THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SUPERIOR COURTS

________________________________________________________________

The Anisminic doctrine of extended jurisdictional
error in New South Wales superior courts

Ian Ellis-Jones* First Published (2007) 12 LGLJ 164 All Rights Reserved

________________________________________________________________

In Australia, despite some intermittent enthusiasm for the Anisminic
doctrine of “extended jurisdictional error”, most Australian superior courts
continue to maintain, or at least pay lip-service to, a distinction between
jurisdictional and non-jurisdictional errors of law. This has been particularly
the case in New South Wales where, even since the landmark High Court
of Australia case of Craig v South Australia, the State’s two superior courts,
the Supreme Court (together with the Court of Appeal) and the Land and
Environment Court, respectively, generally decide matters before them
involving jurisdictional error using the traditional doctrine of jurisdictional
error, notwithstanding that Craig is increasingly, and at times incongruously,
cited as authority for their conclusions. Also, despite some judicial authority
that would not appear to take into account the qualifications and
reservations expressed in Craig, the preponderance of NSW judicial
authority makes it clear that not all Anisminic-type errors of law will be
jurisdictional in the broad or extended sense but only one on which the
decision of the case depends. This would be so, for example, in the case of
a failure to take into account a relevant consideration that the decision
maker was duty bound to take into account, where compliance with the
requirement was a precondition of the existence of the power to make the
decision. In the case of an erroneous finding, the erroneous finding would
need to form the basis of the decision or otherwise be an element in the
process of reasoning that led to the decision for the error to be jurisdictional
in the Anisminic sense.

INTRODUCTION

In Anisminic Ltd v Foreign Compensation Commission1 the House of Lords
decided by a majority of three to two2 that the Foreign Compensation

* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, Senior
Lecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers,
Sydney.
1
[1969] 2 AC 147.
2
Lord Reid, Lord Pearce and Lord Wilberforce (adopting the same view as the trial judge,
Browne J); Lord Morris of Borth-y-Gest and Lord Pearson dissenting. (Lord Pearson, although

2

Commission had made a jurisdictional error - albeit of an “apparently extreme”3
type - in holding that Anisminic was not entitled to claim compensation.4 The
Lords held that the Commission had misunderstood the meaning of “successor in
title” and, in considering its nationality, had exceeded its jurisdiction by taking into
account an irrelevant or extraneous consideration.

Lord Reid, in a now famous and oft-cited passage, said in regard to “excess of
jurisdiction”:

It has sometimes been said that it is only where a tribunal acts without jurisdiction
that its decision is a nullity. But in such cases the word “jurisdiction” has been used
in a very wide sense, and I have come to the conclusion that it is better not to use
the term except in the narrow and original sense of the tribunal being entitled to
enter on the inquiry in question. But there are many cases where, although the
tribunal had jurisdiction to enter on the inquiry, it has done or failed to do
something in the course of the inquiry which is of such a nature that its decision is
a nullity. It may have given its decision in bad faith. It may have made a decision
which it had no power to make. It may have failed in the course of the inquiry to
comply with the requirements of natural justice. It may in perfect good faith have
misconstrued the provisions giving it power to act so that it failed to deal with the
question remitted to it and decided some question which was not remitted to it. It
may have refused to take into account something which it was required to take into
account. I do not intend this list to be exhaustive. But if it decides a question
remitted to it for decision without committing any of these errors it is as much
entitled to decide that question wrongly as it is to decide it rightly.5

Lord Pearce, preferring to use the single expression “lack of jurisdiction” to
embrace traditional jurisdictional errors6 as well as various errors of law not
traditionally regarded as going to jurisdiction, said:

holding that the Commission had not made any jurisdictional error, was nevertheless of the view
that an error of the kind found by the majority to have been made by the Commission would have
gone to jurisdiction.)
3
B C Gould “Anisminic and Jurisdictional Review” [1970] Pub L 358 at 359.
4
The company had owned a valuable mining property in Egypt which had been sequestrated by
the Egyptian government during the Suez crisis of 1956-57. A sum of money was subsequently
made available by the Egyptian government for distribution by the British government at the
latter’s discretion. The Foreign Compensation Commission had rejected the company’s claim for
compensation on the ground that the company had not satisfied the requirements of a statutory
order in council which required, among other things, that the company “and” any successor in title
were British nationals at certain specified dates. In the case of Anisminic, its property had been
sold by the Egyptian government to an Egyptian organization (TEDO) which, the Foreign
Compensation Commission held, was not a British national.
5
[1969] 2 AC 147 at 171.
6
A jurisdictional error, in traditional terms, is of three kinds: a want (or lack) of jurisdiction, an
excess of jurisdiction, and a wrongful failure or refusal to exercise jurisdiction.

3

Lack of jurisdiction may arise in various ways. There may be an absence of those
formalities or things which are conditions precedent to the tribunal having any
jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order
that it has no jurisdiction to make. Or in the intervening stage, while engaged on a
proper inquiry, the tribunal may depart from the rules of natural justice; or it may
ask itself the wrong questions; or it may take into account matters which it was not
directed to take into account. Thereby it would step outside its jurisdiction. It would
turn its inquiry into something not directed by Parliament and fail to make the
inquiry which Parliament did direct. Any of these things would cause its purported
decision to be a nullity.7

Lord Wilberforce spoke in terms of a tribunal staying within the proper area of its
jurisdiction:

In every case, whatever the character of a tribunal, however wide the range of
questions remitted to it, however great the permissible margin of mistake, the
essential point remains that the tribunal has a derived authority, derived, that is,
from statute at some point, and to be found from a consideration of the legislation,
the field within which it operates is marked out and limited. There is always an
area, narrow or wide, which is the tribunal’s area; a residual area, wide or narrow,
in which the legislature has previously expressed its will and into which the tribunal
may not enter. Equally ... [there is] the requirement that a decision must be made
in accordance with principles of natural justice and good faith. ... The question,
what is the tribunal’s proper area, is one which it has always been permissible to
ask and to answer, and it must follow that examination of its extent is not precluded
by a clause conferring conclusiveness, finality, or unquestionability upon its
decisions. These clauses in their nature can only relate to decisions given within
the field of operation entrusted to the tribunal. They may, according to the width
and emphasis of their formulation, help to ascertain the extent of that field, to
narrow it or to enlarge it, but unless one is to deny the statutory origin of the
tribunal and of its powers, they cannot preclude examination of that extent.8

It was subsequently held in Re Racal Communications Ltd9 that Anisminic had
indeed abolished the distinction between jurisdictional and non-jurisdictional
errors of law, but only in respect of statutory tribunals and authorities, not in
respect of inferior courts.10 Shortly thereafter, in O’Reilly v Mackman11 Lord

7
[1969] 2 AC 147 at 195.
8
[1969] 2 AC 147 at 207.
9
[1981] AC 374.
10
The Foreign Compensation Commission was, of course, an administrative tribunal, not an
inferior court. Nevertheless, Lord Diplock’s approach was, with respect, inconsistent with the
position expressly recognised by the Lords in Anisminic that there was still a category of non-
jurisdictional error. See also R v Surrey Coroner; Ex parte Campbell [1982] QB 661 at 675; BHP

4

Diplock (with whom all members of the House of Lords agreed) went on to hold
that the traditional distinction between jurisdictional and non-jurisdictional errors
of law had also been abolished for inferior courts as well as administrative
tribunals.12 In England, by 1984, the restriction in relation to inferior courts, to the
extent (if any) to which it still existed in that country, had gone completely.13

ANISMINIC IN AUSTRALIA

Thus, the High Court of Australia was correct to point out in the landmark case of
Craig v South Australia:14

[T]he distinction between jurisdictional error and error within jurisdiction has been
seen as effectively abolished in England ... .15

However, the court was quick to point out:

That distinction has not, however, been discarded in this country … .16

Indeed, only a few years earlier, Brennan J had this to say about the matter in
Public Service Association of South Australia v Federated Clerks' Union of
Australia (South Australia Branch):17

Petroleum Pty Ltd v Balfour (1987) 180 CLR 474 at 480-1.
11
[1983] 2 AC 237.
12
This was expressly acknowledged by the High Court of Australia in Craig v South Australia
(1995) 184 CLR 163 at 178-9 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
13
See R v Greater Manchester Coroner; Ex parte Tal [1984] 3 WLR 643. Thus, in England all
errors of law involve jurisdictional errors: see R v Hull; Ex parte Page [1993] AC 682.
14
((1995) 184 CLR 163.
15
(1995) 184 CLR 163 at 179.
16
(1995) 184 CLR 163 at 179. See, in particular, Public Service Association (SA) v Federated
Clerks' Union (1991) 173 CLR 132 at 141, 149, 165; R v Gray; Ex parte Marsh (1985) 157 CLR
351 at 371-372. See also Houssein v Under Secretary of Industrial Relations and Technology
(NSW) (1982) 148 CLR 88 at 93-95; Hockey v Yelland (1984) 157 CLR 124 at 130; R v Gray; Ex
parte Marsh (1985) 157 CLR 351 at 374-377. In Darling Casino Limited v New South Wales
Casino Control Authority (1997) 191 CLR 602 at 633-4 Gaudron and Gummow JJ simply noted
the wider use of the expression "jurisdiction" referred to in Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147 per Lord Reid at 171 and Lord Pearce at 195.
17
(1991) 173 CLR 132.

