Gilmour J also said: "Kirk establishes that State parliaments cannot strip the supreme courts of the power to review for jurisdictional error. But does that mean that they cannot curtail by legislation any aspect of that jurisdiction? For example, procedural fairness is typically required of primary decision-makers. Failure to accord procedural fairness, where required, is a well-established species of jurisdictional error. Is it now beyond the competence of State parliaments to provide that decisions made under an enactment will be valid for all purposes even if made without according procedural fairness?
Gilmour J further states: "Accordingly, at least five important propositions emerge from the judgment in Kirk. 1. Chapter III of the Commonwealth Constitution requires that in each State there be a body fitting the description of “the Supreme Court of (a) State”. 2. A defining characteristic of such a body is its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power.See: Kirk (2010) 239 CLR 531 at [98]. 3. A privative provision in State legislation which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error is beyond the powers of the State legislature. This is because such a provision would remove from the relevant Supreme Court one of its defining characteristics.See: Kirk (2010) 239 CLR 531 at [99]. 4. Not every privative provision will be invalid. Rather, the constitutional significance of the supervisory jurisdiction of the State supreme courts underpins the need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. See: Kirk (2010) 239 CLR 531 at [100]. 5. The categories of jurisdictional error are not closed.Kirk (2010) 239 CLR 531 at [73]. It is therefore for the supreme courts and, ultimately, the High Court, to determine, on a case-by-case basis, the limits of the supreme courts’ irreductible powers to prevent and correct errors by inferior courts and tribunals.
NOW IT IS DIFFERENT TO WHAT HAPPENED BEFORE. NOW THE LEARNED JUSTICE CHANEY WANTS TO DO JUSTICE IN ACCORDANCE WITH THE LAW. HOWEVER, THE LPCC AS THE DISCIPLING BODY FOR LAWYERS THROUGH ITS OFFICER MR. FLETCHER IS VISIBLY SEEN NOT TO HAVE THE RIGHT ATTITUDE. HE IS WILFULLY BLIND TO THE FACTS: 1) THAT INVOICE NO 201702 DATED 10.2.2006 HAS BEEN ADMITTED BY THE SUPREME COURT REGISTRY TO BE IN ERROR. 2) THAT THE COURT FEES FOR INVOICE NO. 202483 DATED 16.2.2006 HAS NEVER BEEN PAID FOR BY MR. DAVID TAYLOR. 3) MR DAVID TAYLOR IS NOT ABLE TO PROVIDE PROOFS TO MAURICE LAW THAT HE HAD NEVER PAID THE COURT FEES OF $654.20 TO THE SUPREME COURT REGISTRY AT ANY MATERIAL TIMES IN CIV1131 OF 2006. HE WAS ORDERED BY PRESIDENT CHANEY OF SAT TO PROVIDE THIS INFORMATION ON 29.11.2011 IN VR158 OF 2011. 4) MR. DAVID TAYLOR HAD PERJURED HIMSELF IN HIS AFFIDAVIT SWORN ON 29.3.2007 IN CIV1131 OF 2006. HOW COME THE LPCC IS SEEN NOT TO BE WORKING IN THE PUBLIC INTERESTS? WHY IS MR. FLETCHER VISIBLY SEEN NOT TO BE FAIR AS A COURT OFFICER? WHO IS MR. FLETCHER TRYING TO PROTECT? WHO IS DIRECTING MR. FLETCHER TO DO THINGS THAT HE IS NOT SUPPOSED TO DO AS A COURT OFFICER? WHY IS THERE A COVER-UP WHEN THE FACTS ARE PLAIN AND EVERYBODY CAN SEE IT? WHY IS LPCC REFUSING TO ANSWER QUESTIONS AND ITS CONSEQUENT REFUSAL IS INDICATING THAT IT IS ADMITTING TO THOSE FACTS?
