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Dr. Paul Mae

Laucala, 2017
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Errors of Reasoning Table
Errors of Reasoning

Error of law

Improper purpose

Unauthorised consideration

Unreasonableness

Lack of evidence

Fraudulent evidence

Uncertainty
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 Describe the circumstances in which a decision will be
set aside because of an error of law;
 Describe the rules related to the grounds of fraud and
uncertainty;
 Explain how the principles discussed in the this topic
illustrate the operation of important threshold concepts
within administrative law;
 Distinguish between the application of various rules
and exceptions in relation to a variety of different fact
situations.

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HISTORY
Error of law within jurisdiction has a complex history as a ground
for invalidating decisions.
Until recently courts took a narrow view of what constituted lack
of jurisdiction
According to the classical theory errors of law which were made
within jurisdiction, could only be set aside if the error was apparent
in the record
The Summary Jurisdiction Acts 1848 and 1858 made it more
difficult for the Court of Queen’s Bench to set aside decisions for
error of law on the record
In theory, the Courts did not lose the power to quash a decision on
the ground of errors of law, however, in practice the result was that
the courts lost virtually all opportunities to quash decisions on this
ground because the record of the proceedings became so minimal.
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In 20th century, Parliament in England required tribunals
which follow court-like procedures to write full decisions
This allows for the detection of errors of law in the
reasoning of the decisions of such tribunals
R v Northumberland Compensation Appeal Tribunal,
Ex parte Shaw [1952]
In 1951 the court was persuaded to exercise the power to quash
a decision where an error of law made within jurisdiction was
apparent in the record of the decision.

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Facts: Legislation in England authorised the award of compensation
to staff of hospitals that were taken over by the Government, and it
provided that in assessing compensation, account was to be taken of
work not only with the hospital board, but also with any local
authority. The tribunal which assessed the compensation failed to
take account of the period during which the applicant had worked for
another local authority. Counsel for the tribunal admitted that an error
had been made in the calculations for the award, although it did not
appear in the record of the decision of the tribunal
Held: The Court of Appeal held that “an error admitted openly in the
face of the court can be corrected by certiorari as well as an error that
appears on the face of the record.”

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The notion of what constituted an error of law,
and also what constituted the record of a decision
were expanded in the following years to include:
i. Applications of law to facts to which do not
reasonably support it
ii. Record of decision expanded to include documents
referred to in the decision

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The courts in England have accepted that an error
of law has been committed:
When there is an express mis-statement of the law,
And also where it is clear from the record that the law is
applied to facts which do not support it (or as it is
sometimes said, if there is no evidence at all, or if there is
no reasonable evidence, to support the way in which the
law has been applied)

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Facts: Subsidiary legislation in England provided for compensation to be
paid to employees who were injured during the course of their
employment at a certain specified rate. It also provided that in the case of
paired organs, such as eyes, ears and kidneys, compensation was to be
paid at a higher rate if the other organ was already defective. Gilmore
applied for compensation for injury to his left eye which he suffered
during the course of his employment. The tribunal awarded compensation
at the lower rate. But the medical report which was attached to the
decision of the tribunal, and which the Court regarded as part of the record
of that decision, indicated that some years before that; Gilmore had
suffered injury to his right eye.
Held: There was an error in the application of the jurisdiction.
Denning LJ said:
 “It is now settled that, when a tribunal comes to a conclusion which could not
reasonably be entertained by them if they properly understood the relevant
enactment, then they fall into error in point of law. When the primary facts appear
on the record, an error of this kind is sufficiently apparent for it to be regarded as
an error on the face of the record such as to warrant the intervention of this court
by certiorari.” 10
2 different views:
1. England
Courts have been willing to accept as part of the record of a
decision not only documents referred to in that decision, but also
reasons given separately from the decision, even oral reasons
which were later transcribed
See R v Chertsey Justices, Ex parte Franks [1961]
2. Australia:
The High Court has firmly held that the oral or written reasons for
a decision, when they are separate from the decision, are not part
of the record for the purposes of certiorari
see Craig v State of South Australia (1994)
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The ground of error of law within jurisdiction (on the
record) has not grown so rapidly as was expected
Reasons:
Because of a more modern approach that views nearly all errors
as amounting to a lack of jurisdiction
Again this is argued on the basis that all of the various grounds
should be seen as implicit in legislation that grants powers

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ANISMINIC LTD V FOREIGN
COMPENSATION COMMISSION
[1969]
The House of Lords greatly extended the concept of lack
of jurisdiction to include unauthorised considerations and
unauthorised purposes.
It removes error of law in jurisdiction as a ground of
judicial review.

