (sometimes with a direction that the matter be decided by a different decision-maker or differently constituted tribunal).

While judicial review in NSW lies largely in the realm of the common law, its existence is constitutionally entrenched and protected by s73 of the Commonwealth Constitution.^[5] Because judicial review is protected by the Constitution, it cannot be taken away by any state legislation (at least for correction for jurisdictional error).

The NSW Government has deliberately chosen not to enact a codification of the law here (such as the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judicial Review Act 1991 (Qld)). The consequence is that, in so far as decisions of most public bodies and officials made or required to be made under statute are concerned, the avenue for judicial review is neither helped nor hindered by statutory considerations. The grounds for such review are still evolving through decisions of various courts and many of these grounds overlap.

Early identification of the most appropriate ground or grounds of judicial review is the key to success in this area, providing you have also sought the appropriate remedy and the discretionary factors do not work against you. A remedy will not normally be granted (on the finding of a legal error or defect) if:

• a more convenient and satisfactory remedy exists (such as a merits appeal to the NCAT);

• no useful result could ensue (futility);

• the applicant has been guilty of unwarrantable delay;

• if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made;^[6] or

• an applicant should not have acquiesced in the conduct of proceedings known to be defective. An applicant cannot ‘sleep on their rights’ – they should make an election to challenge or no longer participate in the executive or court-like process below.

Ordinarily, then, the grounds of judicial review are known as:

• error of law amounting to identification of the wrong question;

• ignoring relevant material;

• relying on irrelevant material or, at least, in some circumstances; or

• making an erroneous finding or reaching a mistaken conclusion;

that lead to an excess of power or authority, giving rise to the availability of relief against the decision of that administrative body for what has come to be known nowadays as a ‘jurisdictional’ error of law.

PRACTICE AND PROCEDURE

In NSW, an aggrieved party hoping to seek relief by way of judicial review must apply to the Supreme Court of NSW – usually in the Administrative Law List of the Common Law Division.

To this end, legal practitioners need to be aware of the Supreme Court Practice Note CL 3 dated 6 July 2007 which explains the practical operation of the Administrative Law List and some of the provisions of the UCPR.

The Supreme Court’s judicial review jurisdiction (by way of the filing of a summons) is primarily invoked by the following sections of the Supreme Court Act 1970 (NSW) (SCA):

• s69 – proceedings by summons in lieu of the prerogative writs;

• s65 – an order to fulfil a public duty;

• s66 – injunction; and

• ss75 and 63 – declarations.

Under the UCPR, a practitioner must first check the list of legislation in schedule 8 (Assignment of business in the Supreme Court). If an Act is listed there, any proceedings in the Supreme Court regarding any section of that Act are thereby assigned to be heard in the Administrative Law List of the Common Law Division. By reason of r45.3, judicial review proceedings should all be assigned or transferred to the Administrative Law List. Other UCPR rules that must be checked are:

• r1.18(b)&(c) (assignment of business);

• r6.11 (submitting appearances);

• Pt 49 (internal appeals);

• Pt 50 (external appeals);

• Pt 51 (Court of Appeal); and

• the new Pt 59 (judicial review).

Section 48 of the SCA sets out which matters are assigned to be heard in the Court of Appeal.

Once proceedings are commenced, in the ordinary course, a directions hearing will be convened before the Registrar of the Supreme Court (sometimes before a judge). At that hearing, orders are made for the orderly preparation of the matter for trial.

The principal concerns are then obtaining any available documents and affidavits for tender and an early hearing date.

Usually, all that is required in evidence is the tender of the documentary material that was before the original decision-maker (cf: Allianz Australia Insurance Ltd v Kerr).^[7] In some cases (depending on the ground of judicial review relied upon) more evidence than just the exhibits is required, such as an affidavit or a transcript of the hearing of the proceedings below (if a procedural fairness point is taken or a no evidence point). Oral evidence and cross examination is almost never required in judicial review matters. If the evidence tendered is voluminous and is not required, one can expect significant criticism from the bench and maybe an adverse costs order. There will also be repercussions in the Court of Appeal – see, for example, Insurance Australia Ltd t-a NRMA Insurance v Milton (No. 2),^[8] where a solicitor was ordered to personally pay the costs of some of the appeal books.