5

This Court has not accepted Lord Diplock's view that the distinction between
jurisdictional and non-jurisdictional errors was for practical purposes abolished by
the decision of the House of Lords in Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147.18

However, using its own “local” version of the Anisminic principle (actually, a very
liberal version of the second type of traditional jurisdictional error, being “excess
of jurisdiction”), which predated the House of Lords decision in Anisminic, the
High Court has been able throughout the years to categorise virtually every error
of law as jurisdictional and intervene and strike down virtually any exercise or
purported exercise of power which the court deems to be an abuse of power just
as easily as its British counterparts.19 In that regard, the Australian courts, for the
most part, have been content to proceed on a case-by-case basis, guided only
by such nebulous and self-serving parameters as “misconstruing the statute the
source of jurisdiction”, “misconceiving one’s duty”, “failing to comply with some
requirement essential to its valid or effectual performance”, “not applying oneself
to the question which the law prescribes”, “misunderstanding the nature of the
opinion to be formed” and “being actuated by extraneous considerations”, all of
which are readily capable of judicial massage and manipulation and therefore
quite uncertain in their application.

In Craig v South Australia the respondent sought relief in the nature of certiorari
to quash a decision by a district court judge to stay the prosecution of the
appellant. The Full Court of the Supreme Court of South Australia had quashed
the stay order for error of law. The High Court (per Brennan, Deane, Toohey,
Gaudron and McHugh JJ) allowed the appellant’s appeal, finding that the trial
judge had not erred but that the Full Court had in having regard to the transcript

18
(1991) 173 CLR 132 at 141. See also Deane J at 149, Dawson and Gaudron JJ at 160 and
McHugh J at 166. The latter went so far as to say, “this Court has rejected the proposition that for
practical purposes there is no distinction between jurisdictional and non-jurisdictional errors of
law”.
19
See eg R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; R v
Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; R v Australian Stevedoring
Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Public Service
Association of South Australia v Federated Clerks' Union of Australia (South Australia Branch)
(1991) 173 CLR 132; Coco v R (1994) 179 CLR 427.

6

of the proceedings before the trial judge.20

As mentioned above, the Court stated that the distinction between jurisdictional
and non-jurisdictional error had not been discarded in Australia as in England, at
least as regards inferior courts and statutory tribunals (as opposed to
administrative tribunals).21 The Court, after quoting22 the well-known passage in
Lord Reid’s speech in Anisminic23 about addressing the wrong issue or asking
oneself the wrong question, and after noting that the distinction between
jurisdictional and non-jurisdictional errors of law had not been abolished in
Australia, went on to confine Lord Reid’s comments to the judicial review of
decisions and proceedings of administrative tribunals, said:

… [W]e consider that Lord Reid’s comments should not be accepted here as an
authoritative statement of what constitutes jurisdictional error by an inferior court
for the purposes of certiorari. ...24

Insofar as administrative tribunals were concerned, the High Court had this to
say:

If such an administrative tribunal falls into an error of law which causes it to identify
a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on
irrelevant material or, at least in some circumstances, to make an erroneous
finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported
exercise of power is thereby affected, it exceeds its authority or powers. Such an
error of law is jurisdictional error which will invalidate any order or decision of the
tribunal which reflects it.25

However, such an error of law would not, in the Court’s opinion, “ordinarily”
constitute jurisdictional error in the case of an inferior court.26 Nevertheless, the
Court made it clear that an inferior court will falls into jurisdictional error if it
mistakenly asserts or denies the existence of its jurisdiction or if it
misapprehends or disregards the nature or limits of its functions or powers in a

20
The result was that the High Court concluded that the Full Court of the Supreme Court of South
Australia had been wrong in setting aside the decision of the District Court judge as the judge’s
order had been made within jurisdiction.
21
(1995) 184 CLR 163 at 179.
22
(1995) 184 CLR 163 at 178.
23
[1969] 2 AC 147 at 171.
24
(1995) 184 CLR 163 at 179.
25
(1995) 184 CLR 163 at 179.
26
(1995) 184 CLR 163 at 180.

7

case where it correctly recognises that jurisdiction does exist.27

But, insofar as administrative tribunals are concerned, what exactly is meant by
the words “and the tribunal’s exercise or purported exercise of power [sic] is
thereby affected”? In the Full Federal Court decision of Edwards v Justice
Giudice28 Finkelstein J expressed the opinion that an error of law will relevantly
“affect” a tribunal’s exercise or purported exercise of power “if the erroneous
finding forms the basis of the decision or is an element in the process of
reasoning that led to the decision”.29 The comments of Finkelstein J are
somewhat reminiscent of those of Lord Denning MR in the English Court of
Appeal decision of Pearlman v Keepers and Governors of Harrow School:30

The way to get things right is to hold thus: no court or tribunal has any jurisdiction
to make an error of law on which the decision of the case depends. If it makes
such an error, it goes outside its jurisdiction ... .31

Similarly, in the NSW Land and Environment Court decision of Rosemount
Estates Pty Ltd v Cleland32 Waddell AJ spoke of “an error of law in the exercise
of jurisdiction which is fundamental to the finding or recommendation of the body
reviewed which leads to a manifestly unreasonable result”.33

However, as was pointed out in Minister for Immigration and Multicultural Affairs
v Yusuf34 it is first necessary to understand what is meant by "jurisdictional error"
under the general law and the consequences that follow from a decision-maker
making such an error. McHugh, Gummow and Hayne JJ said:

It is necessary, however, to understand what is meant by “jurisdictional error”
under the general law and the consequences that follow from a decision-maker
making such an error. As was said in Craig v South Australia ..., if an
administrative tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself
27
See (1995) 184 CLR 163 at 180.
28
(1999) 94 FCR 561.
29
At (1999) 94 FCR 591.
30
[1979] QB 56.
31
[1979] QB 56 at 70.
32
(1995) 86 LGERA 1.
33
(1995) 86 LGERA 1 at 17.
34
(2001) 206 CLR 323.

8

a wrong question, to ignore relevant material, to rely on irrelevant material or,
at least in some circumstances, to make an erroneous finding or to reach a
mistaken conclusion, and the tribunal’s exercise or purported exercise of
power is thereby affected, it exceeds its authority or powers. Such an error of
law is jurisdictional error which will invalidate any order or decision of the
tribunal which reflects it”.

“Jurisdictional error” can thus be seen to embrace a number of different kinds of
error, the list of which, in the passage cited from Craig, is not exhaustive ... . Those
different kinds of error may well overlap. The circumstances of a particular case
may permit more than one characterisation of the error identified, for example, as
the decision-maker both asking the wrong question and ignoring relevant material.
What is important, however, is that identifying a wrong issue, asking a wrong
question, ignoring relevant material or relying on irrelevant material in a way that
affects the exercise of power is to make an error of law. Further, doing so results in
the decision-maker exceeding the authority or powers given by the relevant statute.
In other words, if an error of those types is made, the decision-maker did not have
authority to make the decision that was made; he or she did not have jurisdiction to
make it. Nothing in the Act suggests that the Tribunal is given authority to
authoritatively determine questions of law or to make a decision otherwise than in
accordance with the law ... .”35

Further, their Honours said:

... In particular, it is important to recognise that, if the Tribunal identifies a wrong
issue, asks a wrong question, ignores relevant material or relies on irrelevant
material, it “exceeds its authority or powers”. If that is so, the person who purported
to make the decision “did not have jurisdiction” to make the decision he or she
made, and the decision “was not authorised” by the Act.36

ANISMINIC IN NEW SOUTH WALES

The Anisminic doctrine of broad or extended jurisdictional error has not proved
overly popular with NSW superior courts - either before or after Craig. In
Darkingung Local Aboriginal Land Council v Minister for Natural Resources [No
2]37 Stein J (as he then was) in the NSW Land and Environment Court had this to
say about the Anisminic doctrine:

[I]t is interesting to note that the Anisminic doctrine appears to have had little or
no impact in Australia. It has been almost totally ignored by Australian appellate
courts. Surprisingly, and with few exceptions, it has been little referred to or

35
(2001) 206 CLR 323 at 351 [82], fns omitted.
36
(2001) 206 CLR 323 at 351-2 [83].
37
(1987) 61 LGRA 218.

9

quoted. Certainly, no Australian court has recognised and applied the abolition of
the distinction between jurisdictional and non-jurisdictional errors of law.38

Several years later, and after the High Court decision in Craig, in the NSW Court
of Appeal decision of Londish v Knox Grammar School39 the court was called
upon to consider whether a particular privative clause40 precluded judicial review
on the ground of, relevantly, jurisdictional error in the “wider [Anisminic] sense”.
Stein JA (with whom Mason P and Meagher JA agreed) distinguished Anisminic
on the following basis:

... The appellants submit that “s104A does not protect against a challenge based
on excess of jurisdiction in the wider sense... an ultra vires act, a decision that is
beyond power.”

