My Application for Certiorari Orders Nisi in CIV 1019 of 2010 under Order 56 of the Rules of Supreme Court WA 1971) in terms of my Amended Proposed Certiorari Orders filed and dated 25.3.2010.
McHUGH and GUMMOW JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502; (2003) 77 ALJR 699 (12 February 2003) at para. 84 quoting the case Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 said:
…. The applicant submitted that his legitimate expectation of a fair procedure included an obligation on the Department to go ahead and …. unless, before deciding to desist from that course, reasonable notice of that intention was given to the applicant. The precept given normative effect in this way was the observance of what counsel identified as "a minimum standard of decent dealing in [the] eventual decision making which may be breached by failing to carry through something [which the decision-maker] said [it] would do".
GUMMOW, HAYNE AND KIEFEL JJ in Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57 (11 December 2008) at para 57 said:
“Equity fastens upon the conscience of a party taking under [ an Order of Court] and requires [ the LPCC] to choose between taking the benefit and accepting the burden of any stipulated conditions or rejecting the benefit. Viscount Maugham explained in this connection that the phrase "you may not both approbate and reprobate ", which was derived from the civil law and "from the northern side of the Tweed", when used in English law was but a synonym for the equitable doctrine of election [My Emphas].
Their Honours further said at para. 58:
The doctrine of election is long established at common law. As Jordan CJ pointed out in O'Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 257:,
"[s]ince the days of the Year Books it has been recognised that you cannot have the egg and the halfpenny too".
If, then, something happens which gives rise to the existence of two alternative rights, and one of those rights is satisfied, the other is no longer available. A breach of contract by one party always gives the other party a right to recover damages for the breach. If serious, the breach will give the innocent party the right to treat the contract as at an end. But the innocent party need not accept the repudiatory breach and avoid the contract; the innocent party may choose to insist upon further performance. And as Craine v Colonial Mutual Fire Insurance Co Ltd[48] shows, the exercise, despite knowledge of a breach entitling one party to be discharged from its future performance, of rights available only if the contract subsists, will constitute an election to maintain the contract on foot.
See: the case of Craig v South Australia (1995) 184 CLR 163 at 179 which states as follows:
"If such an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in certain 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."
See also: Para. 81 of the above case where both Justices quoted Brennan J in the case of Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39 in the following words:
"So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power."
See: http://en.wikipedia.org/wiki/Stalking_horse:
A stalking horse is a person who tests a concept with someone or mounts a challenge against them on behalf of an anonymous third party. If the idea proves viable and/or popular, the anonymous figure can then declare their interest and advance the concept with little risk of failure. If the concept fails, the anonymous party will not be tainted by association and can either drop the idea completely or bide their time and wait until a better moment for launching an attack.
Mc Hugh J in his dissenting judgment in the case of Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh ("Teoh's case") [1995] HCA 20; (1995) 128 ALR 353; (1995) 69 ALJR 423; (1995) EOC 92-696 (extract); (1995) 183 CLR 273 (7 April 1995) (1995) 183 CLR 273 at page 311-312 said the following:
"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it' quoting Kioa v West (1985) 159 CLR 550 at 587. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?"
See also Allars, "One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government", (1995) 17 Sydney Law Review 204 at 222-224.
See : Ex parte The Commissioner of Police; Re Deborah Bennett-Borlase SM, unreported; FCt SCt of WA; Library No 970322; 20 June 1997 per Parker J at 17 (with whom Pidgeon and Ipp JJ agreed). In this context jurisdictional error includes a failure to exercise jurisdiction by failing to address or decide a matter that calls for a decision. See Also: Ex parte Minister for Corrective Services, above, at 538, 541 per Malcolm CJ and 542 per Kennedy J.
Lord Bridge of Harwich explained the concept of judicial immunity which is for the purpose of defending the independence of a judicial officer like the learned Justice Chaney and Justice E M Heenan in In re McC (A Minor) [1985] AC 528:
Where the immunity applies in terms of the law, the possibility that, in a rare case, it might be abused or that it might occasionally mask a wrong or ill-judged action by a judicial officer must be tolerated for the wider good that the immunity defends [n re McC (A Minor) [1985] AC 528 at 541.
See also: Anderson v Gorrie [1895] 1 QB 668 at 670-671:
"[I]t is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction."
