What is the difference between an appellate and a supervisory (review) jurisdiction

Given the procedural history outlined above, it is significant that the amendment did not refer to written evidence such as affidavits and documentary material , nor did it refer to the transcript, whether of evidence or submissions….

An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked.

First, grounds involving error of law on the face of the record, but not jurisdictional error, may be removed by statute. So much is expressly contemplated by s 69 5 of the Supreme Court Act ; see Probuild Constructions at [30], [57]-[59], [99]. Secondly, the distinction between jurisdictional error and error of law on the face of the record has evidentiary consequences: see above, Allianz v Kerr at [18]-[19].

A claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose. Thirdly, and consequentially, judicial review is not be equated with a right of appeal limited to errors of law, let alone a general right of appeal: Allianz v Kerr at [19]. Accordingly, where such a right is available, it will generally provide a more effective remedy than judicial review. The limited nature of the supervisory jurisdiction is reflected in the limited powers available to the Court.

The Court will therefore quash or set aside an invalid decision. In Wende , the Court held that where a decision was set aside, but, as a matter of law, only one order was available, the Court had power to make such an order: Wende at [95]-[]. That power is now confirmed by s 69 3 b. Section 48 of the Supreme Court Act assigns some judicial review proceedings to the Court of Appeal; otherwise, such matters are assigned to the Common Law Division by operation of s 49, subject to Part 7.

Review of proceedings determined in the criminal appeal jurisdiction of the District Court, or by a judge of the Supreme Court exercising non-judicial power and hence not appealable , are assigned to the Court of Appeal; most other proceedings will be dealt with in the Division, but subject to appeal to the Court of Appeal.

Importantly, where a decision is sought to be quashed, proceedings for judicial review of must be commenced within 3 months of the date of the decision: UCPR, r Failure to comply will require an application for an extension of time, which the court may grant, subject to consideration of the matters set out in UCPR, r Judicial review proceedings must be commenced by summons: r The requirement is intended to ensure that the aggrieved party articulates a case for relief in the initiating process which defines the nature and scope of the dispute and enables the Court to assess what issues are likely to arise in the proceedings.

Conformably with the obligation in r Where a party wishes to appeal to the Court of Appeal from a final judgment or order made in judicial review proceedings in the Common Law Division, whether an appeal lies as of right or whether leave will be required depends on the terms of s An appeal from a decision given after a hearing in the Common Law Division is by way of rehearing: s 75A 5.

Pursuant to s 75A 7 , the Court of Appeal may receive further evidence. Section 39B 1A also confers jurisdiction on the Federal Court "in any matter The common law jurisdiction of the Federal Court is accordingly at least as extensive as the jurisdiction of the High Court.

For practical purposes the question in applications for common law judicial review in the Federal Court is whether there has been an error of law by the administrative decision-maker. In addition to its common law jurisdiction, the Federal Court also has statutory jurisdiction to undertake judicial review pursuant to the AD JR Act. The third of the requirements may have been the most significant.

This is because the availability of grounds of review is often of no assistance unless the reasoning of the decision-maker has been exposed to enable it to be tested against the grounds.

They restated the existing common law. As Mason J said in Kioa v West : "The statutory grounds of review enunciated in s 5 1 are not new - they are a reflection in summary form of the grounds on which administrative decisions are susceptible to challenge at common law" Indeed, in Kioa v West the High Court read the procedural fairness ground in s 5 as limited by the common law.

The continued existence of rights to judicial review at common law, alongside statutory rights of review, has inevitably tended to lead to decisions which equate the two. This is, of course, consistent with Kioa v West. Moreover, the convenience of the statement of grounds in the AD JR Act has tended to influence the common law grounds. Any tendency to stultify the grounds of review has in part been countered by the separate existence of the common law grounds, which are capable of development, and by the presence of a catch all ground in s 5 1 j , namely, "that the decision is otherwise contrary to law".

It is not impossible, however, that the rigid statutory statement of the grounds, coupled with their being read as restating the common law, has lead to some limitation in the development of grounds of review both at common law, and under s 5.

The reluctance of Australian courts to embrace want of proportionality as a ground, while firmly based in separation of powers considerations and their reluctance to enter the world of merits, may have been partly influenced by the presence of the ground of reasonableness in, and the absence of any concept of proportionality in, s 5.

That said, it seems to me that the benefits far outweigh the detriments. It is, of course, untidy to have complementary bases for judicial review which will require a court, at least notionally, to examine two claims in every case.

In practice this does not generally add to time or cost, but it could. A system of jurisprudence in which one avenue will lead to a remedy and the other will not is not a system which will do justice, even according to law, in every case. Other limitations on AD JR Act review have come from the limitation of review to "a decision of an administrative character made Certain decisions are expressly excluded.

These limitations, however, do not affect common law judicial review. So what are the benefits? It is a mistake, of course, to think of the ambit of the Act as confined to its application to litigation in the Federal Court. The Act's greatest influence is, of course, its influence on initial decision-making. It provides a guide to primary decision-makers. In that role, because of its simple characterization of the grounds of review, it must have had a significant impact. This benefit must extend to lawyers advising clients, because it provides a simple basis for that advice.

The Act has also developed its own jurisprudence which is regularly applied. Although applicants habitually frame their claim in the alternative under the Act and under s 39B this does not create real problems. As well as a negative aspect of alternative claims there is the positive aspect that where justice may not be achieved under the one, the remedy may be under the other. Thirdly, the AD JR Act gives a much greater discretion in the remedies that may be granted than the common law does.

In particular, decisions can be quashed or set aside "from the date of the order or from such earlier or later date as the court specifies" Problems of voidness versus invalidity do not arise. In addition, although questions of standing under the AD JR Act are not without their complexity "a person who is aggrieved by a decision" may apply 18 , they may not be as difficult to resolve as common law questions of standing.

The problems arising from the diversity of jurisdiction are, however, associated, not so much with the presence of the AD JR Act, but with the constitutional requirement that it must co-exist with common law judicial review. That bar is, of course, a vital protection of the role of the courts in supervising administrative decision-making. The proper resolution of the dilemma seems to me to be for common law judicial review to be kept for cases in which statutory review provides no remedy and cases in which legislation attempts to limit judicial review whether by privative clause or otherwise.

This is how, in practical terms, the cases are dealt with at the moment. This has not happened, however, in New South Wales. Judicial review in New South Wales is confined to common law review. Jurisdiction - extraordinary writs - supervisory control - original proceedings.

The supreme court is an appellate court but is empowered by Article VII, Sections 1 and 2 of the Constitution to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. Proceedings commenced in the supreme court originally to obtain writs of habeas corpus, injunction, review or certiorari, mandate, quo warranto, and other remedial writs or orders, shall be commenced and conducted in the manner prescribed by the applicable sections of the Montana Code Annotated for the conduct of such or analogous proceedings and by these rules.

The supreme court has supervisory control over all other courts and may, on a case-by-case basis, supervise another court by way of a writ of supervisory control. Supervisory control is an extraordinary remedy and is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions, and when one or more of the following circumstances exist:. An original proceeding in the form of a declaratory judgment action may be commenced in the supreme court when urgency or emergency factors exist making litigation in the trial courts and the normal appeal process inadequate and when the case involves purely legal questions of statutory or constitutional interpretation which are of state-wide importance.

The proceedings referred to in sections 2 , 3 , and 4 of this rule shall be commenced as follows:. A petition may be made to the supreme court at any time.