Talbot J held that the issue raised by the applicants/appellants was an error going
to jurisdiction. Accordingly, he opined that judicial review was not excluded by
s104A. In so holding, he relied in part on obiter dicta in the joint judgment of the
High Court in Craig v The State of South Australia that an administrative tribunal
commits a jurisdictional error reviewable by a court if, inter alia, it makes an
erroneous finding, reaches a mistaken conclusion or takes into account irrelevant
considerations. In my view, Craig is not of assistance on the issue of s104A
because it concerned a claim of jurisdictional error by an inferior court and not the
interpretation of a privative clause, whereas the present case concerns the
construction of the statutory provision limiting review by the court of the decision of
a council.41

So, as easily as that, his Honour avoided having to apply the “obiter dicta” [his
words] in Anisminic. Of course, his Honour was technically correct about the
comments in the joint judgment of the High Court being obiter dicta, bearing in
mind that the decision under review in Craig was one made by an inferior court.42
After all, had not the High Court in Craig confined Lord Reid’s comments about
extended jurisdictional error to administrative tribunals on the basis that the
decision under review in Anisminic was one made by an administrative tribunal?

38
(1987) 61 LGRA 218 at 228. See, generally, Ellis-Jones, The Anisminic Revolution in
Australian Administrative Law: An Analysis of Extended Jurisdictional Error (Local Legal, 1998).
39
(1997) 97 LGERA 1.
40
Section 104A, Environmental Planning and Assessment Act 1979 (NSW). The comparable
provision is now s 101 of that Act.
41
(1997) 97 LGERA 1 at 4-5, fns omitted.
42
The District Court of South Australia.

10

Now, back to Darkingung [No 2]. In that case his Honour had held that a
43
privative clause which purported to prevent, among other things, judicial review
of a ministerial certificate was effective to oust judicial review except in
circumstances of an excess of jurisdiction (more-or-less in traditional terms) or an
ultra vires act including bad faith in all its connotations but not including judicial
review on the grounds of manifest unreasonableness44, the taking into account of
irrelevant considerations, the failure to take account of relevant considerations
(unless they happened to be material to bad faith) or review on the basis of any
breach of the rules of procedural fairness. His Honour was clearly of the view that
jurisdictional error did not extend to those errors of law corresponding with broad
or extended ultra vires (other than bad faith or other errors material to bad
faith).45

Interestingly, in previous proceedings relating to the construction of the same
legislation46 - Darkingung Local Aboriginal Land Council v Minister for Natural
Resources47 - Bignold J in the NSW Land and Environment Court appeared to
display considerable enthusiasm for the Anisminic doctrine of extended
jurisdictional error. His Honour, after citing excerpts from the oft-quoted speeches
of Lords Reid and Wilberforce from Anisminic48, referred to Church of
Scientology Inc v Woodward49 and Osmond v Public Service Board of New South
Wales50 as authority for the proposition that, in the absence of clear words, a
privative clause would not protect manifest jurisdictional errors, ultra vires acts or

43
Section 36(8), Aboriginal Land Rights Act 1983 (NSW). That subsection provided that a
certificate issued by a minister, stating that certain land the subject of a claim under s 36 of that
Act was needed or likely to be needed for an essential public purpose, was to be accepted as
final and conclusive evidence of the matters set out in the certificate and was not liable to appeal
or review.
44
cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
45
Cases of this kind are now more likely to be decided on the basis that the impugned decision
did not satisfy the Hickman principle (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR
598 per Dixon J at 615).
46
Section 36(8), Aboriginal Land Rights Act 1983 (NSW).
47
(1985) 58 LGRA 298.
48
[1969] 2 AC 147 at 171 and 210 respectively.
49
(1982) 154 CLR 25.
50
[1984] 3 NSWLR 447.

11

a denial of natural justice.51 His Honour saw those two decisions as reflecting
“the high authority with which Anisminic is regarded by Australian courts”.52

With the greatest respect to Bignold J, it is not easy to see how his Honour could
regard either of those authorities as judicial support for the Anisminic doctrine of
extended jurisdictional error. First, the Scientology case was decided without
reference to the House of Lords decision in Anisminic. Secondly, although Glass
JA and Kirby P (the latter in dissent) referred to Anisminic in Osmond, the most
that could be said is that the NSW Court of Appeal in that case acknowledged
that since Anisminic the former distinctions between statutory appeal on a
question of law and judicial review for a misdirection in law or statutory
misconstruction had become somewhat blurred.53

Whilst it is fairly clear that his Honour approved of Lord Diplock’s decision in Re
Racal Communications Ltd54 in relation to the Anisminic doctrine, and favoured a
wide interpretation of what constitutes a jurisdictional error, his decision related
more to the question of whether the particular statutory provision ousted the
jurisdiction of the court to judicially review the conclusive certificate issued by the
minister than the actual grounds upon which the certificate could be declared a
nullity. Indeed, having found that the certificate was not entitled to the protection
afforded by the relevant statutory provision on the ground that it disclosed an
error on its face, it was not necessary for his Honour to decide whether the
Anisminic doctrine of extended jurisdictional error applied.

As mentioned above, in Darkingung [No 2] Stein J expressly decided that judicial
review of the conclusive certificate was excluded on the basis of “manifest

51
(1985) 58 LGRA 298 at 324.
52
(1985) 58 LGRA 298 at 325.
53
[1984] 3 NSWLR 447 at 466.
54
[1981] AC 374. His Honour also cited, with apparent approval, R v HM Treasury [1985] 1 All
ER 589, a case in which it was held that a “conclusive” provision would not prevent judicial review
on the ground of Wednesbury unreasonableness”. His Honour also expressed the view that bad
faith would also vitiate any decision in relation to the issue of a “conclusive certificate”.

12

unreasonableness, the taking into account of relevant considerations, unless ...
they happen to be material to bad faith”.55

ANISMINIC IN THE NSW COURT OF APPEAL

One of the boldest endorsements of the Anisminic doctrine of extended
jurisdictional error was the NSW Court of Appeal decision in Thelander v
Woodward.56 In that case, Woodward J, sitting as a royal commissioner, had
committed a witness for contempt of the commission for failing to answer
questions put to him. In arriving at his decision, the royal commissioner took into
account evidence other than what the commission had seen and heard whilst the
witness was in the witness box. The Court of Appeal held that the commissioner
had travelled outside his jurisdiction by taking into account matters which he had
no right to consider and made an order quashing his decision. Reynolds JA (with
whom Moffitt P and Glass JA agreed) said:

There is ... no question but that the Commissioner embarked upon an inquiry in
respect of which he had jurisdiction. It is well settled, however, that a tribunal of
limited jurisdiction which properly embarks upon an inquiry within its jurisdiction
may nevertheless travel outside that jurisdiction in the course of it. Various
formulations have been made as to what errors are to be regarded as coming
within this category of jurisdictional error and the question is whether the decision
which results is merely erroneous or invalid. The crucial decision which has to be
made is whether what is seen to be an error was done within the area of
jurisdiction remitted to the tribunal or is properly to be regarded as done outside it:
cf per Lord Wilberforce, Anisminic [1969] 2 AC 147, at p 207 et seq. ... In the
present case ... the Commissioner asked himself the wrong question and travelled
outside the remitted jurisdictional area. In making the decision he did, the
Commissioner took into account matters he had no right to take into account.

55
(1987) 61 LGRA 218 at 230. His Honour also excluded judicial review on the ground of denial
of natural justice (procedural fairness). However, in Worimi Local Aboriginal Land Council v
Minister Administering the Crown Land Act (1991) 72 LGRA 149, his Honour held that the rules of
procedural fairness (relevantly, the hearing rule) applied to a decision by the minister to issue the
conclusive certificate. In so doing, he overruled his earlier decision in Darkingung [No 2] insofar
as it was authority for the proposition that judicial review of the certificate was excluded on the
ground of denial of procedural fainess. Subsequently, in Darkingung Local Aboriginal Land
Council v Minister Administering the Crown Lands Act (L & E Ct, Stein J, No 40078/86, 30 July
1991, unreported), his Honour affirmed his decision in Darkingung [No 2] as regards the
proposition that judicial review was excluded on the grounds of manifest unreasonableness or the
taking into account of irrelevant considerations (in the absence of bad faith).
56
[1981] 1 NSWLR 644.

13

Whilst this is not a matter of jurisdiction in the narrow sense, it is within the wider
sense as expounded by Lord Reid in Anisminic [1969] 2 AC 147, at p 171. For this
reason, I think that an order to quash should be granted.57

With respect to his Honour, whilst it is clear that the commissioner took into
account an irrelevant consideration, it is not entirely clear just what was the
“wrong question” which the royal commissioner asked himself. It is also not clear
whether the taking into account of the irrelevant consideration was itself the
asking the wrong question or something different altogether. In any event, to the
extent to which the commissioner did ask himself the wrong question, such an
error had been recognised as one going, or potentially going, to jurisdiction
before the Anisminic case.58 Nevertheless, the clear and unambiguous statement
by the court that the taking into account of an irrelevant consideration - a matter
which [the commissioner] “had no right to take into account”59 - resulted in an
excess of jurisdiction is perhaps as bold an endorsement of the Anisminic
doctrine as one could hope to find.

