A NSW Administrative Law Refresher
A NSW Administrative Law Refresher

A NSW Administrative Law Refresher

A paper delivered by Mark Robinson SC to a conference of the PAVE Peace Group at Parliament House, Sydney on 4 April 2011

I am asked to speak to you today on some matters pertaining to administrative law in New South Wales. I last spoke with you on the 23 December 2003 with a paper titled “Practical Justice and Procedural Fairness”. The rules of procedural fairness or natural justice and the rules relating to the bias or apprehended bias of some judicial and tribunal members are some of the most colourful and interesting cases in law.

Today, I will give you a brief refresher on administrative law in NSW.  I will not cover the Commonwealth or the other states and territories – or you will never get to leave the building. There is too much.

I will talk about:

  • Administrative law process and remedies in New South Wales;
  • The primary tenets of administrative law;
  • Merits review and judicial review in NSW (the legality/merits distinction);
  • Update on jurisdictional error and the grounds of judicial review;
  • Apprehended Bias and the Document “Retention” Policy – British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283;
  • Administrative Law Reform in NSW – Statutory Judicial Review?

Administrative Law in NSW

The full range and scope of administrative law process and remedies should be first identified.  At its most broad, administrative law in New South Wales relates to or concerns the following:

  1. Self-help remedies or processes that might 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 so) for a person superior in employment status to the original administrative decision-maker to look at and re-make the subject decision (usually afresh).
  3. Need the Documents? – Freedom of Information (now under Government Information (Public Access) Act 2009 (NSW) – decisions are subject to merits appeals to the Information Commissioner and then to the Administrative Decisions Tribunal of NSW (“ADT”));
  4. Breach of Privacy? – The Privacy Commissioner, and the ADT in administering the Privacy and Personal Information Protection Act 1998 (NSW); and,
  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? – The Independent Commission Against Corruption;
  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 applications – see; NSW Treasury Circular NSW TC 05/05, 29 June 2005.
  8. External 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, literally, from the very beginning, 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 General Division of the ADT is a leading example of an independent, external merits review body.
  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 (it usually arises in the Supreme Court of NSW, Common Law Division, Administrative Law List – by proceedings known as “judicial review” of administrative action).  This is usually the option of last resort for an applicant, and it is undertaken when all other options for challenge are not available;

Administrative law did not develop in a vacuum.

It was developed by the courts in England and Australia over 500 years and for good reason. Its purpose was to keep a check on inferior court judges and tribunals and quasi-judicial tribunals as well as to keep check on executive decision-makers so as to ensure they all acted lawfully and within the scope 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:

a. legality;
b. fairness;
c. participation;
d. accountability;
e. consistency;
f. rationality;
g. proportionality; and,
f. impartiality.

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”.

Judicial Review of Administrative Action in NSW

The leading academic text in this area is 1,023 pages long – Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed, 2009 (Lawbook Co, Sydney).

Framework and Procedure

The jurisdiction of the superior courts by way of judicial review of administrative action is a jurisdiction that was developed by the courts in accordance with the common law or general 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).

The relief granted (which is discretionary) may be to quash or set aside the decision, declare the decision invalid or void and, in some cases, to remit 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).

Judicial review in New South Wales lies largely within the realm of common law.

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) (“ADJR Act“) or the Judicial Review Act 1991 (Qld)] – although that might change soon. 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.  The discretionary factors are these.  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 ADT);
  • no useful result could ensue (futility);
  • the applicant has been guilty of unwarrantable delay, or,
  • 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[1]; also;
  • 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 of court-like process below.[2]

Ordinarily then, grounds of judicial review 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,
  • making an erroneous finding or reaching a mistaken conclusion,

leading to an excess of power or authority, will give 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.  As the High Court has indicated,[3] the obligation to accord procedural fairness may well stem from the common law; it is not something which is within the gift of statute law (albeit that legislation may affect its scope and content in a given circumstance)[4].  An obligation to accord procedural fairness will also arise where the legitimate expectations of a party are adversely affected by the exercise or proposed exercise of a particular power.  It is essentially a matter of seeking to ensure “fair-play in action”[5].

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

To this end, legal practitioners need to be aware of the Supreme Court Practice Note CL 3 dated 6 July 2007 which explains the operation of the Administrative Law List and some of the provisions of the Uniform Civil Procedure Rules 2005(NSW).

