Litigating Questions of Quality

Abstract

There are some grounds of judicial review which inherently lead the court to consider questions of the quality of the decision-maker’s decision. The most prominent of these are review for Wednesbury unreasonableness and S20/2002 irrationality or illogicality. These grounds of review require careful application to avoid reviewing the merits of a case. The Australian Retailers case demonstrates another difficulty with quality review – that of what detail should be allowed in the evidence both supporting and rebutting the alleged error of law. This article provides a brief examination of the nature of quality review, followed by an examination of the approach used by Weinberg J in Australian Retailers. The article also suggests a method by which judicial review for issues of quality can serve its intended purpose – to catch rare and absurd decisions – without becoming unduly time-consuming or, worse, degenerating into merits review.

Keywords: Administrative Law, Judicial Review, Wednesbury, Unreasonableness, Quality