“Error of law- is the only ground for preferring a rivisional application”-evaluate the statement.

1. 1.      ntroduction:

Law is made and implemented for the betterment of people and society. But any error in this case can result in a potential threat to human right. But as this matter is subject to many facts and figure, there is a high probability that there can be error of law. To avoid such injustice there is a provision for appeal against the error of the law. But this is not the only ground for rivisional application. So in case of using the law the user must be very much careful about the implication and the result of it. Error of law is one of the grounds for rivisional appeal. But it is not the only ground for Appeal.

1. 2.      What is “Error of law”:

In simple sense error of law is any mistake about the implication of law by the administrator. According to web dictionary error of law is “A ground of appeal which asserts that the trial judge did not apply the law correctly in reaching his or her decision.” [1]

1. 3.      Classification of “Error of law”:

Generally speaking, mistaken or erroneous application of law will void or reverse a judgment in the matter.  But there are two kinds of error of law. One is harmless error and another one is reversible error.[2]

3.1  Harmless Error:

 A Harmless Error means that, despite its occurrence, the ultimate outcome of the case is not affected or changed. In other words, the party claiming error has failed to convince an appellate court that the outcome of the litigation would have been different if the error had not occurred. Most harmless errors are errors of fact, such as errors in dates, times, or inconsequential details to a factual scenario.[3]

3.2  Reversible Error:

Reversible errors are those which actually changed the ultimate decision. A reversible error usually refers to the mistaken application of a law by a court.  Occasionally, a court may charge the jury with an instruction that applies the wrong law, or with an improper interpretation of the correct law. If the party claiming error can prove that the error was prejudicial to the outcome of the case or to the party’s rights, the error will most likely be deemed reversible.

1. 4.      Grounds of Rivisional application:

The decision of a judge or court should be appealed or reviewed based on some ground. Moreover the ground should be strong enough to support the appeal. In practice there are some limited types of ground that actually give a chance to review.  It is useful to rely on the ADJR Act’s (administrative decision judicial review act 1977) grounds for a summary. These grounds essentially describe the way in which a decision-maker has stepped outside the boundary of lawfulness.[4]

According to The ADJR Act one need to refer a specific ground for appeal within the following grounds:

4.1  No Jurisdiction:

It means whether an authority has the power to give a decision. The power of an authority or a decision-maker is usually confined to a strictly defined area by its governing statute, because it is Parliament through the statute which gives them that power.

The question of whether or not a ground of review constitutes a “jurisdictional error” can have particular significance if the Act under which the decision was made contains a “privative clause” which attempts to exclude judicial review. The High Court has held that privative clauses are not always effective to exclude judicial review for jurisdictional errors. Further, most errors of an administrative tribunal will be jurisdictional if they are of any substance.[5]

4.2  Error of Law:

It is the most common and widely used ground for rivisional application. It occurs when the decision-maker misapplies or misunderstands the law and that have a reverse impact on the decision.

Often this occurs because the decision-maker has failed to read or understand the statute. In addition, where policy exists, decision-makers can fail to realize its limitations, sometimes believing that the policy empowers them, rather than the law.[6]

4.3  Improper exercise of power:

In this ground the review will occur as the law has been used improperly. That is the power has been used in an improper way. If the party can show the improper use of power then there is a strong probability that s/he can get his right back.

4.4  Relevant or irrelevant consideration:

 If it can be shown that the decision making body has failed to take into account relevant factors or has taken into account factors not relevant to the matter, then it can be a strong ground for appeal.

“In order to decide what is relevant, the reasons given for the decision or action must be compared with the governing Act. In other words, the Act will determine what relevant and irrelevant factors are.”[7]

4.5  Improper purpose:

A decision which may be proper under law but the purpose of the decision may not be lawful. For example, an Act may permit a local council to close off a street for road repairs. On the face of it, the council may decide to do this, but it might be that the real object of the closure was to create a permanent traffic-free area in the city. However, it is usually difficult to prove that a decision-maker acted out of an improper purpose.

4.6  Unreasonableness :

Another ground for judicial review is that the decision was so unreasonable that nobody would have reached it.

This is often called “manifest unreasonableness”, or “Wednesbury unreasonableness” (after an old English case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). This is a difficult ground; it is not enough to convince the Judge that they would have made the decision differently, it must be shown that the decision was an absurd or irrational one.[8]

4.7  Bad faith:

It is the ground where one party has claim that the decision has been affected by corruption, bribery, dishonesty or similar malpractice. The great difficulty, here is to obtain evidence to prove.

4.8  Uncertainty:

It is a rare type of ground. It means that the decision were very much vague and uncertain and it do not show a clear guidance for people to follow.

4.9  improper delegation

The usual cases where improper delegation has been made out are those where a body responsible for a decision decided to let its judgment be formed by a body over which it had no control.