The primary statutory provisions concerned with properly invoking the Supreme Court’s judicial review jurisdiction (by way of the filing of a summons) are the following sections of the Supreme Court Act 1970 (NSW):

  • 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.

In the Uniform Civil Procedure Rules 2005, 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 rule 45.3, judicial review proceedings should all be assigned or transferred to the Administrative Law List.  Other UCPRs that must be checked are rule 1.18(b)&(c) – assignment of business; Part 49 (internal appeals); Part 50 (external appeals); and Part 51 (Court of Appeal).

Section 48 of the Supreme Court Act 1970 (NSW) 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
  • Obtaining 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.  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.  Oral evidence and cross examination is almost never required in judicial review matters.  If evidence is put on that is voluminous and is not required, one can expect significant criticism from the bench and maybe an adverse costs order.

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 reasons for decision but 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 “understanding of the applicable law and the reasoning processes leading to the decision”.

It can readily be seen that in a number of circumstances, an order of the Court requiring a decision-maker to provide his/her “understanding of the applicable law and the reasoning processes leading to the decision” might be an extremely useful forensic tool or weapon.

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 (1986) 159 CLR 656.  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, on occasion, there were “special circumstances” either in the relevant Act or in the principles of natural justice such that the general rule did not apply and reasons were required to be provided (see, Osmond at 670.5 (per Gibbs CJ) and 676.7 per Deane J).  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 – see, Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 734C to 735C (per 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).

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 (2006) 67 NSWLR 372 where the NSW Court of Appeal held that the Appeal Panel members in workers compensation had a duty to give full and proper reasons (at [24] per Handley JA with McColl JA agreeing) even though that was not expressly stated in the relevant legislation. The reasons were held to be inadequate and the Panel’s decision was set aside.  The Court indicated (at [106], per Basten JA with McColl JA agreeing) that the authorities that underpin Osmond’s case might “no longer be as definitive as they once were”.  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 it 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 Supreme Court Act 1970 (NSW) 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 – possibly except for denials of natural justice – see: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, at [80] (per McHugh, with Kirby J agreeing)).

Examples of jurisdictional errors of State tribunals and executive decision-makers include them:

– identifying a wrong 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 (see: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; and Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at [60] to [70].

Jurisdictional errors that may be committed by a tribunal or executive body (post Craig’s case) 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 (2001) 206 CLR 323 at [61]‑[63]) can also be discussed as follows:

‑ The definition of “jurisdictional error” in Craig’s case, is not exhaustive (Kirk’s case also held this at [60] to [70]).

‑ 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.

Further, doing the above results in the decision-maker exceeding the authority or powers given by the relevant statute (ie: committing a “jurisdictional error”).  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 – Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 esp at [51] to [53].

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 (2003) 211 CLR 476 at 508 [83]; Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82; and, Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57.

The remaining traditional 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. unreasonableness;
  8. proportionality (not presently available);
  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;
  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.

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 errors is capable of constituting error of law on the face of the record, and, if they are serious enough, they also constitute jurisdictional error or a constructive failure of the decision maker to exercise his or her jurisdiction (or both ot all three). By section 69(3)&(4) of the Supreme Court Act 1970 (NSW), the “record” of a tribunal includes the written reasons expressed for its “ultimate determination“.

Some Recent Decisions

I will look at one recent Supreme Court decision in the motor accidents area where the final determination of a “claims assessor” of the Motor Accidents Authority of NSW (“MAA“) was set aside by the Court for jurisdictional error or error of law on the face of the record.

In Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (re: Kriticos) (2010) 56 MVR 108; [2010] NSWSC 833 (Barr AJ)(30 July 2010) the insurer challenged the legal validity of a decision of claims assessor. At a claims assessment hearing, the matter was fully argued and he handed down an assessment of damages in the amount of $336,699. The claimant’s right leg was injured in the motor vehicle accident and some of her treating doctors expressed the opinion that she might have suffered from a condition known as Reflex Sympathetic Dystrophy (RSD), also known as Complex Regional Pain Syndrome (CRPS). In the medical reports that were before the assessor, the Court noted that although CRPS was mentioned a number of times (at [7]):

“None of the reports that mentioned CRPS, however, said exactly what the condition was, how it might arise, what symptoms it might produce, how it might progress and what the possible ultimate result might be for a person experiencing it.”

