When a Court’s Power Stops: Jurisdictional Error after Craig v South Australia
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Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)
Case Summary
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995) is one of the High Court’s clearest statements on the limits of judicial review when challenging decisions of an inferior court.
Mr Craig had been charged with serious indictable offences and sought a stay of proceedings until he could obtain counsel. Judge Russell accepted that, under Dietrich v The Queen, an accused who faces serious offences and cannot secure representation “through no fault of his own” may require the trial to be postponed to ensure fairness. His Honour stayed the proceedings.
The State then sought certiorari, asking the Supreme Court to quash the stay on the basis that the Judge had misapplied Dietrich.
The High Court overturned the Supreme Court’s intervention. Its central holding remains a doctrinal anchor in Australian administrative and criminal procedure:
“If Judge Russell fell into error… that error was within jurisdiction. It was not a jurisdictional error for the purposes of certiorari.” (at [26])
The Court stressed that:
A trial judge’s assessment of fairness, including whether lack of representation is due to the accused’s “fault”, is a matter within jurisdiction.
Only a true jurisdictional error, acting outside the limits of judicial power, permits certiorari.
Not every legal or factual error by a judge is a jurisdictional one. Courts are authorised to decide questions of law; mistaken reasoning does not transform an ordinary error into one that voids authority.
At the same time, the Court reaffirmed the principle in Dietrich:
where an unrepresented accused faces serious charges, the trial “should be adjourned, postponed or stayed until legal representation is available” unless exceptional circumstances exist. (see [21])
Why This Case Still Matters
The decision highlights a systemic risk for litigants:
When you rely on the courts alone to correct poor decision-making, the pathway is narrow and highly technical.
The difference between:
an ordinary error (which remains binding unless appealed), and
a jurisdictional error (which invalidates the decision)
is often subtle and intensely contested. Craig shows that even where a judge’s reasoning could be debated, it does not automatically justify superior-court intervention.
For clients, the power imbalance is real. Judicial review is not a safety net for every administrative or judicial mistake. Litigation strategy, timing, and procedural fairness issues can become critical long before an appeal is available.
This is where structural safeguards, not hindsight, protect clients best.
How to Avoid the Same Trap: Clear Role Separation
The risk exposed in Craig is not cost blowouts or billing opacity, but the limits of what reviewing courts can fix. Once a trial judge applies discretionary reasoning, correctly or not, superior courts may not intervene.
A safer approach is to ensure that:
Errors are identified early, before they harden into binding rulings;
Procedural fairness issues are raised with precision, not left to later challenge; and
Clients maintain a dedicated advocate for the litigation pathway and a separate lawyer overseeing fairness, strategy and timing.
This aligns directly with Clean Law’s Two-Lawyer Model, where the courtroom lawyer focuses solely on advocacy and evidence, while the client-side lawyer oversees:
the fairness of the process,
the clarity of what must be raised at each stage,
whether adjournments or stays are procedurally warranted, and
whether any emerging judicial error is actually capable of review.
This separation prevents the type of blind-spots seen in Craig, where the entire dispute turned on whether the judge had asked the “wrong question” or merely decided it wrongly.
Under Clean Law’s model, no one marks their own homework. Each function is insulated, removing hidden conflicts and ensuring that fairness arguments are preserved, documented, and escalated properly.
A short bridge into our explainer:
When cases turn on delicate distinctions, like whether an error is jurisdictional, the safest path is one where oversight and advocacy are structurally separated. Our detailed explainer illustrates how this works in practice.
Learn more → Two-Lawyer Model
Clients often assume that appeals or judicial review can correct what happens in court. Craig shows how constrained those remedies are, and why fairness must be protected in the moment, not after the fact.
Clean Law’s independence, no referral fees, no shared profits, Law Society-audited trust accounts, and ACNC-governed governance, ensures our oversight role remains impartial and client-centred in every matter.
If you’re navigating a dispute where timing, representation, or procedural fairness is at risk, a confidential conversation can help clarify the safest path forward.
Book a confidential discussion → Secure a Private Consultation
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