See: Fingleton v R [2005] HCA 34; (2005) 216 ALR 474; (2005) 79 ALJR 1250; (2005) 153 A Crim R 503 (23 June 2005) at para. 191: per Gleeson CJ:
“191. Where that jurisdiction concerns internal arrangements, directly and indirectly affecting the assignment of judicial officers to hear cases, it is especially important that interference from outside a court should be rebuffed. The immunity in such cases is fully justified as essential to the performance of the judicial function. It should not be cut back. Especially is this so because, under the Queensland laws invoked in this case, Parliament has taken the pains not only to enact the immunity in conventional terms but to extend it in a way protective of a person in the position of the appellant from the criminal prosecution to which she was subjected.”
Abuse of power is different from usurpation of power, which is an exercise of authority that the offender does not actually have.
See the case: Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted) which defines Malfeasance in public office as:
Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do.
McHUGH J and GUMMOW J in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502; (2003) 77 ALJR 699 (12 February 2003) in para.71 quoting R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 at 242 [57] per Lord Woolf MR. said:
“In Coughlan, the Court of Appeal appears to have linked the doctrine of legitimate expectation with respect to substantive benefits to unfairness amounting to an " abuse of power " [2001] QB 213 at 245, 250. In R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835 at 862. See Craig, Administrative Law, 3rd ed (1994) at 667-669; Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed (2000) at 121-123, 332-333, Lord Templeman had placed " abuse of power ", beside breach of natural justice, in a list of the distinct grounds for the remedy of judicial review under s 31(3) of the Supreme Court Act 1981 (UK).
At para 72: their Honours further said:
“Nevertheless, in England, the course of decisions has not stopped there. In R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115 at 1129, Laws LJ spoke of " abuse of power " as the rationale alike of all the "general principles of public law", including both legitimate expectations and procedural fairness as well as Wednesbury unreasonableness, "proportionality"( See: The debate as to the existence of such a ground of judicial review of administrative action in Australia is usefully described in Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed (2000) at 289-292) and "illegality". In Australia, the observance by decision-makers of the limits within which they are constrained by the Constitution and by statutes and subsidiary laws validly made is an aspect of the rule of law under the Constitution. It may be said that the rule of law reflects values concerned in general terms with abuse of power by the executive and legislative branches of government. But it would be going much further to give those values an immediate normative operation in applying the Constitution. The considerations which have informed the development of principle in Australia are considered in the joint judgment of four members of this Court in City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152-154.
And at para.73 of the Lam’s case explained above, their Honours further said:
The notion of " abuse of power " applied in Coughlan appears to be concerned with the judicial supervision of administrative decision-making by the application of certain minimum standards now identified by the English common law. These standards fix upon the quality of the decision-making and thus the merits of the outcome. As was indicated in Coughlan itself, this represents an attempted assimilation into the English common law of doctrines derived from European civilian systems.
See: DEAKIN V WEBB [1904] HCA 57; (1904) 1 CLR 585 (3 November 1904) per Griffith, C.J quoting Hodges J in the following words:
“A Court of law performs the double function of declaring the law, and of applying it to the facts. When the legal principles which govern the case are in controversy, it is the practice of English Courts not to content themselves with a statement of their conclusion, but to express their reasons, which, in the case of Courts of Appeal, are ordinarily accepted by other Courts upon whom the decision is binding, as an authoritative exposition of the law on the point under consideration. If the reasons may be disregarded and treated as mere obiter dicta, because, in the opinion of the Court, the same conclusion might have been reached by another road, the value of judgments as expositions of the law would be sensibly diminished….”
See the case of: AINSWORTH AND ANOTHER v. CRIMINAL JUSTICE COMMISSION [1992] HCA 10; (1992) 175 CLR 564 at paragraph 27 Per: MASON C.J., DAWSON, TOOHEY AND GAUDRON JJ in the following words:
27. It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel M.R. said in Fisher v. Keane(15): (1879) 11 Ch D 353, at pp 362-363.
"according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, (they ought not) to blast a man's reputation for ever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct".
And, as recently as 1990, Brennan J. said in Annetts(16) (1990) 170 CLR, at p 608. See also Heatley (1977) 137 CLR, per Murphy J. at p 495; Aickin J. at p 512; Kioa (1985) 159 CLR, at pp 582, 618-619, 632; Mahon (1984) AC, at p 820:
"Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made."