At the first return of the summons, under the practice direction, an application may be made seeking a direction that the person or body whose decision has been challenged furnish to the plaintiff a statement of reasons for the impugned decision. The statement must not only set out the decision-maker’s actual path of reasoning for the decision (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [55]) but it must also include that person’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, together with that person’s explanation as to why the decision was made – Pt 59.9(3) UCPRs.

It can readily be seen that in a number of circumstances, an order of the Supreme Court requiring a decision-maker to provide his/her explanation as to the reasoning process leading to the decision might be an extremely useful forensic tool or weapon for a plaintiff.

Obtaining reasons by order of the Court might well be the only option available to aggrieved applicants in NSW, as ordinarily reasons are not required to be given by an executive decision-maker unless there are special circumstances: Public Service Board (NSW) v Osmond (Osmond).^[9]

The general law requires that, in the ordinary case, where an administrative decision-maker exercises discretionary statutory power to make a decision, there is no common law duty to provide reasons for that decision. However, the High Court also held in Osmond that where there were ‘special circumstances’ either in the relevant Act or as required by the principles of natural justice, then the general rule did not apply and reasons were required to be provided.^[10] This proviso was explained and applied in NSW in relation to a ruling that costs assessors must provide reasons for their decision (the Act was silent on the question) – otherwise, the appeal rights given by the Act would be close to useless.^[11]

The importance of fully stated reasons as an essential legal requirement for a quasi-judicial tribunal (the NSW workers’ compensation medical appeal panel) was discussed in Campbelltown City Council v Vegan (Vegan) where the NSW Court of Appeal held that the appeal panel members in workers’ compensation had a duty to give full and proper reasons, even though that was not expressly stated in the relevant legislation.^[12] The reasons were held to be inadequate and the panel’s decision was set aside. The Court indicated that the authorities that underpin Osmond’s case might ‘no longer be as definitive as they once were’.^[13] In Vegan, the Court of Appeal further held that, as a matter of statutory construction and as a matter of principle, the medical appeal panel was a quasi-judicial entity and should be required to provide reasons for that reason alone.

JURISDICTIONAL ERROR AND THE GROUNDS OF JUDICIAL REVIEW

Ordinarily, judicial review remedies (orders in the nature of the prerogative writs, certiorari, prohibition and mandamus and injunctions and declarations) are available under the SCA in the Court’s exercise of its supervisory jurisdiction over state statutory decision-makers and tribunals.

Establishing a ground of judicial review is all that is ordinarily required in order to move the Court for a remedy (which in judicial review, as we have seen, is discretionary in most cases – except possibly for denials of natural justice: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs).^[14]

Examples of jurisdictional errors of state tribunals and executive decision-makers include:^[15]

• identifying an incorrect issue;

• asking a wrong question;

• ignoring relevant material;

• relying on irrelevant material; or

• an incorrect interpretation and/or application to the facts of the applicable law, in a way that affects the exercise of power.

The words ‘in a way’ (above) are emphasised for good reason. It must be something that moves the Court to find for legal error.

Jurisdictional errors that may be committed by a tribunal or executive body (post-Craig v State of South Australia (Craig’s case))^[16] that will always be corrected by a superior court (as extended by the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf)^[17] can also be discussed as follows:

• The definition of ‘jurisdictional error’ in Craig’s case, is not exhaustive (Kirk v Industrial Relations Commission of New South Wales (Kirk’s case) also held this.^[18]

• 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.

If an error of this kind 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: Minister for Immigration and Multicultural Affairs v Bhardwaj.^[19]

Denials of natural justice or breaches of the rules of procedural fairness almost invariably result in a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia; Refugee Review Tribunal, Re; Ex parte Aala; and, Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah.^[20]

The remaining grounds of judicial review (in addition to denials of natural justice or breaches of procedural fairness – including bias and apprehended bias) in respect of tribunals and executive decision-makers include:

1. errors of law (including identifying a wrong issue, making an erroneous finding, and reaching a mistaken conclusion);

2. improper purpose;

3. bad faith;

4. irrelevant/relevant considerations;

5. duty to inquire (in very limited circumstances);

6. acting under dictation;

7. legal unreasonableness;^[21]

8. proportionality (not presently available, except via legal unreasonableness);

9. no evidence;

10. uncertainty;

11. inflexible application of a policy (without regard to the individual merits of the application);

12. manifest irrationality or illogicality (possibly now a sub-branch of legal unreasonableness);

13. failure to afford a ‘proper, genuine and realistic consideration’ of material; and

14. failure to provide reasons or adequate reasons where reasons are required to be provided as part of the decision-maker’s power.