In Macksville & District Hospital v Mayze60 Kirby P (as he then was) stated that
since Anisminic “it has generally been considered both in England and Australia
that a denial or breach of the rules of natural justice is a jurisdictional error which
renders the impugned decisions null and void”.61 His Honour’s invocation of
Anisminic as authority for the proposition stated recalls the oft-cited dicta of Lords
Reid and Pearce in Anisminic in relation to the jurisdictional effect of a failure to
comply with the rules of natural justice.62 In particular, his Honour’s use of the
words “jurisdictional error” show more than perfunctory support for the Anisminic
principle (at least in relation to the legal consequences of a failure to comply with

57
[1981] 1 NSWLR 644 at 655.
58
See, eg, Board of Education v Rice [1911] AC 179; R v War Pensions Entitlement Appeal
Tribunal; Ex parte Bott (1933) 50 CLR 228; Ex parte Hebburn Ltd; Re Kearsley Shire Council
(1947) 47 SR (NSW) 416;Toronto Newspaper Guild v Globe Printing Co (1953) 3 DLR 561; R v
Minister of Housing and Local Government; Ex parte Chichester RDC [1960] 1 WLR 587. See
also R v Dunphy; Ex parte Maynes (1978) 139 CLR 482.
59
[1981] 1 NSWLR 644 at 655.
60
(1987) 10 NSWLR 708.
61
(1987) 10 NSWLR 708 at 713.
62
[1969] 2 AC 147 at 171 and 195, respectively.

14

the rules of natural justice). Having said that, his Honour’s invocation of
Anisminic was to some extent unnecessary in any event, as pre-Anisminic cases
such as Ridge v Baldwin63 had already established that the legal effect of a
failure to comply with the requirements of natural justice was that the particular
decision was void, but his dicta do tend to suggest support for a broader
definition of jurisdictional error.

In Greiner v Independent Commission Against Corruption; Moore v Independent
Commission Against Corruption64 the NSW Court of Appeal used the language of
Anisminic when framing the form of its declaratory relief (holding that the
Independent Commission Against Corruption had exceeded its jurisdiction in
concluding that the conduct of the appellants amounted to “corrupt conduct”
within the meaning of the relevant legislation65) but its majority decision66 was
clearly one based on the traditional doctrine of jurisdictional error, albeit in its
more liberal version as developed by the High Court.67 In the words of Gleeson
CJ, the commission had, among other things, “failed to apply the correct test”
and “incorrectly stated the issue that arose for decision, and avoided the problem
that was central to that issue”.68 There was also the invocation of a ground
analogous to “no evidence” to the effect that there was nothing in the report of
the commissioner69 or in argument before the court which would justify the
conclusions of “corrupt conduct”.70

The substance of the decision of the Court of Appeal was that the commission

63
[1964] AC 40.
64
(1992) 28 NSWLR 125.
65
Sections 7-9, Independent Commission Against Corruption Act 1988 (NSW).
66
Gleeson CJ and Priestley JA; Mahoney JA dissenting.
67
cf R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 455-6; R v
Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen ofAustralia
(1950) 82 CLR 54; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring
Co Pty Ltd (1953) 88 CLR 100; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473;
Re Coldham; Ex parte Brideson (1989) 166 CLR 338.
68
(1992) 10 NSWLR 125 at 147.
69
Commissioner Ian Temby QC.
70
cf R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd
(1953) 88 CLR 100.

15

had reached a decision unsupported by the evidence in such a way as to
demonstrate that it had misunderstood the test it had to apply in determining
matters going to jurisdiction.71 The court made no reference to such Anisminic
factors as the taking into account of irrelevant considerations.

In Commissioner of Police v District Court of New South Wales & Anor72 the
Court of Appeal was in no doubt that there was still a relevant distinction to be
made between jurisdictional and non-jurisdictional errors of law, despite its earlier
decision in Thelander v Woodward.73 In particular, Mahoney JA had this to say
about the Anisminic doctrine:

It was suggested that, as the result of the decision in Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147 and other English cases, certiorari
now lies to correct any decision of an inferior court, whether apparent on the record
or otherwise ... .

The submission recognised that this “is not the position which the Australian courts
have arrived at, and in particular is not reflected in any decision of the High Court”.

Such a view, if adopted, would allow the equivalent of an appeal for error of law in
respect of every inferior court or tribunal and, on one view, whatever be the nature
of the error of law. Alternatively, there would be such a review if the error went to
the issue before the inferior body. It would render superfluous administrative
procedures, so far as they relate to errors of law.

That is not the course which, in general, has been followed by the High Court or
this Court. If it is to be taken, it should be taken by the High Court. In so far as it
may be relevant, it is a course which, in my respectful opinion, should not be taken
as stated and without significant qualification. An error of law going to the nature or
extent of the jurisdiction exercised by the inferior court or tribunal is, I think,
appropriate for correction by certiorari. Incidental errors of law, or errors relating,
for example, to evidence, procedure, or merely collateral matters are not.74

In Walker v Industrial Court of New South Wales75 the Court of Appeal, by
majority,76 held that the Full Industrial Court of NSW, which had reversed a

71
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953)
88 CLR 100 at 120.
72
(1993) 31 NSWLR 606.
73
[1981] 1 NSWLR 644.
74
(1993) 31 NSWLR 606 at 640.
75
(1994) 53 IR 121.
76
Meagher and Sheller JJA, Kirby P dissenting.

16

decision of a judge in the former Industrial Commission of NSW, had made a
non-jurisdictional error of law in not attaching sufficient weight to a legal
argument which was supported by considerable judicial authority. However, the
error of law was not, in the opinion of the majority, a jurisdictional one.77 In the
words of Sheller JA (with whom Meagher JA agreed):

There is a critical difference between the error [the subject of the PSA case78] and
the error claimed to have been made by the Industrial Court in this case. The error
[in the PSA case], in the opinion of the majority of the High Court, was [the South
Australian Industrial Commission’s] failure to address the question it had to decide
or its prematurely addressing that question. The error was related to the nature or
extent of the jurisdiction of the Commission. The error of the Full Industrial Court,
which is relied upon, is not so related. ... [T]he majority decision, even if erroneous,
was not one made without authority or beyond the authority of the Industrial Court
... . The majority understood the nature of the jurisdiction they had to exercise. It is
not enough that the Industrial Court erred in law in making its decision ... .79

Interestingly, but immaterially, his Honour cited Anisminic as authority for that last
proposition of law.80 However, there was nothing in the majority judgments, nor
in the dissenting judgment of Kirby P,81 to suggest that the Court of Appeal was
endorsing the extended range of jurisdictional errors recognised in Anisminic.
The decision is significant in that the court recognised that there was still an
important distinction to be made between so-called jurisdictional and non-
jurisdictional errors of law. The court accepted that the error of law made by the
majority of the Full Industrial Court would have been disturbed if an appeal lay to
the Court of Appeal from their findings. However, there was no such appeal right

77
The error, found by the majority to be non-jurisdictional, was protected by a privative clause (s
301, Industrial Relations Act 1991 (NSW)) which ousted the jurisdiction of the Court of Appeal to
quash or otherwise correct non-jurisdictional errors on the face of the record.
78
Public Service Association of South Australia v Federated Clerks’ Union of South Australia,
South Australian Branch (1991) 173 CLR 132.
79
(1994) 53 IR 121 at 153-5.
80
Kirby P also cited Anisminic somewhat immaterially as an example of the “resistance of
supervisory courts to the exclusion of their jurisdiction to require courts and tribunals of limited
jurisdiction to keep within that jurisdiction”: (1994) 53 IR 121 at 137.
81
Kirby P was of the opinion that the error of law made by the majority in the Full Industrial Court
went to jurisdiction. His Honour saw the error as being a constructive refusal or failure to exercise
jurisdiction by reason of, relevantly, a misconstruction of the extent of its jurisdiction: see (1994)
53 IR 121 at 139. The reasoning of Kirby P was, however, quite consistent with the liberal version
of the traditional doctrine of jurisdictional error: cf R v Australian Stevedoring Industry Board; Ex
parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; R v Gray; Ex parte Marsh (1985)
157 CLR 351.

17

and a privative clause protected the error.

In Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation82 the
Court of Appeal made it clear that there is still a purportedly meaningful
distinction to be made between jurisdictional and non-jurisdictional errors of law.
The case concerned an application for relief in relation to a ruling made by the
Court of Coal Mines Regulation in an inquiry into an accident at a coal mine
when certain mine workers drowned. The mine company had made a claim of
legal professional privilege in respect of certain statements made by mine
workers and the mine manager in the presence of his legal representative after
the accident concerning events leading up to the accident. Staunton ADCJ had
ruled that the statements made by the mine manager were protected by the
privilege but not those of the workers. (In so ruling, his Honour had, not
unimportantly, expressly incorporated his reasons into his judgment.) On appeal
to the NSW Court of Appeal, Powell JA (with whom Meagher JA concurred) held
that the privative clause in the relevant legislation83 would protect from judicial
review any non-jurisdictional error of law which appeared plainly on the face of
the record of the inferior court.84 The court went on to hold that even if the
primary judge had erred in rejecting some of the claims for privilege made, that
was an error within jurisdiction and thus not susceptible to prerogative relief
because of the existence and effect of the privative clause.85

In Vanmeld Pty Limited v Fairfield City Council86 the Court was called upon to
consider whether a time limit privative clause87 precluded judicial review for
denial of procedural fairness after the expiration of the stipulated time period in

82
(1997) 42 NSWLR 351.
83
Section 152(5), Coal Mines Regulation Act 1982 (NSW).
84
The Court of Appeal relevantly noted that the Court of Coal Mines Regulation was to be
regarded as a court and not an administrative tribunal for the purposes of the principles relating to
jurisdictional error.
85
Declaratory relief was also refused, having regard both to the privative clause, the nature of the
proceedings below, and public interest considerations militating against judicial review.
86
(1999) 46 NSWLR 78.
87
Section 35, Environmental Planning and Assessment Act 1979 (NSW).

18

circumstances where it was alleged that the inclusion of an impugned provision
in a local environmental plan88 was invalid by reason of denial of procedural
fairness. Spigelman CJ opined in the context of the extent of the protection
afforded by privative clauses that traditional notions of jurisdictional error may
need to be reviewed in light of Anisminic:

The often stated proposition that privative clauses do not protect against
jurisdictional error - sometimes confined to "manifest jurisdictional error" (Church of
Scientology v Woodward (1980-82) 154 CLR 25, 56) or to "refusing to exercise" or
"exceeding" jurisdiction (Public Service Association (SA) supra 160, Darling Casino
supra 555) - may need to be reviewed in view of the extension of the concept of
jurisdictional error in recent years. (Anisminic supra 171 per Lord Reid, 194 per
Lord Pearce; Craig v South Australia (1994-95) 184 CLR 163, 177-179; Darling
Casino supra 555 fn 36).

For present purposes, it is sufficient to note that there is, within the class of
jurisdictional error, specific cases to which a particularly high level of strictness in
the construction of a privative clause is appropriate. In Australia, this approach
includes the application of the Hickman principle. (R v Hickman; Ex parte Fox and
Clinton (1945) 70 CLR 598). This principle applies to State enactments. (R v
Murray ex parte Proctor (1949) 77 CLR 387, 398-399; Coal Miners Industrial Union
of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd
(1960) 104 CLR 437, 442-443).89

The Chief Justice saw procedural fairness as an “inviolable limitation” on the
exercise of a statutory power notwithstanding the Hickman principle.90 Powell JA
saw it a little differently, stating that procedural fairness would indeed be judicially
reviewable by reason of the ordinary application of the implication principle
pursuant to which a duty to act fairly is ordinarily implied into a statutory decision-
making process unless there were a clear and unambiguous exclusion either in
the privative clause itself or in some other part of the statute.91 Ultimately,
however, the court concluded that the appellant had failed to establish that the
inclusion of the impugned provision in the local environmental plan was invalid
upon the ground of alleged non-compliance with a condition precedent to the

88
Clause 13(3) of Fairfield Local Environment Plan 1994.
89
(1999) 46 NSWLR 78 at 106.
90
(1999) 46 NSWLR 78 at 111 [162].
91
For Meagher JA the extent of the protection afforded by the privative clause and the extent of
the Hickman principle did not arise.

19

exercise of the power to amend the draft plan, or upon the ground that the
inclusion of the provision in the plan was not authorised by the provisions of the
principal Act or upon the ground of bad faith.

The court (Spigelman CJ in dissent) concluded that the provisions of the relevant
statute were exhaustive as respects obligations of procedural fairness and that
upon its proper construction the privative clause was effective to extinguish the
right to judicial review on the ground of denial of procedural fairness. Despite
some enthusiasm for the Anisminic doctrine displayed by Spigelman CJ the rest
of the court showed little or no such enthusiasm although Powell JA certainly
warmed to the idea that the rules of judicial review for denial of procedural
fairness and jurisdictional error were the same irrespective of whether the former
was classified as a jurisdictional error.

In DPP v Mills92 Craig was cited by Handley JA a authority for the proposition that
a judicial officer exceeded his or her authority and fell into jurisdictional error in
circumstances where the person misconceived the nature of the function he or
she was to perform.93 With respect, an error of that kind can easily be
accommodated within the traditional doctrine of jurisdictional error as, for
example, a wrongful failure to exercise jurisdiction.94

In Hutchinson v Roads & Traffic Authority95 Giles JA (with whose orders Powell
JA agreed, Meagher JA agreeing with both Giles and Powell JJA) cited,96
seemingly with approval, what Kirby P had said in Totalisator Agency Board of
New South Wales v Casey,97 and also made reference to Kirby P’s judgment in
Macksville and District Hospital v Mayze,98 namely, that a failure on the part of a

92
[2000] NSWCA 236.
93
See [2000] NSWCA 236 at [40].
94
See eg Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.
95
[2000] NSWCA 332.
96
[2000] NSWCA 332 at [29].
97
See (1994) 54 IR 354 at 359.
98
See (1987) 10 NSWLR 708 at 713.

20

tribunal to afford procedural fairness constitutes jurisdictional error.99 However,
his Honour went on to say:

Categorisation as jurisdictional error as distinct from error within jurisdiction
involves a line which in some cases "may be particularly difficult to discern", see
Craig v The State of South Australia (1995) 184 CLR 163 at 178, and in the
discussion of the scope of certiorari in that case (at 175-6) jurisdictional error and
failure to observe applicable requirements of procedural fairness were separately
stated as grounds for the relief. As Lord Browne-Wilkinson explained in R v Lord
President of the Privy Council; ex parte Page (1993) AC 682 at 701, curial
intervention is because the decision-maker's powers are taken to have been
conferred "on the underlying assumption that the powers are to be exercised only
within the jurisdiction conferred, in accordance with fair procedures ...", so that if
the decision-maker exercises his powers outside the jurisdiction conferred or in a
manner which is procedurally irregular he is acting outside his powers and
therefore unlawfully. If it is preferred to avoid the language of jurisdictional error
when there has been failure to afford procedural fairness, the result is the same.
The failure will found prerogative relief, see in addition to the cases just mentioned
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 and Council of
Civil Service Unions v Minister for the Civil Service (1985) AC 374, both cited in
Craig v The State of South Australia at 175-6.100

Especially interesting is his Honour’s observation that the High Court in Craig did
indeed make a distinction between jurisdictional error and non-compliance with
the rules of procedural fairness in its discussion of the scope of certiorari, thus
affording another opportunity to a reviewing court to avoid categorizing a denial
of procedural fairness as a jurisdictional error. With respect, one should not point
too fine a point on that purported distinction, for the High Court now appears to
have accepted that a denial of procedural fairness, other than perhaps a very
minor or technical breach, will now ordinarily constitute jurisdictional error in the
traditional sense,101 and such an approach appears to implicit in what Giles JA
said when he referred to a decision maker “acting outside his powers and
therefore unlawfully” consequent upon a failure to comply with an ordinarily

99
Kirby P in Casey had referred to Kopuz v District Court of New South Wales (1992) 28 NSWLR
232 at 245 and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171 and
195.
100
[2000] NSWCA 332 at [30].
101
See eg Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs
(1999) 197 CLR 510; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Plaintiff
S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

21

implied duty to act fairly when exercising powers. As his Honour said, “the result
is the same”.102

In Lowy v Land and Environment Court of NSW103 Handley JA104 cited
Anisminic105 for the proposition that although a tribunal (in Lowry, the court
below106) may have jurisdiction to entertain an appeal and, relevantly, to consider
whether certain provisions in a local environmental plan107 amounted to a
“development standard” (as defined in s 4 of the Environmental Planning and
Assessment Act 1979 (NSW)), it could not, by a “wrong decision” on that
question, give itself jurisdiction to relax the controls imposed by that clause.108

In Uniting Church in Australia Property Trust (NSW) v Industrial Relations
Commission of NSW in Court Session109 Mason P (Spigelman CJ and Handley
JA agreeing) made the point that although the distinction between jurisdictional
and non-jurisdictional error remained “a fundamental part of Australian
administrative law”,110 but immediately went on to add that “one insight stemming
from Anisminic is that it is now more clearly understood than previously that ‘an
error of law may amount to a jurisdictional error even though the [decision-maker
that] made the error had jurisdiction to embark on its inquiry’.”111 In Sydney Water
Corporation Ltd v Industrial Relations Commission of NSW112 Mason P (Hodgson

102
[2000] NSWCA 332 at [30]. Powell JA said as much in Vanmeld at 46 NSWLR 78 at 114-5.
103
(2002) 123 LGERA 179.
104
At 123 LGERA 194.
105
Giles JA also cited R v Dunphy ex parte Maynes (1978) 139 CLR 482 at 495-6 per Mason J
and R v Gray (1985) 157 CLR 351 at 371-2 per Gibbs CJ.
106
The NSW Land and Environment Court.
107
Clause 22(1) and (2) of Woollahra Local Environmental Plan 1995.
108
State Environmental Planning Policy No 1 - Development Standards permits a consent
authority (including the court in a merit-based appeal made to it), where, inter alia, it is satisfied
that an objection made under the Policy is well founded, to grant development consent to a
development application notwithstanding the development standard the subject of the objection.
109
(2004) 60 NSWLR 602.
110
(2004) 60 NSWLR 602 at 615 [54].
111
(2004) 60 NSWLR 602 at 615 [54] per Mason P citing Gibbs CJ in R v Gray; Ex parte Marsh
(1985) 157 CLR 357 at 371. Mason P also referred to Coal and Allied Operations Pty Ltd v
Australian Industrial Relations Commission (2000) 203 CLR 194 at 227-8 per Kirby J.
112
(2004) 61 NSWLR 661.