THE JURISDICTIONAL ERRORS OF JUSTICE KEN MARTIN IN CIV 1903 OF 2008 IN THE THIES CASE OR OF MASTER SANDERSON IN CIV 1775 OF 2008 IN NANCY HALL CASE MUST BE CORRECTED BY THOSE ERRING JUDGES AND SUBJECT TO THE POLITICAL CONTROL OF THE ATTORNEY GENERAL OF WESTERN AUSTRALIA: Brennan J in: Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 said: “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 to which they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
THE INTEGRITY FUNCTIONS OF THE WA GOVERNMENT IS THE RESPONSIBILITY OF THE EXECUTIVE BRANCH OF THE WA GOVERNMENT INCLUDING THE ATTORNEY GENERAL OF WA. THE STATUTORY BODIES WHICH PERFORMS THESE INTEGRITY FUNCTIONS ARE THE WA OMBUDSMAN, THE CRIME CORRUPTION COMMISSION OF WA AND THE PARLIAMENTARY INSPECTOR. IF THEY DO NOT PERFORM THE INTEGRITY FUNCTIONS OF THE WA GOVERNMENT,THE CABINET OR THE EXECUTIVE SHOULD DO SOMETHING ABOUT THIS. IN THE FINAL ANALYSIS, THE PEOPLE OF WESTERN AUSTRALIA SHOULD DECIDE THOSE WHO REPRESENTS THEM IN PARLIAMENT SHOULD BE ULTIMATELY RESPONSIBLE FOR THE INTEGRITY FUNCTIONS OF OUR WA GOVERNMENT. THE PEOPLE OF WA SHOULD NOT BE TAKEN FOR A RIDE: The function of integrity institutions, including judicial review by courts,was to ensure that the community-wide expectation of how governments should operate in practice was realised. This idea of integrity goes beyond matters of “legality”. Integrity encompasses maintenance of fidelity to the public purposes for the pursuit of which an institution is created and the application of the public values, including procedural values, which the institution is expected to obey.See generally J J Spigelman AIAL National Lecture Series supra. I note that the first lecture in the series was published as J J Spigelman ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724.
A JUDGE CAN COMMIT JURISDICTIONAL JURISDICTIONAL ERRORS IN ONE OF TWO WAYS: HE EITHER ACTED BEYOND HIS POWERS OR HE DOES SOMETHING WRONG WITHIN HIS POWERS: Furthermore, as Justice Hayne put it in Ex parte Aala: “The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error when the decision-maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction … The former kind of error concerns departures from limits upon the exercise of the power the latter does not.”See Ex parte Aala supra at [163]See THE CENTRALITY OF JURISDICTIONAL ERROR KEYNOTE ADDRESS BY THE HONOURABLE J J SPIGELMAN AC CHIEF JUSTICE OF NEW SOUTH WALES AGS ADMINISTRATIVE LAW SYMPOSIUM:COMMONWEALTH AND NEW SOUTH WALES at: http://www.hrnicholls.com.au/articles/Other/spigelman250310[1].pdf
COMMISSIONER HERRON IN DCA 6 OF 2008 IN THE THIES CASES SAYS HE HAS NO JURISDICTION AND YET HE WENT ON TO MAKE THE DECISION AGAINST ME. THIS IS AN EXAMPLE OF JURISDICTIONAL ERROR WHICH RENDERS COMMISSIONER HERRON'S DECISION NULL AND VOID: It referred first to the general proposition from Craig that there is jurisdictional error on the part of an inferior court: “If it mistakenly asserts or denies the existence of jurisdictional error 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.” See Kirk v Industrial Relations Commission [2010] HCA 1 at [72]; (2010) 84 ALJR 154
THE JUDGES LIKE MARTIN J OR CHANEY J OF SAT WHO MAKE JURISDICTIONAL ERRORS WHICH REFLECTS UPON AN ILLEGALITY AND NOT MERELY ADMINISTRATIVE DECISIONS BASED ON THE MERITS OF THE CASES HAVE THEIR RESPECTIVE RESPONSIBILITIES TO REPAIR THEM SUBJECT TO POLITICAL CONTROL IF NECESSARY: The usage in the 1990s of jurisdictional error as a concept, though not in terms, can be traced to the following well-known statement by Brennan J in Attorney-General (NSW) v Quin 1996) 185 CLR 259 at 272 later approved in the joint judgment of four members of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:(1990) 170 CLR 1 at 35-36.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. See: the article by Justice J Gilmour entitled: Kirk: Newton’s apple fell at: http://samuelgriffith.org.au/docs/vol22/vol22chap10.pdf.
