An applicant who obtains leave often assumes the decision under challenge is suspended. Order 16 Rule 3(8) of the National Court Rules 1983 is more qualified than that.
Order 16 Rule 3(8)
(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.
Those four words are decisive. The grant of leave does not of itself stay anything. It operates as a stay only where the Court directs that it should.
So the direction must be asked for, and asked for at the leave hearing. An applicant who obtains leave without seeking the direction, and assumes the decision is suspended, may find the decision-maker has proceeded in the meantime — entirely lawfully.
Note also the scope: paragraph (a) applies only where the relief sought is prohibition or certiorari. It does not apply to mandamus or quo warranto.
The scope of the stay
What is stayed is the proceedings to which the application relates — the disciplinary hearing, the tribunal process, the enforcement of the decision under challenge — not the judicial review proceedings themselves.
The stay lasts until the determination of the application or until the Court otherwise orders. So it is not permanent, and it may be lifted on application.
Because a stay is discretionary and its scope depends on what is actually stayed, the direction should be sought in specific language: which proceedings, which decision, and what the decision-maker may and may not do in the meantime.
An imprecise stay creates the same problems as an imprecise injunction — and, like an injunction, a stay is ultimately enforceable as contempt.
Paragraph (b)
Where the relief sought is anything other than prohibition or certiorari, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.
“At any time” — not only at the leave stage. Interim relief may be sought as circumstances change during the proceeding.
“Such interim relief as could be granted in an action begun by writ” — which imports the whole armoury: an interlocutory injunction, orders for the preservation of property under Order 14 Rule 10, the appointment of a receiver.
The ordinary principles apply. An applicant seeking an interlocutory injunction on judicial review must satisfy the usual test — a serious question, adequacy of damages, balance of convenience — and will ordinarily be required to give an undertaking as to damages.
Rule 8(3)
Order 16 Rule 8(3) — that Rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the State.
Rule 8(3) preserves whatever statutory or common-law restrictions exist on making orders against the State. The Claims By and Against the State Act 1996 contains several — including that there is no execution against the State, and that the State must be afforded an opportunity to be heard before leave for judicial review is granted.
So an applicant seeking interim relief that would bind the State should expect that question to be raised, and should be ready to identify the source of the Court’s power. See judicial review against the State.
Rule 3(7)
If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.
A stay holds up a public decision, and third parties may suffer. The Court may therefore require security as a condition of granting leave — and where a stay or interim injunction is sought, security or an undertaking is commonly the price.
The machinery for security is in Order 14 Division 4, which governs the cases in which security may be ordered, the manner of giving it, and the consequences of failure to give it.
What to do
- Ask for the Rule 3(8)(a) direction expressly at the leave hearing, in the originating summons and the draft order.
- Specify what is to be stayed — the decision, the proceedings, or the steps in implementation.
- Where prohibition or certiorari is not the relief sought, apply under paragraph (b) for interim relief, addressing the ordinary injunction test.
- Be ready on security under Rule 3(7), and on an undertaking as to damages.
- Move quickly. Delay undermines any claim of urgency, and under Rule 4(1) undue delay may cost you leave or relief altogether.
Under Rule 8(1), unless the Court otherwise directs, any interlocutory application may be made to any Judge notwithstanding that the application for judicial review is to be heard by another Judge. So an urgent application for interim relief need not wait for the judge seised of the review to be available.
Sources
- National Court Rules 1983 — O 14 rr 10, Divs 3, 4; O 16 rr 3, 4, 8
- Claims By and Against the State Act 1996 — ss 8, 13
- Constitution — s 155
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.