For example it may be improper delegation if the Secretary of a Department left a matter for which they were responsible to an independent agency to decide.

4.10Divesting and dictation:

“Divesting” is a situation where the decision making authority just give up the authority by himself regarding a matter. For example, for instance, for a Comptroller-General of Customs to declare that in future all determinations about prohibited imports would be made by a drug foundation would be an improper divesting of responsibilities.

“Dictation” is a matter where the decision making authority will allow itself to be dictated by another body or entity.

In both the cases it is a very good ground for rivisional appeal.

1. 5.      “Error of law”- as a ground:

 If anyone has any confusion about any decision then they should go for a review immediately. In order to do that first of all one think about a strong ground. Among all the ground the error of law is one of the common but not the only one.

Judicial review enables a person refusal to make a decision, or action, or inaction to seek review by a court of the lawfulness of that decision. The court will not review a decision in order to determine whether or not it was the right decision to make. The court will only review a decision so as to determine whether it was a lawful decision. If the court finds that the decision was not a lawful decision, it may set aside that decision. Normally, the court will then remit the decision back to the original decision-maker to be made again.

Some confusion can arise where a decision-maker has not explicitly directed itself as to the meaning of the legislation under which it is acting, or has not expressly identified the question it is asking. Where a decision-maker launches into the task of making a decision without first expressly addressing these matters, it is necessary to infer how it understood its task, and how it understood the legislation, from its decision and from the reasons it has given. Judges are sometimes concerned, in this context, that there is no express interpretation exercise or self-direction to which a correctness standard can be applied. And decision-makers sometimes argue that they should be given the benefit of the doubt on whether they correctly understood and directed themselves as to the legislation, where they have not pinned their colors to the mast on this point in their reasons.

The court must undertake a two-step analysis. First, it must ask what the meaning and purpose of the power is. On this it must reach its own view. Second, it must ask whether it appears from the decision that the decision-maker correctly understood the meaning of the legislation or the purpose for which the power was conferred, as identified by the court.[9]

If the issues are not precisely expressed then the court need to look at the responsible person and the result.  It may be clear from a statement of the issue which the decision-maker says it is deciding that it has misunderstood its task. Or its reasoning may betray a misunderstanding of the task it is required to perform. In some cases, the decision itself will be a decision that could not have been reached by a decision-maker that correctly understood the task it was undertaking: this is usually indicative of misdirection on the part of the decision-maker. It is rare for a decision-maker to ask it the right question as a matter of law, but then gives an absurd or hare-brained answer to that question.

It is thus legitimate to reason backwards from a failure to take relevant matters into account, or taking irrelevant matters into account, to misdirection on the part of the decision-maker. Similarly, it is legitimate to reason backwards from an extraordinary and impermissible decision to a failure to ask the right question/apply the right test.

This sort of reasoning backwards from a decision, or from the factors considered by a decision-maker, can raise difficult issues for a court. Although statutory interpretation is squarely within the court’s expertise, understanding why a decision on a technical matter (eg. telecommunications regulation) could not have been reached by a decision-maker that correctly understood its task may require a more detailed examination of the issues and reasons given, including expert evidence.

The court must be persuaded that there was a misunderstanding of the legislation, and the burden of showing this lies on the applicant for review. Where the applicant seeks to reason backwards from a decision or approach to show misdirection, the court will be slow to assume error if the approach is equally consistent with a correct approach to the task in hand. But this does not mean that the standard of review is not up to the mark.[10]

1. 6.      Grounds for review in Australian Law:

Under the section 5 of the act of judiciary review we can find the grounds for review. The grounds are more or less the same of the general grounds. The grounds are[11]:

• breach of natural justice
• error of law
• acting for an unauthorized purpose
• failure to consider a relevant matter
• acting under direction

Under s 6 of the Act essentially the same grounds are available in respect of conduct engaged in for the purpose of making a decision.

Under the section7 review is available if there has been a failure to make a decision, review is available either for failure to make a decision within a prescribed time or for unreasonable delay in making a decision where there is no prescribed time.

The grounds for review, whether it is for in the Administrative Decisions or in their non statutory

Guise, can usually divided in to two categories: grounds relating to procedure and grounds relating to the substantive exercise of power.

 In the first category falls denial of procedural fairness, which includes a requirement that the decision maker be, and appear to be, free from bias and/or that the person is entitled to a fair hearing. The first category is also directed at ensuring mandatory statutory procedures are observed.[12]

 The second category is designed to ensure that the decision maker work properly and correctly apply the law in making decision. This includes construing the law correctly, having regard to all mandatory considerations and disregarding all matters that are irrelevant considerations, exercising the power only for a statutory purpose and not in accordance with an inflexible policy. It also includes the ground described as ‘Wednesbury unreasonableness’, 26 which applies where a purported exercise of a discretionary power is so unreasonable that no reasonable repository of the power could have exercised it in that way.