KEN MARTIN J AND CHANEY J MUST DELIVER JUSTICE IN ACCORDANCE WITH THE LAW BECAUSE THE PURPOSE OF THE SUPREME COURT OF WA OR THE STATE ADMINISTRATIVE TRIBUNAL IS TO DELIVER JUSTICE TO THE PARTIES COMING AS LITIGANTS BEFORE THEM. NOT DELIVERING JUSTICE IN ACCORDANCE WITH THE LAW IS SYNONYMOUS WITH COMMITTING JURISDICTIONAL ERRORS; SEE THE MEANING OF JURISDICTIONAL ERROR BY JUSTICE J GILMOUR: The year before (1995) five members of the High Court in a joint judgment in Craig v South Australia had directly employed the term “jurisdictional error” to describe an administrative tribunal falling into error 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 resulting in it exceeding its authority or powers. Errors that can be redressed on review are not limited to errors about the existence of jurisdiction to make a decision, or exercise some power. Of course they include those kinds of errors; but they also include certain kinds of errors that are made in the course of exercising a jurisdiction that has undoubtedly been engaged. Errors of this kind are reviewable as jurisdictional errors because they go to the existence of jurisdiction. But the courts have recognised other kinds of errors as “jurisdictional”, errors typically committed even where jurisdiction properly exists, including: a. failure to make a genuine attempt to evaluate evidentiary material; b. failure to consider relevant material or factors; c. importantly, failure to accord procedural fairness, that is, to afford a fair hearing, and an unbiased determination; and d. in the area of discretions, exercising a discretionary power so unreasonably that no reasonable repository of the power could exercise it in that way – this is the so-called “Wednesbury unreasonableness”. All these kinds of errors are regarded as jurisdictional because they are perceived as fundamentally undermining the decision-making process in a way that is incompatible with the true scope of the decision-maker’s functions and powers:See: the article by Justice J Gilmour entitled: Kirk: Newton’s apple fell at: http://samuelgriffith.org.au/docs/vol22/vol22chap10.pdf
THE DECISIONS OF INFERIOR COURTS INCLUDING THOSE OF A SINGLE JUDGE OF THE SUPREME COURT OF WA ARE SUBJECT TO JUDICIAL REVIEW; THE LATTER BY THE COURT OF APPEAL OF THE SUPREME COURT OF WA. THESE CAN BE EITHER JURISDICTIONAL ERRORS WITHIN POWERS OR JURISDICTIONAL ERRORS BEYOND POWERS: BOTH ARE RIGHTLY TO BE CONSTRUED AS JURISDICTIONAL EXCESSES OF THE INFERIOR COURTS. Justice Gilmour further said: The Court, in Kirk,34 gave three examples, referred to in Craig,35 of an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of that court’s functions or powers: (a) the absence of a jurisdictional fact;36 (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing
DIFFERENCE BETWEEN A TRIBUNAL AND A COURT OF LAW: JURISDICTIONAL ERRORS OF INFERIOR COURTS INCLUDING THOSE OF A SINGLE JUDGE OF THE SUPREME COURT ARE THE SUBJECT OF JUDICIAL REVIEW WHICH IS NOT AN APPEAL PROCESS: In Craig v South Australia at 177 it was said: "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...
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...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 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 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".