22

and McColl JJA agreeing) made the same point, confirming what he had said in
the Uniting Church case.113

With respect, these invocations of Anisminic can hardly amounted to an
endorsement of the Anisminic doctrine of extended jurisdictional error for it had
long been acknowledged prior to Anisminic that errors of law such as
fundamental misconstruction of the statute, “asking the wrong question”, and
“applying the wrong test” could go to jurisdiction notwithstanding that there was
no lack or want of jurisdiction in the traditional sense.114

In Brodyn Pty Ltd t/as Time Cost and Quality v Davenport115 Hodgson JA (with
whom Mason P and Giles JA agreed) noted that the primary judge116 had cited
Anisminic and Craig as authority for the proposition that an administrative tribunal
would fall into jurisdictional error of law if it had refused to take into account
something it was required to take into account or it based its decision on
something that it had no right to take into account. Nevertheless, Hodgson JA
went on to say:

It was said in the passage in Anisminic quoted by McDougall J [in Musico v
Davenport [2003] NSWSC 977 at [47]] that a decision may be a nullity if a tribunal
has refused to take into account something it was required to take into account, or
based its decision on something it had no right to take into account. However, in
Craig v South Australia (1995) 184 CLR 163 at 177 the High Court said that this
would involve jurisdictional error if compliance with the requirement in question was
made a pre-condition of the existence of any authority to make the decision.117

Interestingly, Hodgson JA was at great pains to accurately set out what the High
Court had said in Craig as to the circumstances in which an Anisminic-type error
of law (such as the kind described above) would amount to jurisdictional error
when committed by a tribunal. Clearly, the Court of Appeal did not want to create

113
At 61 NSWLR 661 at [65].
114
See eg Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, R v Hickman; Ex parte
Fox and Clinton (1945) 70 CLR 598 at 606, and Ex parte Hebburn Ltd; Re Kearsley Shire Council
(1947) 47 SR (NSW) 416 at 420 per Jordan CJ.
115
(2004) 61 NSWLR 421.
116
McDougall J of the NSW Supreme Court.
117
(2004) 61 NSWLR 421 at [56]. See also Energy Australia v Downer Construction (Australia)
Pty Limited [2005] NSWSC 1042.

23

the impression that any kind of Anisminic-type error of law would now be
jurisdictional as a result of the High Court’s majority judgment in Craig. Be that
as it may, the court’s decision in Brodyn must be taken to be a belated
acceptance by the NSW Court of Appeal of the potential applicability of the
Anisminic-Craig formulation of jurisdictional error, provided it can be shown that
the impugned error of law is one on which the decision of the case depends.118

More recently, in Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW)
Pty Ltd,119 Basten JA (who, with Ipp JA, agreed with the orders proposed by
Hodgson JA) cited Brodyn as authority for the applicability of Craig and Yusuf in
the context of jurisdictional fact situations:

… Brodyn accepted that relief could be sought in the Court in relation to a failure
by an adjudicator to exercise his or her statutory powers, with the result that there
was no valid determination. The judgment in Brodyn at [54] posited the relevant
question as “whether a requirement being considered was intended by the
legislature to be an essential pre-condition for the existence of an adjudicator’s
determination”. So much may be conceded: that description reflects the concept of
“jurisdictional error” under the general law as identified in Craig v South Australia
(1995) 184 CLR 163 at 179 and in Minister for Immigration and Multicultural Affairs
v Yusuf (2001) 206 CLR 232 at [82]. The question in a particular case will be
whether the adjudicator has, by acting in a particular way, exceeded or failed to
exercise the authority or powers given to him or her by the Act.120

His Honour went on to say that Brodyn may be authority for the proposition that,
contrary to the general position outlined by the High Court in Craig, namely, that
administrative tribunals are not final arbiters of questions of law, particular
legislation (relevantly, NSW legislation) may well provide otherwise:

As Craig v South Australia demonstrates, there is an important distinction to be
drawn (at least in this country) between administrative decision-makers and courts
of law: 184 CLR at 179. Properly understood, Brodyn may be saying that the
structure of the Act demonstrates that, contrary to the general rule with respect to
administrative tribunals, an adjudicator has been given power to determine a
payment claim so long as he or she takes into account the legal parameters

118
Cf Pearlman v Keepers and Governors of Harrow School [1979] QB 56 at 70 per Lord
Denning MR. See also Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd
[2005] NSWCA 228 per Basten JA at [71] and [78].
119
[2005] NSWCA 228.
120
[2005] NSWCA 228 at [71].

24

prescribed by the Act and the contract, and whether or not the decision actually
made reflects a correct understanding of the legal principles to be derived from
those sources. If that is the correct understanding of the judgment of Brodyn in this
Court, it would appear to accord with the judgment of Einstein J at first instance,
and with the approach adopted by McDougall J in Musico v Davenport [2003]
NSWSC 977, as noted by Palmer J, in reaching a similar conclusion, in Multiplex
Constructions Pty Ltd v Luikens [[2003] NSWSC 1140] at [42]. Nothing put to the
Court in this case demonstrated any basis for reconsideration of that aspect of
Brodyn, so understood.121

A similar view had been expressed in Absolon v NSW TAFE122 by Fitzgerald JA:

The Tribunal's omission did not constitute a jurisdictional error by the Tribunal in
the sense discussed in Craig v South Australia. (1995) 184 CLR 163. The task of
the Tribunal, acting within jurisdiction, was similar to the ordinary jurisdiction of a
court of law, as described in Craig. 184 CLR, at pp 179-180. There, the High Court
said: 184 CLR, at pp 179-180.

"...the ordinary jurisdiction of a court of law encompasses authority to decide
questions of law, as well as questions of fact, involved in matters which it has
jurisdiction to determine. The identification of relevant issues, the formulation
of relevant questions and the determination of what is and what is not
relevant evidence are all routine steps in the discharge of that ordinary
jurisdiction. Demonstrable mistake in the identification of such issues or the
formulation of such questions will commonly involve error of law which may, if
an appeal is available and is pursued, be corrected by an appellate court and,
depending on the circumstances, found an order setting aside the order or
decision of the inferior court. Such a mistake on the part of an inferior court
entrusted with authority to identify, formulate and determine such issues and
questions will not, however, ordinarily constitute jurisdictional error. Similarly
a failure by an inferior court to take into account some matter which it was, as
a matter of law, required to take into account in determining a question within
jurisdiction or reliance by such a court upon some irrelevant matter upon
which it was, as a matter of law, not entitled to rely in determining such a
question will not ordinarily involve jurisdictional error."123

ANISMINIC IN THE NSW SUPREME COURT

In Waterhouse v Racing Appeals Tribunal,124 a decision of Young CJ in Eq, his
Honour, after referring to the oft-cited dictum of Lord Reid in Anisminic,125 said:

121
[2005] NSWCA 228 at [78].
122
[1999] NSWCA 311.
123
[1999] NSWCA 311 at [146].
124
[2002] NSWSC 1143.
125
[1969] 2 AC 147 at 171.

