Scope of orders available on judicial review

 In the exercise of the Court’s supervisory jurisdiction, the Court is not limited to granting only that kind of relief which might have been available under the prerogative writs. The Court can make an order not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the Court

Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9

 

  1. On one view, the proper outcome would be to allow the application for review in so far as it seeks to strip out the amounts of interest improperly included by the appeal judge in the District Court. The result would be an order that the builder pay the owners an amount of $104,365.60 which was the amount ordered by the Tribunal reduced, in accordance with the decision in the District Court, by the outstanding amount due under the contract, namely $12,215.
  2. This is the practical consequence of the foregoing reasoning, but the question is whether the Court has power to do more than set aside the orders in the District Court and remit the matter for that Court to make further orders, with a possible further remittal to the Tribunal (now NCAT). As the District Court is a party to the proceedings in this Court and would in any event be bound to follow the direction of this Court, on one view remittal would be a futility involving extra costs but no advantage. The question is then whether in the exercise of the Court’s supervisory jurisdiction with respect to another court in the judicial hierarchy, the Court is limited to granting under s 69 of the Supreme Court Act only that kind of relief which might have been available under the prerogative writs.
  3. In Solution 6 Holdings Ltd v Industrial Relations Commission (NSW), [49] Spigelman CJ noted that there might be features of the old prerogative writs which no longer applied to the statutory relief. [50] Although at least in some respects that must be so (the statutory intention being to free the jurisdiction from the procedural constraints which afflicted the writs), Handley JA declined to join in any suggestion that there had been an alteration to “the substantive law governing judicial review”. [51] The extent of that reservation was unclear; the Chief Justice was dealing with the scope of the discretion to refuse relief.
  4. The issue as to the scope of the available relief arose in Wende v Horwath (NSW) Pty Ltd. [52] In dealing with an application to review a judgment of the District Court on an appeal from a costs assessment, I said at [101]:

“In the present case, setting aside the judgment of the District Court will not give effect to the legal conclusion upon which this judgment is based, namely that the certificates of assessment were invalid. Without suggesting that this court has power to make orders in substitution for those made in the District Court otherwise than in circumstances where the orders to be made are necessary in law, that qualification is satisfied in the present case. Accordingly, this court can and therefore should make the orders which should have been made in the District Court, in exercise of the statutory powers referred to above.”

  1. The other member of the majority, Beazley P, agreed with the orders I had proposed. [53] A similar course was identified in SAS Trustee Corporation v Woollard [54] and in Wang v Farkas (No 3). [55] However, in Wende v Horwath (No 2), [56] Beazley ACJ stated that “on reflection, not only does that question remain open, I consider the better view is that this court does not have power to make substantive orders on an application brought pursuant to s 69.”
  2. Despite those misgivings, the authority of this Court supports the view that the Court can make an order in its supervisory jurisdiction not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the Court. That course involves only a notional interference with the authority of the court below, and does not involve the exercise of any discretionary power on the part of this Court.