A refusal by a Supreme Court judge to direct an inquiry under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) is not appealable under s 101 of the Supreme Court Act 1970 (NSW) because it is not a judicial proceeding. However, such a refusal is susceptible to judicial review for jurisdictional error, because the immunity from review for non-jurisdictional error that attaches to a superior court judge acting in a judicial capacity does not extend to non-judicial determinations. The broader question of the scope of the Court of Appeal's supervisory jurisdiction over non-judicial decisions of Supreme Court judges was left open.
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