25

Australian courts have not given full force to these words in cases where there is
an appeal from a court; see eg R v Dunphy; Ex parte Maynes (1978) 139 CLR 482,
495-6 and Electricity Commission of NSW v Yates (1991) 30 NSWLR 351, 357.
However, when it is the decision of an administrative tribunal that is being
questioned, the Anisminic principle has been more favourably considered.126

In Jonsson v Arkway Pty Ltd127 Shaw J contrasted the position in England with
that in Australia, making special reference to the position pertaining to inferior
courts and tribunals:

The basis of the English deviation from Australian administrative law is grounded in
the proposition that all errors of law involve jurisdictional errors (see R v Hull; Ex
parte Page [1993] AC 682; Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147), but in Australia, it is still the case that a court of judicial review
may only correct jurisdictional errors: Craig v South Australia (1995) 184 CLR 163.
In Australia, only certain issues will be jurisdictional issues in the context of inferior
courts or statutory tribunals with a jurisdiction limited by statute, but those
questions remain live throughout the proceedings. For example, a tribunal limited
to matters involving adjudication of disputes over topic ‘x’ will always be concerned
with the question of whether the subject of the controversy is ‘x’ or ‘not-x’. This may
be a matter of consent between the parties however a wrong finding of either of
these options as a matter of law, or a wrong finding of fact or a misapplication of a
legal test that leads to such a finding of fact or law, may all amount to jurisdictional
errors rendering the proceedings amenable to judicial review and prerogative relief:
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Craig v
South Australia.128

Undoubtedly, all that is indubitably correct, but it can all be accommodated within
the traditional doctrine of jurisdictional error including the so-called “jurisdictional
fact doctrine”.129

In Musico v Davenport,130 a decision of McDougall J, it was held that an
adjudicator’s determination under the Building and Construction Industry Security

126
[2002] NSWSC 311 at [11].
127
(2003) 58 NSWLR 451.
128
(2003) 58 NSWLR 451 at 454 [16].
129
See Ellis-Jones I, “The ‘jurisdictional fact doctrine’ in New South Wales local government and
environmental planning law” (2006) 12 LGLJ 16.
130
[2003] NSWSC 977.

26

of Payment Act 1999 (NSW) was judicially reviewable by means of certiorari.131
His Honour, after also referring to the oft-cited dictum of Lord Reid in Anisminic132
as well as Craig, said:

I therefore conclude that, where the determination of a dispute submitted to an
adjudicator under the Act requires the adjudicator to consider issues of law, the
adjudicator will not fall into jurisdictional error simply because he or she makes an
error of law in the consideration and determination of those issues. It would be
otherwise, as the High Court pointed out in Craig (echoing, I think, what Lord Reid
said in Anisminic), if the error of law causes the adjudicator to make one or other
(or more) of the jurisdictional errors that the court identified: in such a case, relief
would lie, subject to any relevant discretionary considerations.

His Honour’s reference to “the jurisdictional errors that the court identified”
appears to embrace not just the Anisminic-type errors identified, non-
exhaustively, by the High Court in Craig but also those referred to by Lord Reid in
his oft-cited dictum in Anisminic.133 Thus, jurisdictional error (including
jurisdictional error on the face of the record) would then include the following
errors of law:

• where an administrative tribunal identifies a wrong issue, asks itself a
wrong question, ignores relevant material, relies on irrelevant material
or, at least in some circumstances, makes an erroneous finding or
reaches a mistaken conclusion (as per Craig);
• where the tribunal makes a decision in bad faith, gives a decision which
it had no power to make, misconstrues provisions giving it power to act
so that it failed to deal with the question remitted to it but decided some

131
In Brodyn Pty Limited t/as Time Cost and Quality v Davenport [2003] NSWSC 1019 Einstein J
also came to the same conclusion.
132
[1969] 2 AC 147 at 171.
133
See, in that regard, Wong C, “Construction Law: Adjudicator’s determination subject to judicial
review” (2004) 42 Law Soc J (NSW) 50. See also Abacus v Davenport [2003] NSWSC 1027;
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140; Transgrid v Walter Construction
Group [2004] NSWSC 21; Transgrid v Siemens Ltd [2004] NSWSC 87 (on appeal to the NSW
Court of Appeal, [2004] 61 NSWLR 521); Quasar Constructions v Demtech Pty Ltd [2004]
NSWSC 116; John Holland Pty Limited v Cardno MBK (NSW) Pty Limited [2004] NSWSC 258;
Emergency Services Superannuation Board v Davenport [2004] NSWSC 697; Holmwood
Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129.

27

other question not remitted to it, refuses to take into account something
which it was required to take into account, or bases a decision on
matters which, under the provisions setting it up, it had no right to take
into account (as per Anisminic).134

However, his Honour made it clear that judicial review would not be possible for
non-jurisdictional error of law, thus recognising that there was still a distinction to
be made between jurisdictional and non-jurisdictional errors. However, even
Lord Reid, in particular, in Anisminic recognised that there was still such a
distinction,135 but it soon became very difficult in England to conceive of an error
of law which would not be jurisdictional having regard to the wide variety of the
errors mentioned in the lists of the majority Lords. Indeed, Australian experience
has shown that almost any error of law can be “massaged” into a jurisdictional
one if the reviewing court so desires.

In Gray v Woollahra Municipal Council,136 a decision of Whealy J, the court
choose to adopt a very robust and not entirely correct interpretation of what the
High Court had said in Craig. This is what Whealy J had to say about the matter:

… The High Court has, in addition, made it clear that the broader kind of error
described by Lord Reid in his well known speech in Anisminic at 171, is not
jurisdictional error so as to enable the grant of relief in the nature of certiorari at
least where the decisions of inferior courts are concerned. On the other hand, the
High Court has confirmed that the full range of the common law grounds of judicial
review are available to challenge the legality of a tribunal decision. So far as
tribunals are concerned, there does not appear to be any relevant distinction in
Australia, as a result of Craig’s case, between jurisdictional error and non-
jurisdictional error. …137

With respect, the High Court did not say that. First, the High Court said that the
Anisminic doctrine would not “ordinarily” apply to inferior courts; the High Court

134
Judicial review would also be possible for denial of procedural fairness.
135
See [1969] 2 AC 147 at 171.
136
[2004] NSWSC 112.
137
[2004] NSWSC 112 at [81].

28

did not say that the doctrine would never apply to the judicial review of the
decisions and proceedings of inferior courts. Secondly, the High Court did not
say that every Anisminic-type error of law will be jurisdictional in the wider or
extended sense. The High Court made it clear that the error had to be such that
“[as a result] the tribunal’s exercise or purported exercise of power is thereby
affected”.138 Thus, it does not seem to be accurate to assert that Craig has
rendered obsolete, even in a practical sense, the traditional distinction between
jurisdictional and non-jurisdictional errors of law. This was made clear by
Hodgson JA (with whom Mason P and Giles JA agreed) in the NSW Court of
Appeal decision of Brodyn Pty Ltd t/as Time Cost and Quality v Davenport.139

In Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd140 Brereton
J opined that the NSW Court of Appeal decision in Brodyn was correctly to be
understood as saying that mere error of fact or law, including in the interpretation
of the enabling Act, did not necessarily amount to jurisdictional error. In Pacific
General Securities Ltd v Soliman & Sons Pty Ltd141 his Honour said by way of
amplification:

At least in the context of tribunals other than inferior courts, one well recognised
species of jurisdictional error is “asking the wrong question”, in the sense that a
tribunal which misconceives what it is required to determine falls into jurisdictional
error, resulting in invalidity of its decision [Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147, 171 (Lord Reid); Craig v South Australia (1995) 184
CLR 163, 178-179].

In Holmwood Brereton J cited Lord Reid’s oft-cited speech in Anisminic142 for the
proposition that, at least in the case of an administrative tribunal as distinct from
a court of law, a tribunal’s decision will be a nullity if, among other things, it
138
See (1995) 184 CLR 163 at 179. See also, by way of example, Ideal Waterproofing Pty Ltd v
Buildcorp Australia Pty Ltd [2004] NSWSC 765. See also Custom Credit Corporation Limited (in
Liquidation) v Commercial Tribunal of New South Wales [1999] NSWSC 1021; Hargrave v Slater
[2000] NSWSC 387.
139
(2004) 61 NSWLR 421. See also Kembla Coal & Coke v Select Civil Pty Ltd [2004] NSWSC
628.
140
[2005] NSWSC 1129.
141
[2006] NSWSC 13.
142
See [1969] 2 AC at 171.

29

“refuses to take into account a relevant consideration or it takes into account an
irrelevant consideration”.143 With respect, his Honour overstated the Australian
legal position, for, as Hodgson JA pointed out in Brodyn Pty Ltd t/as Time Cost
and Quality v Davenport,144 the High Court made it clear in Craig v South
Australia that errors of the kinds described by Brereton J would only involve
jurisdictional error if compliance with the requirement in question was made a
precondition of the existence of any power or authority to make the decision.

ANISMINIC IN THE NSW LAND AND ENVIRONMENT COURT

As mentioned above, in Darkingung Local Aboriginal Land Council v Minister for
Natural Resources145 Bignold J appeared to display considerable enthusiasm for
the Anisminic doctrine of extended jurisdictional error.

However, in Darkingung Local Aboriginal Land Council v Minister for Natural
Resources [No 2]146 Stein J, in referring to the grounds which would not preclude
a judicial review challenge notwithstanding a time limit privative clause, did not
include review on the basis of a breach of the rules of natural justice.147 His

143
[2005] NSWSC 1129 at [42]. See also his Honour’s judgment in Pacific General Securities Pty
Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 13.

144
See (2004) 61 NSWLR 421 at [56]. See also Roads and Traffic Authority (RTA) v John
Holland [2006] NSWSC 567 per Macready AJ at [63]-[66].