See the case of: RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS [2003] HCA 56; 216 CLR 212; 201 ALR 327; 77 ALJR 1829 (2 OCTOBER 2003) PER GLEESON CJ, GUMMOW AND HEYDON JJ at paragraph 105 -106.
DE SMITH, WOOLF AND JOWELL, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 5TH ED (1995) AT 459 CITING TRAMOUNTANA ARMADORA SA V ATLANTIC SHIPPING CO SA [1978] 2 ALL ER 870 AT 872.
DE SMITH, WOOLF AND JOWELL, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 5TH ED (1995) AT 459.
DE SMITH, WOOLF AND JOWELL, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 5TH ED (1995) AT 459 CITING R V SECRETARY OF STATE FOR THE HOME DEPARTMENT; EX PARTE SINGH (THE TIMES, 8 JUNE 1987 PER WOOLF LJ).
SEE ALSO: CRAIG, "THE COMMON LAW, REASONS AND ADMINISTRATIVE JUSTICE", (1994) CAMBRIDGE LAW JOURNAL 282 AT 283.
DE SMITH, WOOLF AND JOWELL, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 5TH ED (1995) AT 472.
DE SMITH, WOOLF AND JOWELL, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 5TH ED (1995) AT 472.
CRAIG, "THE COMMON LAW, REASONS AND ADMINISTRATIVE JUSTICE", (1994) CAMBRIDGE LAW JOURNAL 282 AT 283 CITING RABIN, "JOB SECURITY AND DUE PROCESS: MONITORING ADMINISTRATIVE DISCRETION THROUGH A REASONS REQUIREMENT", (1976) 44 UNIVERSITY OF CHICAGO LAW REVIEW 60 AT 77-78
CRAIG, "THE COMMON LAW, REASONS AND ADMINISTRATIVE JUSTICE", (1994) CAMBRIDGE LAW JOURNAL 282 AT 283
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ. in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515; 205 ALR 522; 78 ALJR 628 (1 April 2004) said at para. 160:
…Callinan J states that "social policy ... is a matter for parliament rather than the courts to weigh". With respect, this fits ill with what all members of the Court did, and said, in Cattanach. There Callinan J, in particular, remarked:
"I cannot help observing that the repeated disavowal in the cases of recourse to public policy is not always convincing ... [I]t would be more helpful for the resolution of the controversy if judges frankly acknowledged their debt to their own social values, and the way in which these have in fact moulded or influenced their judgments rather than the application of strict legal principle."
All human beings are born free and equal in dignity and rights...
These opening words of Article 1 of the Universal Declaration of Human Rights, approved by the embryonic United Nations General Assembly on 10th December 1948, sought to capture a timeless truth to frame the protection of our rights. The language echoes the 1776 American Declaration of Independence and resonates still in 21st century calls to action, such as Amnesty International’s 2009 Demand Dignity campaign.
Article 2 translates the poetry of freedom into the solid principle of non-discrimination that protects disadvantaged groups in all international human rights law:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion...
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[6]
Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.
which is:
...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as …….. or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 said as follows:
"[R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the [convention]. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the [convention]". (footnotes omitted).
see also at 301 per Toohey J..
PUBLIC SERVICE BOARD OF N.S.W. v. OSMOND (1986) 159 CLR 657 per Gibbs CJ at para.8:
"Speaking for myself, I would not go so far as to endorse the proposition …. that any failure to give reasons means a denial of justice and is itself an error of law. The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue [the existence of the Pseudo Board] between the parties, and they should indicate the evidence upon which they have come to their conclusions."[my emphasis]
See also what Gaudron ACJ, Gummow, Kirby and Hayne JJ said in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 concerning the duty of a trial judge like[Justice Chaney in VR107 of 2008]:
"The fundamental task of a trial judge is, of course, to ensure a fair trial of the [the Appellant]. That will require the judge to instruct [Members of the SAT Panel] about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the [malicious persecution for common-law debarred FURTHER REMEDY of some non-existent professional misconduct] the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes." (footnotes omitted) [My emphasis].
At para. 13 of the Osmond case quoted above, their Honours further said:
Most people would agree that it is desirable that SAT as a public body exercising discretionary powers of the kind now under consideration should as a general rule give reasons for their decisions, proficiently and relevantly. As Professor Wade said, op. cit., at p.486:
"The giving of reasons is required by the ordinary man's sense of justice and is also a healthy discipline for all who exercise power over others."