ORDINARY COURTS OF LAW:THE ORDINARY JURISDICTION OF THE ORDINARY COURTS OF WA IRRESPECTIVE OF WHETHER THEY ARE INFERIOR COURTS OR NOT, MUST DECIDE THE CASES BEFORE THEM BASED ON THE FACTS AND THE LAW. IF KEN MARTIN J OR CHANEY J DID NOT DECIDE ON THE LAW OR THE FACTS OF THE CASES BEFORE THEM, THEIR DECISIONS ARE SUBJECT TO THE APPEAL PROCESS WHICH IS PROVIDED FOR BY THE STATUTE. THE APPEAL PROCESS IS RESTRICTIVE IN THAT LEAVE IS OFTEN REQUIRED. THE APPEAL JUDGES MAY BE ABLE TO OBSTRUCT JUSTICE TO THE LITIGANT BY EITHER EVADING THE ISSUES OF FACTS OR LAW BEFORE THEM. BUT THEY CANNOT EVADE THEM EFFECTIVELY BECAUSE THEY HAVE TO PROVIDE THE REASONS FOR THEIR DECISIONS. IT IS FROM THEIR WRITTEN JUDGEMENTS THAT A LITIGANT CAN FIND OUT IF THE JUSTICES WERE HONEST IN DEALING WITH THE CASES BEFORE THEM. NO ONE CAN ESCAPE THE RIGOURS OF THE LAW AS EVERYONE IS SUBJECT TO THE LAW. THAT IS WHAT IS KNOWN AS THE PRINCIPLE OF THE RULE OF LAW. EVEN JUDGES ARE SUBJECT TO THE LAW AND THEY MUST OBEY THEM. Their Honours continued at 179-180: "In contrast [to an administrative tribunal], 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 on 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." Parker J: Ex Parte: & Ors v Warwick John Flint & Ors [1998] WASC 201 (24 June 1998)
WITH DUE RESPECT TO HIS HONOUR PARKER J, WHAT HE SAID ABOUT JURISDICTIONAL ERROR IN THE ORDINARY COURTS AS QUOTED ABOVE IS NOT QUITE CORRECT: See What GILMOUR J said: "Importantly, by virtue of the appellate jurisdiction of the High Court, the exercise of the supervisory jurisdiction of the State supreme courts is ultimately subject to the superintendence of the High Court as the “Federal Supreme Court” in which section 71 of the Constitution vests the judicial power of the Commonwealth.See:Kirk (2010) 239 CLR 531 at [98]. There being but one common law of Australia, the exercise of supervisory jurisdiction exercised by the State supreme courts proceeds according to principles established by the High Court. As the joint judgment noted: To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of “distorted positions”.See: Professor Louis Jaffe, “Judicial Review: Constitutional and Jurisdictional Fact”, Harvard Law Review, vol 70 (1957) 953 at 963 And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.See:Kirk (2010) 239 CLR 531 at [105].
THE LEGISLATION GOVERNING THE SUPREME COURT OF WESTERN AUSTRALIA SAYS THAT THE DECISION OF EITHER ITS SINGLE JUDGE OF APPEAL OR THE DECISION OF ITS COURT OF APPEAL REGISTRAR ARE RESPECTIVELY SUBJECT TO THE JUDICIAL REVIEW OF THE COURT OF APPEAL OF THE SUPREME COURT OF WESTERN AUSTRALIA. THE DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF WA IS EITHER APPEALABLE TO THE COURT OF APPEAL BY WAY OF LEAVE APPLICATION OR BY JUDICIAL REVIEW AS PROVIDED BY OTHER PROVISIONS OF THE SUPREME COURT ACT, 1935, FOR EXAMPLE TO CANCEL A TECHNICAL ERROR BY S.33 WITHOUT GOING THROUGH AN APPEAL PROCESS, OR BY THE JUDGE OF THE SUPREME COURT RESERVING DECISION FOR THE COURT OF APPEAL JUDGES UNDER S.43 OR BY S.49 FOR A NEW TRIAL OF THE DISPUTED ISSUES OR BY S.26 FOR A DECLARATION OF THE DISPUTED ISSUES: Section 167(1)(ia)of the Supreme Court Act, 1935 WA: Rules of court may be made under this Act, by the judges of the Supreme Court, for allowing the Court of Appeal to review any decision made by a single judge of appeal or the Court of Appeal Registrar. This means that the Court of Appeal of the Supreme Court of WA has the judicial review power over that of a single judge or over the decision of the Court of Appeal Registrar.
Gilmour J also said:
ReplyDelete"Kirk establishes that State parliaments cannot strip the supreme courts of the power to review
for jurisdictional error. But does that mean that they cannot curtail by legislation any aspect of that jurisdiction? For example, procedural fairness is typically required of primary decision-makers.