145
(1985) 58 LGRA 298.
146
(1987) 61 LGRA 218.
147
See (1987) 61 LGRA 218 at 230. Cripps J in Woolworths Ltd v Bathurst City Council was of
the opinion that a denial or breach of the rules of procedural fairness may not preclude a
challenge after the expiration of the stipulated time period. However, in Coles Supermarkets
Australia Pty Ltd v Minister for Urban Affairs and Planning147 Pearlman J held that a time limit
privative clause did preclude a judicial challenge on the ground of procedural fairness except
where the tests enunciated in Hickman were not satisfied. However, in Wechsler v Auburn
Council [1997] NSWLEC 9 Talbot J of the NSW Land and Environment Court stated that more
recent judicial authorities of the High Court and the NSW Court of Appeal (viz Craig and Yisrael v
District Court of NSW (1996) 87 A Crim R 63) supported a “reconsideration” of Coles and
Breitkopf v Wyong Council (1996) 90 LGERA 269 (in which Bignold J gave a privative clause full
force and effect). The “better” view now is that, unless there be some clear and unambiguous
exclusion of the rules of procedural fairness either in the privative clause or in some other part of
the statute, a denial of procedural fairness, if established, will not be protected by the privative
clause, the reason being that the duty to act fairly is ordinarily an “inviolable limitation or restraint”

30

Honour, as already mentioned, went on to note that the Anisminic doctrine
appeared to have had little or no impact in Australia.148

Stein J was to change his mind on the issue of whether or not a breach of the
rules of natural justice could be judicially reviewed in the face of such a clause.
In Calkovics v Minister for Local Government & Planning149 his Honour held that
such a clause did not prevent a judicial review challenge on the basis of a breach
of the rules of procedural fairness. It would appear that Stein J came to that view
not so much as a result of any real enthusiasm for the Anisminic doctrine but
rather on the basis that a decision-maker’s power must be taken to have been
conferred on the underlying assumption that the power is to be exercised only
within the jurisdiction conferred in accordance with fair procedures. Still later,
when on the Court of Appeal, his Honour (then Stein JA) expressly left the matter
open in Londish v Knox Grammar School.150

In Rosemount Estates Pty Ltd v Cleland151 the applicant company sought a
number of declarations, including a declaration that the report, findings and
recommendations of the first respondent commissioner were invalid. Waddell AJ,
after noting that Anisminic had preserved the distinction between “an error of law
going to jurisdiction or to compliance with the legal requirements to be fulfilled by
the body under review and an error of law committed in the valid exercise of its
powers”152, concluded that it was not open to the court to find invalidity solely on
the ground of an error of law made by the commissioner in his interpretation of
certain provisions of an environmental planning instrument.153 In that regard, his
Honour said:

on the decision-making power: see the NSW Court of Appeal decision in Lesnewski v Mosman
Municipal Council (2005) 138 LGERA 207.
148
(1987) 61 LGRA 218 at 228.
149
(1989) 72 LGRA 269 at 273.
150
(1997) 97 LGERA 1.
151
(1995) 86 LGERA 1.
152
(1995) 86 LGERA 1 at 17.
153
His Honour also cited Lord Denning’s dictum in R v Northumberland Compensation Appeal
Tribunal; Ex parte Shaw [1952] 1 KB 338 at 346 to the effect that a tribunal may often decide a
point of law wrongly whilst keeping well within its jurisdiction.

31

It may be that there is justification to extend the grounds of judicial review to
include the making of an error of law in the exercise of jurisdiction which is
fundamental to the finding or recommendation of the body reviewed which leads to
a manifestly unreasonable result. Lord Diplock contemplated the addition of further
grounds of review. However, the question of recognising such an additional ground
has not been argued and should not be pursued further.154

However, his Honour did proceed to find that the foundation of the
commissioner’s recommendation that development consent be granted in
respect of the operation of an open cut coal mine was the commissioner’s finding
that the development was permissible with consent, and that that finding was
“manifestly unreasonable”.155 His Honour said:

... It is clearly required that the recommendations should be, and should be seen to
be, fairly based on the findings and the material in the report.

If a recommendation is manifestly unreasonable, considered in this way, it cannot
be regarded as complying with the statutory requirements.156

His Honour declared that the commissioner’s recommendation was not a
recommendation for the purposes of the relevant statutory provisions.157 He also
made an order (in the nature of mandamus) that the commissioner exercise
according to law the functions required of him.158 His Honour’s invocation of
“Wednesbury unreasonableness”159 as a ground of invalidity - resulting in a
finding that the commissioner’s jurisdiction in law had been constructively
unexercised160 - was an implicit, if not explicit, acceptance of the Anisminic
doctrine of extended jurisdictional error.161

154
(1995) 86 LGERA 1 at 17.
155
(1995) 86 LGERA 1 at 30. The court agreed with the applicant that the proposed development,
despite screening, would be an unwelcome visual intrusion on large parts of the countryside, and
the commissioner’s conclusion that it would not do so was found by the court to be Wednesbury
unreasonable.
156
(1995) 86 LGERA 1 at 30.
157
Sections 119 and 101, Environmental Planning and Assessment Act 1979 (NSW).
158
(1995) 86 LGERA 1 at 30.
159
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234.
160
cf Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.
161
Interestingly, in Anisminic Ltd v Foreign Compensation Commission & Ors [1969] 2 AC 147 at
171 and 195, neither Lord Reid nor Lord Pearce actually included in their respective lists of errors
of law going to jurisdiction “Wednesbury unreasonableness”.

32

However, despite the views of Bignold J in Darkingung and Waddell JA in
Rosemount Estates, the NSW Land and Environment Court, for the most part,
showed little enthusiasm for the Anisminic doctrine of extended jurisdictional
error prior to the High Court decision in Craig.

In Kolback Environmental Services Ltd v Auburn Council162 Pearlman J, after
referring to the High Court decisions in Craig and BHP Petroleum Pty Ltd v
Balfour,163 the latter making reference to certain words of Lord Diplock in Re
Racal Communications Ltd164 in which his Lordship referred approvingly to
Anisminic, said:

I accept the proposition, established by these authorities, that an administrative
tribunal may fall into error if it asks itself the wrong question.

True, but, with the greatest respect, we didn’t need Anisminic or the other cases
cited above to tell us that.

CONCLUSION

Despite some NSW judicial authority that would not appear to take into account the
qualifications and reservations expressed in Craig, the preponderance of judicial
authority in the State makes it clear that not all Anisminic-type errors of law will be
jurisdictional in the broad or extended sense but only one on which the decision of the
case depends. Had that not been held to be so, NSW superior courts would have gone
further than the High Court of Australia chose to do in Craig. In order for the classic type
of Anisminic error of law to be held to be jurisdictional in the broad or extended sense
(relevantly, a failure to take into account a relevant consideration that the decision maker
was duty bound to take into account), it will be necessary to show that compliance with
the requirement to take the matter into account was a precondition of the existence of
the power or authority to make the substantive decision. In order for an erroneous

162
(1997) 98 LGERA 367.
163
(1987) 180 CLR 474.
164
(1981) AC 374 at 382-3.

33

finding to be held to involve jurisdictional error in the broad or extended sense, the
erroneous finding will need to form the basis of the decision or otherwise be an element
in the process of reasoning that leads to the decision for the error to be jurisdictional.

Finally, the maintenance by NSW superior courts of the traditional distinction
between errors going to jurisdiction and errors within jurisdiction - a distinction
“so fine”165 it is “hair-splitting”166 - has also allowed courts to intervene “where
intervention would otherwise be precluded”.167 Where Anisminic is cited as
authority in respect of some error of law adjudged by the reviewing court to be
jurisdictional, its invocation is often unnecessary and even confusing as the
impugned error could, in most cases, be accommodated within the traditional
doctrine of jurisdictional error. This is not surprising because, for the most part,
Australian courts have found Anisminic irrelevant and unnecessary. As Margaret
Allars has stated:

Prior to the decision in Anisminic, the High Court had developed a liberal version
of the traditional ground of jurisdictional error. The liberal version allowed for
jurisdictional error to be established not only where a tribunal misconstrued its
empowering Act, but also where it had “misconceived its function” or addressed
itself to the wrong issue. After the Anisminic decision the High Court maintained a
liberal and therefore very flexible approach to traditional jurisdictional error, an
approach incorporating the test of whether a tribunal has misconceived its
function or addressed itself to the wrong issue, yet leaving scope for the
existence of non-jurisdictional errors of law which may not be reviewed under this
ground of review.168

There is little doubt that Allars’ comments are equally applicable to the approach
fairly consistently taken by NSW superior courts over the years.

-oo0oo-

165
Pearlman v Keepers and Governors of Harrow School [1979] QB 56 per Lord Denning MR at
70.
166
S A de Smith, “Judicial Review in Administrative Law The Ever-Open Door?” (1969) 27 Camb
L J 161 at 164.
167
V Bath, “The Judicial Libertine - Jurisdictional and Non-jurisdictional Error of Law in Australia”
(1983) 13 F L Rev 13 at 46.
168
Halsbury’s Laws of Australia [vol 1] (Butterworths, Sydney, 1991), p 13,549.

THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SUPERIOR COURTS

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