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There are 3 Reasons for the decline of error of
law in jurisdiction:
1. The need to rely upon error of law has been much
reduced, because normally an error of law will result
in an unauthorised consideration or unreasonable
decision (Anisminic case)
2. The ground of lack of jurisdiction is easier to prove
because it does not have to be apparent in the record
of the proceedings
3. Lack of jurisdiction is seen as a more robust ground
generally and one that is not so easily removed by
statutory provision
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Since then a number of cases have support the view that
error of law is no longer relevant.
Pearlman v Harrow School (1979) – Lord Denning is of the view
that the difference between errors relating to jurisdiction and
errors of law within jurisdiction should now be discarded.
O’Reily v Mackman (1983) – Lord Diplock said that the
Anisminic case for practical purposes abolished error of law as a
ground of judicial review.
R v Greater Manchester Coroner [1985] – Since Anisminic the
requirement that error of law within jurisdiction must appear on
the record is now obsolete.

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Although such comments would seem to herald the total
demise of error of law within jurisdiction as a ground of
judicial review, it has still continued to be relied upon on
some occasions.
R v Evesham Justices, Ex parte McDonagh [1988]
Facts: Justice of Peace made an order prohibiting the publication of
the address of the defendants in a criminal case. His reason was to
control the behavior of persons in their courts.
Held: This order was quashed by the reviewing court for error of
law.
It held that common law only permits justices to make such an
order if it is necessary to protect the administration of justice.
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Although error of law within jurisdiction has still survived
in England as a ground of judicial review, it is now
common to regard it as another form of lack of legal
authority
In R v Hull University, Ex parte Page [1993]
“Thenceforward it was to be taken that Parliament had only
conferred the decision-making power on the basis that it was to be
exercised on the correct legal basis: a misdirection in law in
making the decision theretofore rendered the decision ultra vires.
The fundamental principle is that the courts will intervene to
ensure that the powers of public decision-making are exercised
lawfully.” 17
Australia:
The courts have not been as enthusiastic as the
courts in England to regard unauthorised
considerations and purposes as forms of lack of
legal authority, and so they have continued to
regard error of law within jurisdiction as an
important ground of judicial review in practice

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SA v Federated Clerks Union (1991) 102 ALR
161
This court has not accepted Lord Diplock’s view that
the distinction between jurisdictional and non-
jurisdictional errors was for practical purposes
abolished by Anisminic.
Houssein v Under Secretary, Department of
Industrial Relations and Technology (1982)
The distinction was maintained by the court

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USP:
So far there seems to have been no decision in countries
within the USP region which has relied on error of law
within jurisdiction as a ground of judicial review.
Likewise, there has been no discussion about the role and
significance of error of law within jurisdiction as a ground
for judicial review.
This may indicate that in these countries, as in England,
legal counsel prefer to rely on unauthorised considerations
and purposes as grounds of judicial review

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There are several kinds of decisions which the courts in
England have held as a matter of principle should not be
subject to error of law within jurisdiction, even when that
error is apparent in the record:
a) Decisions of superior courts of law
 JR is not available to a decision of the High Court/Superior
Court as one judge is not expected to review a decision by a
collegue
 In re A Company [1981]
b) Decisions of official visitors
 Decisions by official visitors should not be set aside on the
ground of errors of law within jurisdiction.
 R v Hull University, Ex parte Page [1993]

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c) Informal Tribunals
 Courts are reluctant to subject tribunals operation with little
technicality to judicial review.
 R v Preston Supplementary Benefits Appeal Tribunal [1976]

d) Decisions which are stated by written law to be not able

to be reviewed
 When law expressly states that a decision of a governmental
nature is not able to be quashed, reviewed or called into
question
 S.E Asia Fire Bricks v Non-Metallic Products
Manufacturing [1981]

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Since the 19th century it has been clear that a
decision of a subordinate court may be set aside
by certiorari if:
it was based upon fraudulent evidence, and
provided that fraudulent evidence affected the decision,
and was specifically pleaded and clearly proved
However, there are still some aspects of this
ground of judicial review which are unclear.

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“The Courts have held that they may issue
certiorari to quash a decision of a subordinate
court if that decision was based on fraudulent
evidence”
In this context, the concept of fraud is wide, and
includes:
express statements that are known to be untrue,
wilful suppressions of the truth
statements or suppressions that are made recklessly as
regards to their truthfulness

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Re Taraire Block No. 1 [1916]
Facts: A native land court in New Zealand made a
succession order in favour of a particular applicant.
Held: The Supreme Court held that certiorari could
issue to quash this succession order, because the
successful applicant had fraudulently concealed the fact
that the owner of the land was still alive

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a) Fraud must affect the decision
Courts will not intervene on the ground of fraud unless it is clear
that the fraudulent statements have actually affected the decision.
On the other hand, if the fraud did not affect the decision, because,
for example, the fraudulent statement was not believed, or because
the same decision would have been made regardless of the fraud,
the courts have held that they should not intervene.
R v Knightsbridge Crown Court, Ex parte Goonatilleke [1985]
 Facts: A crown Court convicted the defended. However, it was proven that
the prosecution witness had fraudulantly suppressed the fact that he had many
previous convictions.
 Held: The court did not issue certiorari to set aside the decision.
 This was because it did not think that the crown court would have made a
different decision, even if it had known about the witness’s convictions