No expert gave oral evidence before the assessor and the assessor did not ask the parties for assistance in understanding the nature of CRPS.

In his reasons for decision, the claims assessor accepted that the claimant’s right leg was injured and that she was suffering from CRPS. The claims assessor said:

“I obtained information regarding reflex sympathetic dystrophy from Wikipedia. In Wikipedia, it is referred to a Complex Regional Pain Syndrome (CRPS) which is a chronic progressive disease characterised by severe pain, swelling and changes in the skin. The symptoms of CRPS usually manifest near the site of an injury, either major or minor, and usually spread beyond the original area. Symptoms may spread to involve the entire limb, and commonly, the opposite limb or other appendages.

Furthermore, it is stated the most common symptoms overall are burning and electrical like shooting pains. The patient may also experience muscle spasms, local swelling, increased sweating, changes in skin temperature and colour, softening and thinning of bones, joint tenderness or stiffness, restricted or painful movement, and changes in the nails, dry skin over the complete body, and finally rapid shedding of skin.

The pain of CRPS is continuous and may be heighten by emotional stress. Moving or touching the limb is often intolerable. Eventually the joints become stiff from disuse, and the skin, muscles and bone atrophy. The symptoms of CRPS vary in severity and duration.”

The insurer gave evidence which was accepted by the Court to the effect that Wikipedia is a community encyclopaedia which anyone can contribute to.  The publishers of Wikipedia do not vouch that it is completely correct and all the entries to it are not verified. The Court held (at [23]) that there was “a substantial risk that it contained errors” and that the claims assessor should have informed the parties that he was informing himself by that means and should have allowed them the opportunity to make submissions or put before him evidence from qualified medical practitioners.

Significantly, the Court accepted that if a tribunal, even one possessed of flexible procedures and not based on the rules of evidence, formed a view which went beyond the opinions expressed by the experts in evidence, fairness required that it be disclosed and the parties be permitted any opportunity to address it (at [18]).

Accordingly it was held that the claims assessor denied the insurer procedural fairness and the Court set aside the assessment decision remitting the matter to a different claims assessor.

Apprehended Bias Developments

The bias rule of procedural fairness is that a decision maker must not be personally biased (actual bias) or be seen by an informed observer to be biased in any way (apprehended or ostensible bias) in the hearing of or dealing with a matter during the course of making of a decision.

The rules in this area are broadly the same in respect of courts, tribunals and for executive decision makers (even expert executive decision-makers).

The apprehension of bias principle has its justification in the concept that judges, tribunal and statutory decision-makers should be independent and impartial. The essential question is whether there is a possibility (real and not remote) and not a probability that a decision-maker might not bring an impartial mind to the question to be determined (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]-[8]).  The question is answered by reference to whether the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue to be decided (ibid, at [33]).

Bias may arise from:

  1. interest – pecuniary or proprietary;
  2. conduct;
  3. association;
  4. extraneous information; or
  5. from some other circumstance (Ebner, ibid).

The High Court has stated that the apprehension of bias principle “admits of the possibility of human frailty” and “its application is as diverse as human fraility” (Ebner, ibid, at [7]).

In the case of administrative proceedings conducted in private (as, for example, the way that MAA motor accident claims assessment conferences are conducted) the appropriate apprehended bias rule might in future be stated in the following terms (from the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [28]:

“Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.”  (my emphasis)

Normally, if bias becomes an issue, it should be raised or dealt with by an applicant’s legal representative immediately upon the issue becoming apparent.  In court proceedings this might well occur while proceedings are being conducted.  Occurrences of bias can readily, albeit inadvertently, be waived by failing to raise the issue promptly and before the decision maker concerned.

Actual bias cases are rare.  They are normally clear cut and rarely become the subject of legal proceedings.  Apprehended or ostensible bias is not as straightforward.  There is a real potential for litigation where the perception of such bias arises.

Apprehended bias was considered by the High Court in Vakauta v Kelly (1989) 167 CLR 568. There, the Court examined comments made by Justice Hunt in the Supreme Court of NSW while he was hearing a personal injuries case.  The judge was making some observations about expert doctors in the early part of the proceedings.  The High Court determined that these comments amounted to ostensible or apprehended bias because they might lead to the conclusion, in the mind of the reasonable or fair-minded observer, that the judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand.  In that case, at page 572-3, the High Court said:

“The learned trial judge’s adverse comments about Dr. Lawson, Dr. Revai and Dr. Dyball in the course of the trial of the present case were indeed strong:

“that unholy trinity”; the G.I.O.’s “usual panel of doctors who think you can do a full week’s work without any arms or legs”; whose “views are almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously.”