See the website of the Supreme Court of NSW in an article entitled: A Closer Look at Henderson v Henderson at: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_handley_061201a which states the following:
“Res Judicata is the general description in English law which covers the defences [1] of merger in judgment, cause of action estoppel and issue estoppel which protect the public and private interests in the finality of litigation. The so-called extended doctrine of res judicata applies where these defences are strictly not available, but the further proceedings would undermine the finality of an earlier judgment and are therefore an abuse of process.
GIBBS C.J., MASON AND AICKIN J in their joint judgment in the case of PORT OF MELBOURNE AUTHORITY v. ANSHUN PTY. LTD. [1981] HCA 45; (1981) 147 CLR 589 at paragraph 9 said the following:
“However, he held that the principle of Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100, at pp 114-115 [1843] EngR 917; (67 ER 313, at p 319) applied, and granted a perpetual stay on the ground that the claim was a matter which should have been raised in earlier litigation (1980) VR 321 . The Full Court on appeal agreed that, although it was not a case of issue estoppel, it was a case in which the Henderson v. Henderson principle applied. Whereas the primary judge held that he had a general discretion to grant or refuse a stay, the Full Court concluded that once it was determined that the matter of the agreement properly belonged to the first action and might have been brought forward in that litigation by the exercise of reasonable diligence, the primary judge (1981) VR, at p 89 : "had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule". The Full Court went on to consider whether "special circumstances" existed and, having decided that question in the negative, dismissed the appeal (1981) VR 81. (at p595)
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002.
See also: http://www.conservapedia.com/Judicial_activism which states:
Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.
In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.
I quote the case of Henderson v. Henderson ((94) [1843] EngR 917; (1843) 3 Hare 100 at 115 [1843] EngR 917; (67 ER 313 at 319) the following words:
“In trying this question I believe I state the rule of the [115]Court correctly when I say that, where a given matter becomes the subject of Litigation in, and of a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances} permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ….
Brennan, Deane, Toohey and Gaudron JJ in R v Byrnes & Hopwood (1995) 183 CLR 500 at pages 514 to 515, quoted in CLARK & FORGE -v- R [2004] WASCA 217 at para 175 speaks of the meaning of “improper use” of Power or Authority as follows:
"Impropriety does not depend on the [decision maker’s] consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the[decision maker] by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case. When impropriety is said to consist in an abuse of power , the state of mind of the [decision maker] is important: the [decision maker’s] knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to abuse of power. It may consist in the doing of an act which the [decision maker] knows or ought to know that he has no authority to do." [My emphasis within brackets).
See the judgment of Justice Heenan at para. 12 when he said:
“Mr Chin's application does not stop at that point. He was involved in proceedings concerning associated issues in the Court of Appeal and by a judgment of the Court of Appeal in CACV 105 of 2008 his appeal was dismissed: Chin v Legal Practice Board of Western Australia [2009] WASCA 117. He later sought special leave to appeal to the High Court of Australia from that decision but special leave was refused by the High Court of Australia on 10 March 2010: Chin v Legal Practice Board of Western Australia [2010] HCASL 4.”
See the case of: PUBLIC SERVICE BOARD OF NSW V OSMOND [1986] HCA 7; (1986) 159 CLR 656 (21 FEBRUARY 1986) per GIBBS C.J. at paragraphs 5, 8 and 13 stated as follows:
5. Kirby P. based his conclusion that the Board was bound to give reasons for its decision on the broad principle that the common law requires those entrusted by statute with the discretionary power to make decisions which will affect other persons to act fairly in the performance of their statutory functions. He said:
"The overriding duty of public officials who are donees of statutory powers is to act justly, fairly and in accordance with their statute. Normally, this will require, where they have a power to make discretionary decisions affecting others, an obligation to state the reasons for their decisions. That obligation will exist where, to do otherwise, would render nugatory a facility, however limited, to appeal against the decision. It will also exist where the absence of stated reasons would diminish a facility to have the decision otherwise tested by judicial review to ensure that it complies with the law and to ensure that matters have been taken into account which should have been taken into account or that matters have not been taken into account which ought not to have been taken into account."
Craig v South Australia (1995) 184 CLR 163 at 175 - 176:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
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