03 Sep 2015

The Fertility Control Clinic case: When are decision-makers allowed to make an error?

by Caroline Bush, Mathew Bock

Not every erroneous conclusion will lead a court to issue a remedy.

The Supreme Court of Victoria's recent decision in Fertility Control Clinic v Melbourne City Council [2015] VSC 424 is a reminder that Australian courts will continue to tolerate some kinds of errors in decision-making, and that not all errors by decision-makers will necessarily led to a court issuing mandamus to compel the performance of a duty according to law. However, the distinction between the two kinds of errors can be elusive.

Background: a complaint about protesters

The Fertility Control Clinic operates a medical clinic in Melbourne which provides a range of family planning and reproductive services including pregnancy termination. For more than 20 years, the Helpers of God's Precious Infants have gathered near the clinic to protest.

In December 2013, the Clinic wrote to Melbourne City Council alleging that the protestors had engaged in a nuisance. It provided witness statements to the effect that protesters had engaged in loud singing, praying and shouting clearly audible inside the clinic, harassed women entering or leaving the clinic and made attempts to block women from entering the clinic.

The Public Health And Wellbeing Act 2008 (Vic) relevantly provides that the Council has a duty to remedy, as far as is reasonably possible, all nuisances existing in its municipal district. If a person believes that a nuisance exists, that person may notify the Council of the alleged nuisance and the Council must investigate any notice of a nuisance. Where the Council finds that a nuisance exists, it must take certain kinds of specific action which may include the issue of a prohibition notice. The effect of issuing a prohibition notice is that it becomes an offence to carry on an activity specified in a notice.

In this case, the Council did not dispute that the protestors had engaged in the alleged conduct. However, the Council determined that most of the actions of the protestors (with the "arguable" exception of blocking entry into the clinic) did not fall within the specific definition of "nuisance" in the Act. It went on to indicate that the matter was better settled privately through a referral to Victoria Police.

The Clinic applied to the Supreme Court of Victoria for:

  • orders in the nature of mandamus to compel the Council to exercise the powers conferred upon it by the Act; and
  • a declaration that a referral to Victoria Police did not constitute "settling the matter privately" where that expression appeared in the Act.

The Clinic was only partly successful. Justice McDonald concluded, for the reasons discussed below that it was open to the Council to reach its own conclusion as to whether the particular conduct alleged constituted a nuisance and declined to issue a writ of mandamus. The Clinic was able to obtain declaratory relief on a different point, being that the Court was persuaded that the Council's advice to the Clinic to settle the matter privately by referring the protesters behaviour to Victoria Police was not "settling the matter privately" within the meaning of that expression in the Act.

Jurisdictional and non-jurisdictional error

It is well-established in Australia that a court may issue a writ of certiorari or mandamus where a jurisdictional error is found.  Similarly, where a decision-maker makes a non-jurisdictional error (or an error within jurisdiction) a writ of certiorari or mandamus will not be available. The unavailability of mandamus or certiorari does not necessarily preclude the grant of declaratory relief.

While it may not be possible to mark "the metes and bounds" of jurisdictional error (Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531), some examples of errors that Australian courts have accepted as constituting jurisdictional error are:

  • the absence of condition precedent to the valid exercise of power (eg. a  jurisdictional fact) except where a decision-maker is authorised by the legislation to come to their own opinion or satisfaction as to the existence or otherwise of that condition precedent;
  • misconstruction of a statute that results in a decision-maker misconceiving the nature of their function or extent of their powers;
  • failure to take into account a mandatory consideration;
  • taking into account of a matter required to be ignored;
  • failing to accord natural justice or procedural fairness;
  • drawing inferences and conclusion that are seriously irrational or illogical; and
  • exercising a statutory discretion in a manner that is manifestly unreasonable.

The wrong answer to the right question not jurisdictional error

In this case, the Court found that the decision-maker was authorised to form their own opinion as to the existence of the condition precedent, namely the existence of a nuisance. If a decision-maker made a mistake as to the existence of this condition precedent, that mistake would not usually constitute jurisdictional error, as the decision-maker was authorised to come to their own opinion or satisfaction as to the existence, or otherwise, of that condition precedent.

A determination of whether a decision-maker is so authorised will usually be informed by a reading of the relevant legislation including taking into consideration the overall statutory context.  In this case Justice McDonald concluded that the Act authorised the Council to come to its own conclusion as to whether certain conduct was a nuisance within the meaning of the Act and that any alleged error as to this conclusion was an error it was allowed to make and which was an error "within jurisdiction", in particular:

"... a decision-maker will not fall into jurisdictional error if they ask the question required by an Act, merely because the answer to the question may be erroneous."

Justice McDonald also rejected arguments that the Council had asked itself the wrong question by misconstruing the Act so as to limit its function to respond to private nuisances rather than public nuisances. Accordingly, he found that no jurisdictional error was established and that mandamus was not available.

Key takeaway for government decision-makers

The decision in the Fertility Control Clinic case is a timely reminder that not every erroneous conclusion will lead a court to issue a remedy, and that the courts can and will draw distinctions between jurisdictional errors and errors within jurisdiction. 


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.