 There is considerable overlap between the various grounds of judicial review. The ultimate purpose of each of the grounds is to ensure that a decision maker does not exceed the limited powers conferred by statute, the Constitution or common law.

1. 7.      The grounds for review in UK :

Grounds that are considered acceptable for review in UK are as follows:

 7.1  Illegality:

Several types of this ground are:

• Decision maker acting ultra vires
• Unlawfully delegating power or fettering discretion
• Taking into account irrelevant considerations

 7.2  Irrationality

 7.3  Procedural Impropriety: several scenario in this ground are:

• Failure to give each party to a dispute an opportunity to be heard
• Bias
• Failure to conduct a consultation properly
• Failure to give adequate reasons
• Legitimate expectation

1. 8.      Comparison of review system:

8.1  Comparison between USA and Canada: Weak and strong Judicial review

Strong judicial review can be found in USA whereas weak judicial review can be found in Canada. The difference between these legal systems comes out when a court overturns legislation on the basis of an interpretation of a constitutional clause where the interpretation is reasonable but still disputed by the legislature.

In the strong review system there can be only three ways to do it. They are[13]

(a)    The court can reverse itself

(b)   The court can change its interpretation through informal common law development

(c)    The legislature (or legislatures) can amend the constitution.

 In the weak review system:

(a)    allows these three responses

(b)    Plus a fourth one: the legislature can simply pass the law again “notwithstanding” the constitutional clause or the court’s interpretation of the constitutional clause.

8.2  Comparison between USA and Germany: Decentralized and Centralized

Judicial review in a centralized system reflects a different conception of the separation of powers and is based upon a doctrine radically different from that upon which decentralized review is founded.  The centralized system of judicial review, favored by civil law countries confines the power to determine the constitutionality of legislation to a single judicial organ. [14]

 The countries preferring this system of judicial review tend to adhere more rigidly to the doctrine of separation of powers and the supremacy of statutory law.  Because many people feel that any judicial interpretation or invalidation of statutes is essentially a political act, it is sometimes viewed as an encroachment on the exclusive power of the legislative branch to make law. The centralized systems thus refuse to grant this power to the judiciary generally. Rather, the ordinary judges must accept and apply the law as it is written.[15]

 On the other hand, the decentralized system of review, which had its origin in the United States, gives all the judicial organs within it the power to determine the constitutionality of legislation. 31 The rationale behind giving the entire judiciary the duty of constitutional control is, on its face, both logical and simple. It is precisely the function of the judiciary to interpret the laws and apply them in concrete cases. A constitutional norm prevails over an ordinary legislative norm with which it conflicts. Any judge in a decentralized system, deciding a case where an applicable legislative norm conflicts with the constitution, must disregard the former and apply the latter.[16]

1. 9.      Conclusion:

So it is being very clear that the “Error of law” is not only the one and only ground for rivisional application. Rather it is one of the grounds for review. But it is true that the error of law is the most common type of ground. Though throughout the world there are many types of ground but among all the ground this one is very common. The review system in the world is also different from one another. But all the system and the ground has been established to ensure the justice.

Appendix

1. Finck, D. E. (1997). Judicial Review: The United states Supreme Court and the German constitutional court. Volume 20, Issue 1. Article 5. Retrieved from http://www.google.com/url?sa=t&rct=j&q=grounds%20for%20judicial%20review%20in%20usa&source=web&cd=8&sqi=2&ved=0CGYQFjAH&url=http%3A%2F%2Flawdigitalcommons.bc.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1250%26context%3Diclr&ei=BoAOUJ2fIY3krAe15IFg&usg=AFQjCNFkNcrtYuTS08_8qsXHyNkajm8dnw&cad=rja

1. Web Dictionary.  www.bcfamilylawresource.com/12/1200body.htp

1. Legal Dictionary. Retrieved from http://legal-dictionary.thefreedictionary.com/error+types+I+and+II

1. Legal Dictionary. Retrieved from http://legal-dictionary.thefreedictionary.com/error+types+I+and+II

1. McKenzie, F.L. (July, 2010).Grounds for Review. Retrieved from http://www.lawhandbook.org.au/handbook/ch21s02s06.php#

1. Goddard, D. Review for error of law – some comments. Retrieved from  http://www.google.com/url?sa=t&rct=j&q=error%20of%20law%20judicial%20review&source=web&cd

1. 7.       Administrative review council,(2006). The Scope of judicial review: A report to attorney general. P.13. Retrieved from http://www.google.com/url?sa=t&rct=j&q=grounds of review judicial review Australia & source

1. 8.       Sinnot, W.(2002). Weak and strong judiciary review. P. 381. Retrieved From http://www.google.com/url?sa=t&rct=j&q=grounds for judicial review in usa & source=web & cd