Failure to accord procedural fairness, where required, is a well-established species of jurisdictional error. Is it now beyond the competence of State parliaments to provide that decisions made under an enactment will be valid for all purposes even if made without according procedural fairness?
Gilmour J further states:
ReplyDelete"Accordingly, at least five important propositions emerge from the judgment in Kirk.
1. Chapter III of the Commonwealth Constitution requires that in each State there be a body
fitting the description of “the Supreme Court of (a) State”.
2. A defining characteristic of such a body is its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power.See: Kirk (2010) 239 CLR 531 at [98].
3. A privative provision in State legislation which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error is beyond the powers of the State legislature. This is because such a provision would remove from the relevant Supreme Court one of its defining
characteristics.See: Kirk (2010) 239 CLR 531 at [99].
4. Not every privative provision will be invalid. Rather, the constitutional significance of the supervisory jurisdiction of the State supreme courts underpins the need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. See: Kirk (2010) 239 CLR 531 at [100].
5. The categories of jurisdictional error are not closed.Kirk (2010) 239 CLR 531 at [73].
It is therefore for the supreme courts and,
ultimately, the High Court, to determine, on a case-by-case basis, the limits of the supreme
courts’ irreductible powers to prevent and correct errors by inferior courts and tribunals.
NOW IT IS DIFFERENT TO WHAT HAPPENED BEFORE. NOW THE LEARNED JUSTICE CHANEY WANTS TO DO JUSTICE IN ACCORDANCE WITH THE LAW. HOWEVER, THE LPCC AS THE DISCIPLING BODY FOR LAWYERS THROUGH ITS OFFICER MR. FLETCHER IS VISIBLY SEEN NOT TO HAVE THE RIGHT ATTITUDE. HE IS WILFULLY BLIND TO THE FACTS:
ReplyDelete1) THAT INVOICE NO 201702 DATED 10.2.2006 HAS BEEN ADMITTED BY THE SUPREME COURT REGISTRY TO BE IN ERROR.
2) THAT THE COURT FEES FOR INVOICE NO. 202483 DATED 16.2.2006 HAS NEVER BEEN PAID FOR BY MR. DAVID TAYLOR.
3) MR DAVID TAYLOR IS NOT ABLE TO PROVIDE PROOFS TO MAURICE LAW THAT HE HAD NEVER PAID THE COURT FEES OF $654.20 TO THE SUPREME COURT REGISTRY AT ANY MATERIAL TIMES IN CIV1131 OF 2006. HE WAS ORDERED BY PRESIDENT CHANEY OF SAT TO PROVIDE THIS INFORMATION ON 29.11.2011 IN VR158 OF 2011.
4) MR. DAVID TAYLOR HAD PERJURED HIMSELF IN HIS AFFIDAVIT SWORN ON 29.3.2007 IN CIV1131 OF 2006.
HOW COME THE LPCC IS SEEN NOT TO BE WORKING IN THE PUBLIC INTERESTS?
WHY IS MR. FLETCHER VISIBLY SEEN NOT TO BE FAIR AS A COURT OFFICER?
WHO IS MR. FLETCHER TRYING TO PROTECT?
WHO IS DIRECTING MR. FLETCHER TO DO THINGS THAT HE IS NOT SUPPOSED TO DO AS A COURT OFFICER?
WHY IS THERE A COVER-UP WHEN THE FACTS ARE PLAIN AND EVERYBODY CAN SEE IT?
WHY IS LPCC REFUSING TO ANSWER QUESTIONS AND ITS CONSEQUENT REFUSAL IS INDICATING THAT IT IS ADMITTING TO THOSE FACTS?