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b. Must decision have been procured by fraud?
It is clear from the cases that if the person in whose favour the decision
is given, gives fraudulent evidence or another person does so on his or
her behalf, the decision will be set aside
But what if the person who gave the fraudulent evidence was not the
person in whose favour the decision was given, and was not acting in
collusion with that person?
Should the courts still invalidate the decision because of the fraudulent
evidence?
 Courts in different jurisdictions have answered this question differently
 England - fraudulent evidence given by some person other than the person ( a
third party witness) in whose favour the decision was made is regarded as not
providing ground to quash that decision
 Northern Ireland and some other jurisdictions - it does not matter whether the
party benefiting from the decision has colluded in any way

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R v County Court Judge of Tyrone [1961] NI
167
Facts: Justices in NI held that a man was the
father of an illegitimate child.
Held: The High Court quashed this decision by
certiorari on the ground that two witnesses whom
the complainant called had given prejured
evidence.

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Fraud is serious misconduct to allege against
anyone. Therefore, the courts have insisted that
when fraud is relied on as a ground for quashing a
decision:
 the pleadings must specifically state the
allegations of fraud
 the proof of the fraud must be strong “clear and
manifest” proof
 Most cases have involved subordinate courts but
there’s no reason why the rules would not now
apply to administrative tribunals as well
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It is not often that governmental decisions
have been challenged by judicial review on
the ground of uncertainty, but this has
occasionally occurred
The ground arises where a decision is
considered so uncertain that its meaning
cannot be discerned

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R v Fenny Stratford Justices, Ex parte Watney
Mann (Midlands) Ltd [1976]
Facts: Justices made an order that the noise level in a
certain public house “shall not exceed 70 decibels”.
Held: The court quashed the order by certiorari on the
ground that it was uncertain, because it was not clear
where the decibel level was to be measured.

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In a number of cases courts in England had held that the
proper test to apply was:
“Was the decision sufficiently certain to enable those who had to
comply with it what they had to do?”.
However in 1961 the House of Lords indicated that a higher
test for uncertainty should be applied by the courts, i.e.
“The decision is so uncertain that no intelligible or sensible meaning
can be given to it”
This higher, stricter test has been applied on two subsequent
occasions by the Court of Appeal, and on both occasions the
governmental decision was held to be not too uncertain, and
therefore not invalid or unlawful on the ground of
uncertainty 32
PERCY V HALL [1997]
Facts: Two women in England were arrested for entering a defence
establishment in breach of bylaws made by the Defence Secretary.
The bylaws were stated to apply to “lands belonging to the
Secretary of State in the parishes of Menwith and Norwood and
Fewston in the county of North Yorkshire.” The women brought
proceedings for wrongful arrest and false imprisonment, on the
ground that the bylaws were void because they did not define the
boundaries of the defence establishment with sufficient certainty.
Held: The Court of Appeal discussed the various decisions of the
English courts relating to uncertainty, and followed the Fawcett
Properties test holding that “The by-laws could be given a sensible
meaning, so they were not void for uncertainty”

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Since it is not often that courts use uncertainty as a ground
for judicial review, it has not been called upon to consider
whether uncertainty is to be rationalized as a form of lack
of legal authority.
Mixnam’s Properties Ltd v Chertsey Urban District
COuncil [1964]
Willmer LJ considered uncertainty to be regarded as separate
from, and not a form of, lack of legal authority.
Thus actions and decisions of a governmental nature can be
declared void for uncertainty

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We have examined three separate grounds, error of law within jurisdiction,
fraud and uncertainty
Error of law within jurisdiction has an odd history because it was almost
forgotten for many years because of statutory reforms that had made it
difficult to obtain enough evidence of the grounds of decisions
In the 1950s the ground made a comeback and was expanded in its scope
But in more recent times it is being used less because it has become more
fashionable to see all errors of law as amounting to a lack of authority
(rather than calling it an error ‘within’ jurisdiction)
There are several significant exceptions to the availability of error of law
within jurisdiction as a ground
 Decisions of superior courts of law
 Decisions of official visitors
 Informal tribunals
 Decisions which are stated by written law to be not able to be reviewed

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Fraud (particularly where it is promulgated by the party
gaining the benefit of the decision) can be used as a
ground to set aside a decision where there is
wilful suppressions of the truth
reckless statements or suppressions that are untruthful
Uncertainty is another ground that is not used very
often
The test for uncertainty is that “The decision is so
uncertain that no intelligible or sensible meaning can be
given to it”

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