His Honour below had indicated that he regarded those three medical practitioners as falling within a “particular category of doctors” to whom he had an adverse attitude.  He stated that he expressed his views “for the benefit of the present parties in the negotiations which were taking place.” The implication of that last comment would seem to have been that the parties should negotiate any settlement on the basis that his Honour would not be influenced by what those three doctors might say in evidence. In the event, only Dr. Lawson was called to give oral evidence. Dr. Revai’s written report was received in evidence. No evidence from Dr. Dyball was received.”

The High Court held that as counsel had failed to object to these remarks during the course of the hearing, that party had waived its right to complain about it. However, there were further remarks made by the judge after the hearing and in the reserved judgment itself (which came down in favour of the plaintiff) where the High Court held that there was plainly evidence of apprehended bias and it set aside the decision below.  For example, his Honour said in the judgment that the evidence of one of the doctors was “as negative as it always seems to be — and based as usual upon his non-acceptance of the genuineness of any plaintiff’s complaints of pain“.

The Document “Retention” Policy that Destroyed Documents

In British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283, the High Court considered an apprehended bias case where Judge Jim Curtis of the NSW Dust Diseases Tribunal was asked to recuse himself by one of the parties because he was about to hear a case that involved determination of the very same factual issue that had been decided adversely to the defendant party in an earlier component of the case. The issue concerned whether or not a cigarette manufacturer had deliberately devised and deployed a policy of selectively destroying pesky documents that might be called for in discovery or on subpoena in legal proceedings.  The primary witness to be called was to be the same witness called in the earlier proceedings.  This was also in circumstances where in a interlocutory ruling on discovery, the judge had found actual fraud on the defendant party as to its document retention policy in terms of the high test in section 125(1) of the Evidence Act 1995(NSW) (and not the “reasonable grounds” test in section 125(2)).

The High Court broadly agreed on the formulation of the correct legal test for ascertaining apprehended bias (for judges).  However, there was disagreement as to the attributes to be ascribed to the hypothetical observer.  The majority judgment was by Heydon, Kiefel and Bell JJ and the minority judgments were by French CJ and Gummow J.

The Court stated the accepted legal test for apprehended bias as being in the following terms (at [104]):

“The rule requires that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide [Livesey v New South Wales Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337]. The apprehension here raised is of pre-judgment; it is an apprehension that, having determined the existence of the policy in the earlier proceeding, Judge Curtis might not be open to persuasion towards a different conclusion in Mrs Laurie’s proceeding.”

As to the rationale for the apprehended bias rule, the High Court (majority) explained (at [139]-[140]):

“It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.

Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that [the defendant party] engaged in fraud and who has read his Honour’s reasons for that finding. Some further reference should be made to those reasons.” (footnotes omitted)

The Court of Appeal decision which held that Judge Curtis’s decision not to recuse himself was correct was set aside in the High Court which ordered that Judge Curtis be prohibited from further hearing or determining the Dust Diseases Tribunal proceedings.

Proposed Reform of Judicial Review in NSW

You will appreciate that in NSW, judicial review of administrative action is available only at common law (which is accessed via section 69 of the Supreme Court Act 1970 (NSW)).

Some other Australian jurisdictions have established a statutory right to judicial review that effectively constitutes an entire code (of reasons, standing, grounds of judicial review and relief).

The most recognised of these statutes is the Commonwealth’s Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). [6] It is essentially a codification of the common law judicial review that stripped away most of its historical complexities.  It was drawn up after Parliament received the Report of the Kerr Committee in 1971.  The Kerr Committee, established on the recommendation of the then Solicitor-General, Sir Anthony Mason, presented an entirely new structure for administrative law in Australia [7].

The ADJR Act celebrated its 30th anniversary in 2010.  It commenced operation on 1 October 1980. Sir Anthony Mason presented a paper in 2010 to the Australian Institute of Administrative Law[8] explaining his views as to the success of the “New Administrative Law” as it came to be known (together with the Commonwealth Administrative Appeals Tribunal, the Ombudsman and Freedom of Information legislation).

