Practice Note No. 119
REPEALED - Common Law Division - Administrative Law List
PRACTICE NOTE No 119
Common Law Division - Administrative Law List
The purpose of this Practice Note is to explain the operation of the Administrative Law List, which is provided for by Part 14D of the Rules.
The Supreme Court exercises both common law and statutory jurisdiction with respect to public bodies and officials. The common law jurisdiction provides for judicial review of the action and decisions of public bodies, officials and various tribunals. The statutory jurisdiction provides for appeals and applications to the Court from the decisions of various tribunals and quasi-judicial bodies.
The Administrative Law List includes proceedings:
- for commanding or otherwise requiring a public body or a public officer to perform a public duty;
- for prohibiting or otherwise restraining a public body or public officer from performing or purporting to perform any act;
- for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer; and
- in appeals or applications to the Court in respect of decisions of a public body or a public officer, under any enactment specified in the Rules.
The common law grounds for judicial review have been refined in recent years. They include:
- "ultra vires" - lack of jurisdiction;
- lack of procedural fairness;
- acting under dictation;
- real or apprehended bias;
- inflexible application of a policy;
- taking into account irrelevant considerations;
- failing to take into account relevant considerations;
- extraneous (improper) purpose;
- error of law on the face of the record;
- no evidence;
- bad faith; and
- "Wednesbury" unreasonableness.
STATUTORY APPEALS AND APPLICATIONS
The Administrative Law List also includes;
- the matters specified in Schedule H to the Rules;
- matters assigned to the List by specified rules in Part 77; and
- applications under ss 61 or 62 of the Fair Trading Tribunal Act 1998, other than proceedings on an appeal or referral relating to the Retirement Villages Act 1999.
The matters specified in Schedule H to the Rules include matters arising under a number of Acts which at publication of this Practice Note include:
Administrative Decisions Tribunal Act 1997, ss 118, 119, 122;
Dividing Fences Act 1991, s 19;
Freedom of Information Act 1989, s 58A(1);
Independent Commission Against Corruption Act 1988;
Motor Dealers Act 1974, ss 38(2), 38(3B)(a), Part VA;
National Crime Authority Act 1984 (Cth), ss 32, 32A;
Ombudsman Act 1974, ss 21A, 35A, 35B;
Police Integrity Commission Act 1996;
Racial Discrimination Act 1975 (Cth), s 24;
Royal Commissions Act 1923, s 18B; and
Supreme Court Act 1970, s 70 (ouster of office).
Applications under Part 77 of the Rules include applications arising under the Community Welfare Act 1987 s 66, New South Wales Crime Commission Act 1985, Nurses Act 1991 s 67, Chiropractors and Osteopaths Act 1991 s 52, Electricity Supply Act 1995 s 95, and the Gas Supply Act 1996 s 17.
As a general rule, all proceedings for review or in the nature of appeals from administrative bodies or administrative decision makers are assigned to the Administrative Law List, but not appeals from the Local Court, whether in committal proceedings, summary jurisdiction or civil claims, or from any other court presided over by a Magistrate, such as the Coroner's Court, Licensing Court or Mining Wardens' Court. Such matters are assigned to the ordinary general Common Law Division List.
Notwithstanding Part 14D and Schedule H, proceedings in the nature of appeals from bodies presided over by a Judge (e.g. of the District Court) are not assigned to the Administrative Law List, but to the Court of Appeal (Supreme Court Act, s 48).
Matters which were formally assigned to the Administrative Law List under the Taxation Administration Act 1996 (e.g. stamp duty, payroll tax and land tax appeals) are now assigned to the Equity Division, see Amendment No. 340 of 30 June 2000.
Judicial Proceedings with respect to Environmental and Planning laws are within the exclusive jurisdiction of the Land and Environment Court.
Grounds of appeal and applications from administrative tribunals depend on the terms of the statute setting up the particular tribunal, but invariably include excess of jurisdiction and denial of natural justice, whilst in some cases (e.g. Administrative Decisions Tribunal Appeal Panel, Residential Tribunal, Fair Trading Tribunal) error of law is also available.
Proceedings appropriate for the Administrative Law List should be commenced in that list in accordance with SCR Pt 14D r 2(1). If not so commenced, they may be transferred to that list pursuant to Pt 14D r 2(3) or transferred from another Division: Pt 14D r 2(4). Proceedings are generally commenced by summons stating an appointment for hearing (Form 6) although on occasions where there is an extensive challenge to the decision of a public official or public body they may be commenced by statement of claim. In either case the words, "Administrative Law List" should be added immediately under the words, "Common Law Division" on the left hand side of the front page of the originating process. These words should also be included in the Notice of Appearance and all other documents filed in the proceedings. In either case they will be given a date for a directions hearing before the Administrative Law List Judge on a Tuesday morning at 9.30 am or if he or she is unavailable another Judge acting in his or her place. Occasionally the Directions List is transferred to Wednesday at the same time.
Proceedings for prerogative relief in relation to the decisions of tribunals or other public officials or public bodies are governed by Pt 54. Such latter applications often also seek other administrative law relief such as declarations and injunctions. It should be noted that the prerogative writs have been replaced by judgments and orders to a similar effect: Supreme Court Act 1970, s 69.