THE JURISDICTIONAL ERRORS OF JUSTICE KEN MARTIN IN CIV 1903 OF 2008 IN THE THIES CASE OR OF MASTER SANDERSON IN CIV 1775 OF 2008 IN NANCY HALL CASE MUST BE CORRECTED BY THOSE ERRING JUDGES AND SUBJECT TO THE POLITICAL CONTROL OF THE ATTORNEY GENERAL OF WESTERN AUSTRALIA:
ReplyDeleteBrennan J in: Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 said:
“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 to which they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
THE INTEGRITY FUNCTIONS OF THE WA GOVERNMENT IS THE RESPONSIBILITY OF THE EXECUTIVE BRANCH OF THE WA GOVERNMENT INCLUDING THE ATTORNEY GENERAL OF WA. THE STATUTORY BODIES WHICH PERFORMS THESE INTEGRITY FUNCTIONS ARE THE WA OMBUDSMAN, THE CRIME CORRUPTION COMMISSION OF WA AND THE PARLIAMENTARY INSPECTOR. IF THEY DO NOT PERFORM THE INTEGRITY FUNCTIONS OF THE WA GOVERNMENT,THE CABINET OR THE EXECUTIVE SHOULD DO SOMETHING ABOUT THIS. IN THE FINAL ANALYSIS, THE PEOPLE OF WESTERN AUSTRALIA SHOULD DECIDE THOSE WHO REPRESENTS THEM IN PARLIAMENT SHOULD BE ULTIMATELY RESPONSIBLE FOR THE INTEGRITY FUNCTIONS OF OUR WA GOVERNMENT. THE PEOPLE OF WA SHOULD NOT BE TAKEN FOR A RIDE:
ReplyDeleteThe function of integrity institutions, including judicial review by courts,was to ensure that the community-wide expectation of how governments should operate in practice was realised. This idea of integrity goes beyond matters of “legality”. Integrity encompasses
maintenance of fidelity to the public purposes for the pursuit of which an institution is created and the application of the public values, including procedural values, which the institution is expected to obey.See generally J J Spigelman AIAL National Lecture Series supra. I note that the first lecture in the series was published as J J Spigelman ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724.
A JUDGE CAN COMMIT JURISDICTIONAL JURISDICTIONAL ERRORS IN ONE OF TWO WAYS: HE EITHER ACTED BEYOND HIS POWERS OR HE DOES SOMETHING WRONG WITHIN HIS POWERS:
ReplyDeleteFurthermore, as Justice Hayne put it in Ex parte Aala:
“The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error when the decision-maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction … The former kind of error concerns departures from limits upon the exercise of the power the latter does not.”See Ex parte Aala supra at [163]See THE CENTRALITY OF JURISDICTIONAL ERROR KEYNOTE ADDRESS
BY THE HONOURABLE J J SPIGELMAN AC CHIEF JUSTICE OF NEW SOUTH WALES AGS ADMINISTRATIVE LAW SYMPOSIUM:COMMONWEALTH AND NEW SOUTH WALES
at: http://www.hrnicholls.com.au/articles/Other/spigelman250310[1].pdf
COMMISSIONER HERRON IN DCA 6 OF 2008 IN THE THIES CASES SAYS HE HAS NO JURISDICTION AND YET HE WENT ON TO MAKE THE DECISION AGAINST ME. THIS IS AN EXAMPLE OF JURISDICTIONAL ERROR WHICH RENDERS COMMISSIONER HERRON'S DECISION NULL AND VOID:
ReplyDeleteIt referred first to the general proposition from Craig that there is jurisdictional error on the part of an inferior court:
“If it mistakenly asserts or denies the existence of jurisdictional error 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.”
See Kirk v Industrial Relations Commission [2010] HCA 1 at [72]; (2010) 84 ALJR 154
THE JUDGES LIKE MARTIN J OR CHANEY J OF SAT WHO MAKE JURISDICTIONAL ERRORS WHICH REFLECTS UPON AN ILLEGALITY AND NOT MERELY ADMINISTRATIVE DECISIONS BASED ON THE MERITS OF THE CASES HAVE THEIR RESPECTIVE RESPONSIBILITIES TO REPAIR THEM SUBJECT TO POLITICAL CONTROL IF NECESSARY:
ReplyDeleteThe usage in the 1990s of jurisdictional error as a concept, though not in terms, can be traced to the following well-known statement by Brennan J in Attorney-General (NSW) v Quin
1996) 185 CLR 259 at 272 later approved in the joint judgment of four members of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:(1990) 170 CLR 1 at 35-36.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. See: the article by Justice J Gilmour entitled: Kirk: Newton’s apple fell at: http://samuelgriffith.org.au/docs/vol22/vol22chap10.pdf.
