Abstract:
Errors made with respect to jurisdictional matters, including errors made with
respect to so-called 'Jurisdictional facts", are reviewable for 'Jurisdictional
error". A jurisdictional fact is some fact or fact situation which must exist in
fact as a condition precedent or essential prerequisite for the primary
decision-maker to exercise its jurisdiction. Over the past 15 years New South
Wales superior courts have increasingly applied the so-called 'Jurisdictional
fact doctrine" in local government and environmental planning law cases.
This article discusses a number of important judicial authorities and seeks to
identify what the key elements or indicators of the presence of a jurisdictional
fact situation in a particular statutory formulation are. They include: the
interrelated elements of "objectivity" and "essentiality"; the purpose of the
formulation in the overall legislative scheme; the inconvenience, if any, that
may arise from the fact situation being held to be jurisdictional; whether the
fact situation occurs or arises as a matter for consideration or as a matter to
be ultimately adjudicated upon by the tribunal of fact; whether the fact
situation occurs or arises in the actual formulation of the grant of substantive
power to the tribunal of fact to make the ultimate decision on the merits; and
whether the fact situation occurs or arises in a formulation requiring the
formation by the tribunal of fact of a specified mental state. Ultimately, it is an
issue of statutory construction and legislative intention, with the reviewing
court having the final say, at least on those matters.
