I quote paragraph 33 of the Judgment of Justice Ken Martin in the following words
33 The plaintiff to date has been unable to assist me at all in terms of what jurisdictional challenges he would seek to raise at an inter parties hearing by reference to s 36, bearing in mind that the matter is not in the nature of an appeal. In his oral submissions to me, the plaintiff has, in a loose sense, articulated his grievance based upon duress and unconscionability relating to the circumstances in which he paid $6,000 to the first defendant towards the aggregate settlement of $11,500. The plaintiff now seeks to resile from that 2007 settlement.
I would now like to quote the meanings of Jurisdictional error as provided by the High Court of Australia in the case referred to as Craig; which jurisdictional error I am ascribing to Registrar Wilde Duress-Vitiated Consent Order in FR417 of 2007, Magistrate Musk decision in FR944 of 2007 and Commissioner Herron's decision in DC Appeal No.6 of 2008 and Magistrates Michelides decision in FR417 of 2007. I hope that the explanation of what is termed as Jurisdictional Error as applicable to the s.36 Review Order of Justice Hasluck will help clear the doubts that shows conclusively that Justice Ken Martin is indeed in error. I invite comments from readers:
Re Carey; Ex Parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219 (26 October 2006) para.116:
Craig for a more thorough exposition of the principles applicable to the scope of such jurisdiction (at 177 - 178):
"Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern."
181 The scope of jurisdictional error depends upon whether or not the decision-maker has authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law: Craig at 179. If it does not have authority to do either, there can be judicial review in the broad sense where the distinction between jurisdictional error and error within jurisdiction is of no practical significance. If the decision-maker has that authority, the Court's judicial review powers are confined to errors of jurisdiction in the narrow sense. The High Court in Craig identified five types or categories of such errors. It did not suggest the list was exhaustive. However, the appellants did not contend it should be expanded in any particular way to accommodate the errors in this case. The five categories are as follows. First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional "fact") there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
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