Zaksaw Pty Ltd & Giacchi

In yesterday's post I reported on the NSW District Court case of Zaksaw Pty Limited v Department of Education, Giacchi v Department of Education. It concerned the scope of section 167, National Law, as constituting an absolute liability criminal offence. Having lost that appeal against their convictions, the appellants appealed to the NSW Court of Appeal in Zaksaw Pty Ltd v Gudu. As noted by the Court of Appeal, no further appeal lies from the District Court. However, Zaksaw and Ms Giacchi invoked the Court’s supervisory jurisdiction and filed, on 24 September 2024, a summons seeking orders in the nature of certiorari setting aside the judgment and orders of the District Court and remitting the proceedings to the District Court to determine their appeals against conviction according to law. They also sought costs. Before the Court there was only one ground of appeal: the District Court's decision involved jurisdictional error/error of law on the face of the record in that the judge erred in applying section 167, National Law, such that the failure of an approved provider or nominated supervisor to take every reasonable precaution can be proved merely by any act or omission of their staff members.

In the end, the case turned on whether any error in construing an offence provision amounts to a jurisdictional error in regard to which the Court of Appeal has jurisdiction. On this, the Court said (paras. 19-23):

I do not accept Zaksaw’s and Ms Giacchi’s submission that there is a case of jurisdictional error. There are undoubtedly cases where determining whether or not an error is jurisdictional is hard. But this is not one of them. As authority has repeatedly reiterated, the existence of jurisdictional error turns on whether the District Court has stepped outside the limits of what it was authorised to do. It is “no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision”: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [29].

The District Court did not exceed the limits of its authority. To the contrary, the District Court resolved the questions of construction which were elaborately advanced. In doing so, it was exercising the jurisdiction conferred upon it, including its undoubted jurisdiction to decide questions of law.  It is not to the point that the question of the construction of 167 was “core” or highly significant to the outcome of the case, or was the only issue that was in play. The District Court had authority to decide that question of construction, and to apply it to the facts. There could be no dispute that the District Court was itself determining whether the prosecutor had established whether each offence charged had been proven, to the criminal standard, in accordance with the function conferred on it by the Crimes (Appeal and Review) Act.

I do not think it is appropriate to express views on the construction of the provision in circumstances where s 176 restricts this Court’s jurisdiction to determining whether or not the District Court has exceeded the limits of its own authority, and it has, quite plainly, not done so.

The summons must be dismissed.  Further, the proceedings in this Court being civil in nature, the ordinary consequence of lack of success will be an adverse costs order.  That is the order sought by the first respondent.

I propose that the summons filed on 24 September 2024 be dismissed, with costs.