KEN MARTIN J AND CHANEY J MUST DELIVER JUSTICE IN ACCORDANCE WITH THE LAW BECAUSE THE PURPOSE OF THE SUPREME COURT OF WA OR THE STATE ADMINISTRATIVE TRIBUNAL IS TO DELIVER JUSTICE TO THE PARTIES COMING AS LITIGANTS BEFORE THEM. NOT DELIVERING JUSTICE IN ACCORDANCE WITH THE LAW IS SYNONYMOUS WITH COMMITTING JURISDICTIONAL ERRORS; SEE THE MEANING OF JURISDICTIONAL ERROR BY JUSTICE J GILMOUR:
ReplyDeleteThe year before (1995) five members of the High Court in a joint judgment in Craig v South
Australia had directly employed the term “jurisdictional error” to describe an administrative tribunal falling into error 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 resulting in it exceeding its authority or powers.
Errors that can be redressed on review are not limited to errors about the existence of jurisdiction to make a decision, or exercise some power. Of course they include those kinds of errors; but they also include certain kinds of errors that are made in the course of exercising a jurisdiction that has undoubtedly been engaged. Errors of this kind are reviewable as jurisdictional errors because they go to the existence of jurisdiction. But the courts have recognised other kinds of errors as “jurisdictional”, errors typically
committed even where jurisdiction properly exists, including:
a. failure to make a genuine attempt to evaluate evidentiary material;
b. failure to consider relevant material or factors;
c. importantly, failure to accord procedural fairness, that is, to afford a fair hearing, and an unbiased determination; and
d. in the area of discretions, exercising a discretionary power so unreasonably that no reasonable repository of the power could exercise it in that way – this is the so-called “Wednesbury unreasonableness”.
All these kinds of errors are regarded as jurisdictional because they are perceived as fundamentally undermining the decision-making process in a way that is incompatible with the true scope of the decision-maker’s functions and powers:See: the article by Justice J Gilmour entitled: Kirk: Newton’s apple fell at: http://samuelgriffith.org.au/docs/vol22/vol22chap10.pdf
THE DECISIONS OF INFERIOR COURTS INCLUDING THOSE OF A SINGLE JUDGE OF THE SUPREME COURT OF WA ARE SUBJECT TO JUDICIAL REVIEW; THE LATTER BY THE COURT OF APPEAL OF THE SUPREME COURT OF WA. THESE CAN BE EITHER JURISDICTIONAL ERRORS WITHIN POWERS OR JURISDICTIONAL ERRORS BEYOND POWERS: BOTH ARE RIGHTLY TO BE CONSTRUED AS JURISDICTIONAL EXCESSES OF THE INFERIOR COURTS.
ReplyDeleteJustice Gilmour further said:
The Court, in Kirk,34 gave three examples, referred to in Craig,35 of an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of that court’s functions or powers:
(a) the absence of a jurisdictional fact;36
(b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing
DIFFERENCE BETWEEN A TRIBUNAL AND A COURT OF LAW: JURISDICTIONAL ERRORS OF INFERIOR COURTS INCLUDING THOSE OF A SINGLE JUDGE OF THE SUPREME COURT ARE THE SUBJECT OF JUDICIAL REVIEW WHICH IS NOT AN APPEAL PROCESS:
ReplyDeleteIn Craig v South Australia at 177 it was said:
"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...
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...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 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 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".
