Under Order 16 Rule 3(1) of the National Court Rules 1983, an application for judicial review shall not be made unless the leave of the Court has been obtained. Rule 3 sets out how leave is sought.
Order 16 Rule 3(2)
An application for leave must be made by originating summons ex parte to the Court — except in vacation, when it may be made to a Judge in chambers — and must be supported —
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
Originating summons, ex parte. Not a notice of motion, and not on notice. This is one of the recognised categories of ex parte originating summons.
The statement is a distinct document from the affidavit and from the summons. It must contain three things: the name and description of the applicant, the relief sought, and the grounds on which it is sought.
The affidavit must be filed before the application is made, and must verify the facts relied on. Filing it at the hearing does not comply.
Rule 3(3)
The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made, and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.
Although the application is ex parte as against the decision-maker, the Secretary for Justice must be notified — with copies of the statement and every affidavit — not later than two days before.
The purpose is that the State has notice that its administration is being challenged. Failure to comply is a competency point that respondents take, and it is entirely avoidable: diarise the two days and keep proof of lodgement.
Note the parallel in Rule 9(2): where certiorari is sought to quash proceedings, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing he has lodged with the Secretary for Justice a copy verified by affidavit, or accounts for his failure to do so to the satisfaction of the court.
What the statement should contain
- Name and description of the applicant — and, since Rule 3(5) requires a sufficient interest in the matter, the description should show what that interest is. See standing.
- The relief sought — identified precisely. Certiorari to quash which decision, of which body, made on what date; mandamus to compel what duty; and any declaration or injunction under Rule 1(2). Under Rule 2, relief may be claimed as an alternative or in addition where it arises out of the same matter.
- The grounds — the legal errors relied on, stated as grounds rather than as narrative. See the grounds of judicial review.
Include a claim for damages here if you want one. Rule 7(1)(a) permits damages only if the applicant has included in the statement in support of the application for leave a claim for damages arising from any matter to which the application relates — and under Rule 7(2), Order 8 Division 2 on particulars applies to such a statement as it applies to a pleading.
This is a trap. An applicant who obtains leave without claiming damages, then discovers a loss, cannot simply add the claim later at the substantive hearing. Rule 7(1)(a) ties the entitlement to the statement filed in support of the leave application.
And under Rule 7(1)(b), the Court must be satisfied that if the claim had been made in an action begun at the time of making the application, damages could have been awarded — so judicial review does not create a new cause of action in damages.
Rules 3(4) and 6(2)
Rule 3(4) — without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms as it thinks fit.
Rule 6(2) — the same power applies at the substantive hearing, and the Court may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party.
Rule 6(3) — an applicant intending to amend or to use further affidavits shall give notice of his intention and of any proposed amendment to every other party.
Rule 6(4) — each party must supply to every other party on demand and on payment of the proper charges copies of every affidavit he proposes to use, including the applicant’s leave affidavit.
Rule 3(7) and (8)
(7) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.
(8) Where leave is granted —
(a) if the relief sought is prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until determination or until the Court otherwise orders; and
(b) if any other relief is sought, the Court may at any time grant such interim relief as could be granted in an action begun by writ.
Note the words “and the Court so directs” in paragraph (a). The grant of leave operates as a stay only where the Court directs it. Ask expressly. See whether judicial review stays the decision.
Paragraph (b) is wide: for relief other than prohibition or certiorari, the Court may grant at any time any interim relief available in an ordinary action — including an injunction.
Where leave is sought for certiorari to quash a judgment, order, conviction or other proceedings which is subject to appeal, and a time is limited for appealing, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
Judicial review is not a substitute for an available appeal. See exhausting other remedies.
Sources
- National Court Rules 1983 — O 8 Div 2, Div 4; O 16 rr 1–9
- 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.