The success of the ADJR Act (and the adoption of very similar legislation in Queensland, Tasmania and the ACT) raises the question as to whether NSW should establish a similar statutory right to judicial review.

In March 2011, the NSW Attorney General released a discussion paper on this topic titled “Reform of Judicial Review in NSW“. It is on the AG’s “Lawlink” web site.

The discussion paper analyses the current operation of judicial review in NSW and reforms in other jurisdictions, with particular focus on the ADJR Act [in this regard the discussion paper also serves as an excellent research paper for busy practitioners].  It asks whether there is a need for reform of judicial review in NSW and, if so, what are the key issues that should be addressed in any reform measures. Specifically, the discussion paper asks:

* whether a statutory judicial review jurisdiction should be established,

* whether any such statutory jurisdiction should be modelled on the ADJR Act, or

* whether there are alternative options for the reform of common law judicial review in NSW.

The discussion paper also considers how to establish a statutory right to obtain a statement of reasons for decisions that might be subject to judicial review.

Apart from drawing attention to the availability of the grounds of judicial review and bringing into one place both the grounds and all of the available remedies in this area, I consider the major success of the ADJR Act to be that reasons are now provided in almost every Commonwealth decision.  If they are not provided, they can be sought in almost every case by reason of section 13 of the ADJR Act. In New South Wales, public sector decision-makers and Ministers still do not provide reasons in a range of circumstances where they are not compelled to do so. The common law does not require a statement of reasons to be provided in the ordinary case (Public Service Board (NSW) v Osmond (1986) 159 CLR 656).

Note that the Supreme Court Practice Note CL 3 dated 6 July 2007 which explains the operation of the Administrative Law List and some of the provisions of the Uniform Civil Procedure Rules 2005 also provides for a party asking the Court for a statement of reasons at directions hearings of administrative law matters. However, this remedy can only be deployed in litigation matters pursuant to section 69 of the Supreme Court Act 1970 (NSW). It would be convenient to have reasons prior to any such litigation.

Accordingly, the Attorney’s discussion of proposed reforms involving statement of reasons and a judicial review act are well worth considering.

Thank you

[1] See the discussion of the discretion and the relevant cases at Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 at [91]-[92] per Kirby J.

[2] Aronson and Dyer and Groves Judicial Review of Administrative Action, 4th edition, 2009, Law Book Co, Sydney at [12.175]. cf: Rodger v De Gelder (2011) 58 MVR 23; [2011] NSWCA 97 (Beazley, McColl and Macfarlan JJA)

[3] Kioa v West (1985) 159 CLR 550 at 576, 582-5, 632; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574-5; cf Refugee Review Tribunal, Re; Ex parte Aala  (2000) 75 ALJR 52 at [38]-[41].

[4] There remains some controversy as to the “precise jurisprudential character of the process of statutory interpretation that is necessarily involved in determining whether a duty (to afford procedural fairness) exists”: see- Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 at [53]-[54] (Spigelman CJ, with Allsop P and Sackville AJA agreeing) and Stewart v Ronalds (2009) 76 NSWLR 99 at [67]-[70] and [78] (Allsop P, Hodgson JA, Handley AJA).

[5] Ridge v Baldwin [1963] 1 QB 539 at 578 per Harman LJ; and TCN Channel Nine Pty Ltd v ABT (1992) 28 ALD 829 at 858.

[6] Sir Anthony Mason “Delivering Administrative Justice: Looking Back With Pride, Moving Forward With Concern” (2010) 64 AIAL Forum 4; see also Sir Anthony Mason’s 2001 paper “Administrative Law reform: The vision and the reality” Geoffrey Lindell, ed, The Mason Papers, Federation Press, 2007 at page 167.

[7] The Kerr Committee and the related Bland and Ellicott Committee Reports are each reproduced in The Making of Commonwealth Administrative Law compiled by Robin Creyke and John McMillan in 1996 and published by the Centre for International and Public Law, Law Faculty Australian National University

[8] Sir Anthony Mason “Delivering Administrative Justice: Looking Back with Pride, Moving Forward with Concern” (2010) 64 AIAL Forum 4.  See also, Sir Anthony Mason’s 2001 paper “Administrative Law reform: The vision and the reality” in Geoffrey Lindell, ed, The Mason Papers, Federation press, 2007 at page 167.

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