ORDINARY COURTS OF LAW:THE ORDINARY JURISDICTION OF THE ORDINARY COURTS OF WA IRRESPECTIVE OF WHETHER THEY ARE INFERIOR COURTS OR NOT, MUST DECIDE THE CASES BEFORE THEM BASED ON THE FACTS AND THE LAW. IF KEN MARTIN J OR CHANEY J DID NOT DECIDE ON THE LAW OR THE FACTS OF THE CASES BEFORE THEM, THEIR DECISIONS ARE SUBJECT TO THE APPEAL PROCESS WHICH IS PROVIDED FOR BY THE STATUTE. THE APPEAL PROCESS IS RESTRICTIVE IN THAT LEAVE IS OFTEN REQUIRED. THE APPEAL JUDGES MAY BE ABLE TO OBSTRUCT JUSTICE TO THE LITIGANT BY EITHER EVADING THE ISSUES OF FACTS OR LAW BEFORE THEM. BUT THEY CANNOT EVADE THEM EFFECTIVELY BECAUSE THEY HAVE TO PROVIDE THE REASONS FOR THEIR DECISIONS. IT IS FROM THEIR WRITTEN JUDGEMENTS THAT A LITIGANT CAN FIND OUT IF THE JUSTICES WERE HONEST IN DEALING WITH THE CASES BEFORE THEM. NO ONE CAN ESCAPE THE RIGOURS OF THE LAW AS EVERYONE IS SUBJECT TO THE LAW. THAT IS WHAT IS KNOWN AS THE PRINCIPLE OF THE RULE OF LAW. EVEN JUDGES ARE SUBJECT TO THE LAW AND THEY MUST OBEY THEM.
ReplyDeleteTheir Honours continued at 179-180:
"In contrast [to an administrative tribunal], 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 on 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."
Parker J: Ex Parte: & Ors v Warwick John Flint & Ors [1998] WASC 201 (24 June 1998)
WITH DUE RESPECT TO HIS HONOUR PARKER J, WHAT HE SAID ABOUT JURISDICTIONAL ERROR IN THE ORDINARY COURTS AS QUOTED ABOVE IS NOT QUITE CORRECT:
ReplyDeleteSee What GILMOUR J said:
"Importantly, by virtue of the appellate jurisdiction of the High Court, the exercise of the supervisory jurisdiction of the State supreme courts is ultimately subject to the superintendence of the High Court as the “Federal Supreme Court” in which section 71 of the Constitution vests the judicial power of the Commonwealth.See:Kirk (2010) 239 CLR 531 at [98].
There being but one common law of Australia, the exercise of supervisory jurisdiction exercised by the State supreme courts proceeds according to principles established by the High Court. As the joint judgment noted:
To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that
Court would be to create islands of power immune from supervision and restraint. It
would permit what Jaffe described as the development of “distorted positions”.See: Professor Louis Jaffe, “Judicial Review: Constitutional and Jurisdictional Fact”, Harvard Law Review, vol 70 (1957) 953 at 963
And as already demonstrated, it would remove from the relevant State Supreme Court one of
its defining characteristics.See:Kirk (2010) 239 CLR 531 at [105].
THE LEGISLATION GOVERNING THE SUPREME COURT OF WESTERN AUSTRALIA SAYS THAT THE DECISION OF EITHER ITS SINGLE JUDGE OF APPEAL OR THE DECISION OF ITS COURT OF APPEAL REGISTRAR ARE RESPECTIVELY SUBJECT TO THE JUDICIAL REVIEW OF THE COURT OF APPEAL OF THE SUPREME COURT OF WESTERN AUSTRALIA. THE DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF WA IS EITHER APPEALABLE TO THE COURT OF APPEAL BY WAY OF LEAVE APPLICATION OR BY JUDICIAL REVIEW AS PROVIDED BY OTHER PROVISIONS OF THE SUPREME COURT ACT, 1935, FOR EXAMPLE TO CANCEL A TECHNICAL ERROR BY S.33 WITHOUT GOING THROUGH AN APPEAL PROCESS, OR BY THE JUDGE OF THE SUPREME COURT RESERVING DECISION FOR THE COURT OF APPEAL JUDGES UNDER S.43 OR BY S.49 FOR A NEW TRIAL OF THE DISPUTED ISSUES OR BY S.26 FOR A DECLARATION OF THE DISPUTED ISSUES:
ReplyDeleteSection 167(1)(ia)of the Supreme Court Act, 1935 WA: Rules of court may be made under this Act, by the judges of the Supreme Court, for allowing the Court of Appeal to review any decision made by a single judge of appeal or the Court of Appeal Registrar. This means that the Court of Appeal of the Supreme Court of WA has the judicial review power over that of a single judge or over the decision of the Court of Appeal Registrar.