THE RECORD

It should be borne in mind that as an alternative to jurisdictional error, one need only prove that there was an error of law on the face of the record on any of these grounds in order to obtain relief in the nature of certiorari (quashing or setting aside). Accordingly, attention should be drawn to errors such as this as they go to legality as well in the sense that once found, a decision is usually set aside by the court. Any of the above grounds of judicial review is capable of establishing error of law on the face of the record, and, if they are serious enough, they might also constitute jurisdictional error or a constructive failure of the decision-maker to exercise his or her jurisdiction (or both or all three). By s69(3)-(4) of the SCA, the ‘record’ of a tribunal includes the written reasons expressed for its ‘ultimate determination’.

CONCLUSION

The introduction of Pt 59 with effect from 15 March 2013 brought enormous and far-reaching changes to the conduct of judicial review proceedings in NSW. It has codified many difficult to find practices and procedures and it serves as a stable platform for the conduct of judicial review matters.

Mark Robinson SC practises administrative and general law from Maurice Byers Chambers, Sydney. He is the lead author and editor of New South Wales Administrative Law, a two volume loose-leaf service, and an author of the book NCAT – Practice and Procedure, and editor and an author of the book Judicial Review: The Laws of Australia by Thomson Reuters. His forthcoming book is titled Administrative Law – The Laws of Australia to be published by Thomson Reuters. PHONE [phone] EMAIL [e-mail].

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^[1] See NSW Treasury Circular NSW TC 11-02 dated 1 February 2011.

^[2] [2008] HCA 31; (2008) 235 CLR 286.

^[3] A leading NSW case concerning the nature of judicial review is Bruce v Cole (1998) 45 NSWLR 163. See also, Justice John Basten, ‘Judicial Review in State Jurisdiction’ [2016] AIAdminLawF 12; (2016) 84 AIAL Forum 10.

^[4] The leading academic text on judicial review of administrative action in NSW is Aronson and Groves, Judicial Review of Administrative Action, 5th ed, 2013 (Lawbook Co, Sydney; See also, Robinson SC (ed), Judicial Review – The Laws of Australia, 2015 (Thomson Reuters)).

^[5] Kirk v Industrial Court of NSW (2010) 239 CLR 531; ‘The Centrality of Jurisdictional Error’, Hon J Spigelman AC (2010) 21 Public Law Review 77)

^[6] See the discussion by Kirby J of the discretion and the relevant cases in Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146.

^[7] [2012] NSWCA 13; (2012) 83 NSWLR 302 (McColl, Basten and Macfarlan JJA).

^[8] [2016] NSWCA 173.

^[9] (1986) 159 CLR 656.

^[10] Ibid, 670 (Gibbs CJ) and 676 (Deane J).

^[11] See Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 734C to 735C (Priestley JA, with Handley and Powell JJA agreeing), adopting in part Sperling J’s decision in Kennedy Miller Television Pty Limited v Lancken, New South Wales Supreme Court, unreported, 1 August 1997 (BC9703385).

^[12] [2006] NSWCA 284; (2006) 67 NSWLR 372, [24] (Handley JA; McColl JA agreeing).

^[13] Ibid, [106] (Basten JA; McColl JA agreeing).

^[14] (2005) HCA 24; (2005) 228 CLR 294, [80] (McHugh J; Kirby J agreeing).

^[15] For examples, see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, [82]; and Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, [60]-[70].

^[16] [1995] HCA 58; (1995) 184 CLR 163.

^[17] [2001] HCA 30; (2001) 206 CLR 323, [61]-[63].

^[18] (2010) 239 CLR 531, [60]-[70].

^[19] [2002] HCA 11; (2002) 209 CLR 597, [51]-[53].

^[20] [2003] HCA 2; (2003) 211 CLR 476, 508 [83]; [2000] HCA 57; (2000) 204 CLR 82; (2001) 206 CLR 57.

^[21] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332.