Not everyone may challenge a public decision. Order 16 Rule 3(5) of the National Court Rules 1983 sets the threshold.
Order 16 Rule 3(5)
The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
It is mandatory. The word is “shall not”. Standing is a precondition to leave, not a discretionary factor.
It is assessed at the leave stage — which is why Rule 3(2)(a) requires the statement to set out the name and description of the applicant. The description is where the interest is shown.
It is relative to the matter. The interest must be in the matter to which the application relates — so the question is always: what is this decision, and what is this applicant’s connection to it?
Categories of applicant
| Applicant | Position |
|---|---|
| The person directly affected by the decision — dismissed, refused, penalised | Clear standing |
| An unsuccessful applicant for a licence, appointment or tender | Ordinarily sufficient |
| A person whose property or livelihood is affected | Ordinarily sufficient |
| A landowner affected by an approval over land | Ordinarily sufficient — but customary land disputes go to the Local Land Court |
| A competitor affected by a decision favouring another | Depends on the statutory scheme |
| An association acting for affected members | Depends on its constitution and its members’ interests |
| A citizen with no particular connection | Difficult — unless a constitutional right is engaged |
Standing is commonly lost by inattention rather than by absence of interest. An applicant who describes themselves only by name and address has not shown the Court why they have a sufficient interest.
Say what the decision was, and how it affects this applicant — the position held, the application refused, the land occupied, the contract lost. Verify those facts in the affidavit filed before the application is made under Rule 3(2)(b).
A wider gateway
A right or freedom referred to in Division III.3 (Basic Rights) shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose — either on its own initiative or on application by any person who has an interest in its protection and enforcement.
Two differences. First, the Court may act on its own initiative — something Order 16 does not permit. Second, the applicant needs an interest in the protection and enforcement of the right, which is not the same as being the person whose right was infringed.
So where the complaint is properly framed as an infringement of a Basic Right, section 57 may provide standing that Order 16 Rule 3(5) would not. See human rights proceedings and the Human Rights Track under Order 23.
Section 58 then provides for compensation for infringement — but note that section 2(2) of the Claims By and Against the State Act 1996 applies that Act to applications under sections 57 and 58, so the section 5 notice is engaged where the State is the defendant.
Where the real question is the interpretation or application of a Constitutional Law, Constitution section 18(1) gives the Supreme Court original jurisdiction to the exclusion of other courts, and section 18(2) requires other courts to refer such a question unless it is trivial, vexatious or irrelevant.
So standing to bring judicial review does not carry with it standing to have the National Court decide what a Constitutional Law means. See challenging jurisdiction.
Rule 9(1)
On the hearing of any Notice of Motion under Rule 5, any person who desires to be heard in opposition to the Notice of Motion, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served.
An applicant must show sufficient interest to obtain leave. A person opposing need only appear to the Court to be a proper person to be heard — and if they are, the Court shall hear them, even without service.
That reflects the reality that public decisions have beneficiaries: the successful tenderer, the appointee, the licence holder. An applicant should identify such persons and serve them under Rule 5(2), which requires service on all persons directly affected — and must disclose in the Rule 5(5) affidavit anyone who ought to have been served but was not, and the reason for it.
Establishing standing
- Identify the decision precisely — who made it, under what power, on what date.
- State the applicant’s connection to it in the description in the statement, not merely in the affidavit.
- Verify the connecting facts in the affidavit filed before the application, exhibiting the documents that show it.
- Consider whether a Basic Right is engaged. If it is, plead section 57 as well — the interest required is different, and may be easier to establish.
Standing is a checklist item the Court considers in ordinary civil matters at the listings mention — the Court’s jurisdiction and locus standi and the capacity of the parties to sue and be sued. Judicial review is outside the Listings Rules, so the point arises instead at the leave hearing, where the State must be afforded an opportunity to be heard under section 8 of the Claims Act. Expect standing to be the first thing raised.
Sources
- National Court Rules 1983 — O 10 r 9A; O 16 rr 3, 5, 9; O 23
- Constitution — ss 18, 57, 58, 155
- Claims By and Against the State Act 1996 — ss 2, 5, 8
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.