Proceedings by way of statutory appeal from an administrative tribunal pursuant to the provisions of the Act constituting the relevant tribunal are governed by Pt 51A of the Rules. Such appeals must be instituted within 28 days (Pt 51A r 3), and there must be served with, or subscribed to the summons, a statement of the grounds relied on (Pt 51A r 5). Provision is also made for cross-appeals (Pt 51A r 12) and notices of contention (Pt 51A r 13). Where the appeal is only on a question of law and there is no allegation of denial of natural justice or procedural fairness or excess of jurisdiction, the only evidence necessary is an affidavit annexing or exhibiting a copy of the relevant judgment, and where appropriate, a transcript of the evidence before the tribunal and a copy of the exhibits.
In relation to both applications for prerogative or other administrative law relief and statutory appeals, the relevant tribunal, public body or official must be made a party to the proceedings and served with a copy of the summons, except in the case of the Administrative Decisions Tribunal Appeal Panel. Where such tribunal or public body or official files a submitting appearance save as to costs not less than 2 clear days before the first directions hearing, such tribunal, public body or official need not be represented at such directions hearing but will be automatically excused from further attendance. If another party wishes to seek an order for costs against a submitting defendant, it must prior to such directions hearing, or within such further time as the Judge may allow, give notice in writing to such submitting defendant setting out the grounds upon which such costs order will be sought. See Pt 11 r 4(3) and (4).
Urgent applications, e.g. for ex-parte injunctions and/or leave to serve short notice of proceedings, which on commencement will be appropriate for entry in the Administrative Law List should be made to the Administrative Law List Judge or if he or she is not available the Judge designated to assist the List Judge, or if both are unavailable, to the Common Law Duty Judge for that week. Depending on the urgency of the matter, the Judge who deals with the urgent application will normally make the proceedings returnable in the ordinary directions list on the following Tuesday and will require a summons and affidavit to be filed and served.
Urgent interlocutory relief, including stays of orders for possession of the Residential Tribunal, normally require the plaintiff to give the usual undertaking as to damages: Pt 28 r 7(2).
In cases involving stays of execution in appeals from the Residential Tribunal where the plaintiff is unrepresented, an order is commonly made for service of the summons, affidavit and notice of the stay on the estate agent who appeared for the landlord in the Tribunal. This generally has the effect of ensuring that the respondent is aware of the proceedings and someone appears on his or her behalf at the directions hearing.
When the proceedings come before the List Judge for directions, all parties should be represented by someone familiar with the case so that the Judge can give directions to enable the case to be prepared for hearing. Such directions will typically include dates for the filing of affidavits, discovery, particulars and/or production of documents (if necessary) and the determination of any interlocutory issues. In the ordinary case the only directions necessary are dates for the filing of affidavits. Any timetable fixed should be adhered to so as to avoid unnecessary appearances in the Directions List and the costs occasioned with such appearances. If a party is in default in adhering to the timetable set and such default necessitates additional appearances in the Directions List, consideration may be given to ordering the party in default to pay the costs of the additional appearances. Differential Case Management (Practice Note No. 88) does not apply to proceedings in the Administrative Law List.
Only in exceptional cases will directions be given for the filing of Points of Claim and Points of Defence, but in appropriate cases, orders for particulars may be made e.g. where a plaintiff seeks orders in the nature of prohibition or certiorari but does not specify the grounds on which such relief is sought.
Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Judge may at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s 49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the Administrative Law List is normally by affidavit.
Interlocutory motions such as for summary judgment, to strike out the claim or any part thereof or for an expedited hearing should be made by notice of motion returnable in the Directions List. Unless such orders are consented to, they will generally not be heard on the Tuesday, but a date will be fixed for hearing when the List Judge is available. If they are going to be lengthy or the List Judge will not be available within a reasonable time they may be referred to the Common Law List Judge to obtain a special fixture.
When the proceedings are ready for a final hearing they are stood over to the next call-up before the Common Law List Judge for a hearing date to be allocated, although when the hearing has been expedited such matters will be referred to the List Judge on a Monday or Thursday at 9 am to fix a hearing date. Except in cases of extreme urgency, this will not be done until all affidavits have been filed and the matter is otherwise ready for hearing.
There is now express power in the Rules to refer certain proceedings to a Master (Schedule D, Pt 3 para 5) and this power is almost invariably exercised when available, particularly in relation to appeals from the Residential Tribunal and the Fair Trading Tribunal. In such cases the List Judge examines the issues in the case at the first directions hearing, gives directions for the preparation of the case and then lists the matter for further directions in the Master's List before the Deputy Registrar at 9.30 am on a suitable day. In such cases there is no right of appeal from a Master to a Judge, but only to the Court of Appeal, and usually only by leave of the Court of Appeal: Pt 60, rr 10, 17.
Proceedings in the List will not be stood over generally, even by consent. If parties require time to consider their position or negotiate a possible settlement, proceedings may, with the Judge's approval, be
adjourned for a comparatively lengthy period, but always to a fixed date with (if appropriate) liberty to restore the matter to the Directions List within that time.