Geftlic v Merhi & Ors

[2011] NSWCA 241

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial Review
3. › Certiorari
4. › Effect of prior unsuccessful appeal on availability of judicial review
5. › Whether issue estoppels created by dismissal of appeal preclude judicial review on same grounds
6. › Whether discretion to refuse relief where same grounds raised on appeal and judicial review
1. Administrative Law
2. › Judicial Review
3. › Certiorari
4. › Error of law on the face of the record
5. › Scope of the record
6. › Whether record includes evidence and submissions
7. › Supreme Court Act 1970 (NSW), s 69(4)
1. Estoppel
2. › Issue estoppel
3. › Decision of lower court on appeal
4. › Whether dismissal of appeal on limited grounds creates issue estoppels binding higher court
5. › Relationship between appeal rights and judicial review
1. Practice and Procedure
2. › Discretion to refuse prerogative relief
3. › Alternative remedies
4. › Whether relief should be refused where applicant has exercised alternative remedy of appeal on same grounds

Quick Take

Where a party has unsuccessfully appealed a Small Claims Division decision to the District Court on grounds of lack of jurisdiction or denial of procedural fairness, the District Court's decision creates binding issue estoppels that preclude the Supreme Court from entertaining judicial review on those same grounds. However, certiorari for error of law on the face of the record remains available as a cumulative remedy. The question whether Kirk's constitutionally entrenched supervisory jurisdiction affects this preclusion was left open.