Judicial review is a supervisory jurisdiction of last resort. Where the legislature has provided a way of correcting a decision, that way should ordinarily be used first.
Order 16 Rule 3(6)
Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal, and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
Note what Rule 3(6) of the National Court Rules 1983 does. It does not require leave to be refused where an appeal lies. It allows the Court to adjourn the leave application until the appeal is resolved or the appeal period has run.
That is a sensible middle course: the applicant’s position is preserved, and the appeal is allowed to run its course. It also means an applicant should file for leave in time rather than waiting for the appeal, because the Court can adjourn but cannot revive a stale application.
The principle behind it
Parliament’s choice. Where legislation provides an appeal or internal review, it has chosen who should correct errors and how. Judicial review should not displace that.
Appeals go further. An appeal usually decides the merits; judicial review decides only legality, and the remedy is a quashing and remitter under Order 16 Rule 9(4). An appellant may get the decision changed; an applicant for review usually gets it made again.
Discretion. Every remedy on judicial review is discretionary. The availability of another remedy is a powerful reason to refuse relief.
Do not leave the point to the respondent. The affidavit filed under Rule 3(2)(b) should say what other remedies existed, whether they were pursued and with what result, and — if they were not — why judicial review is nonetheless the right course.
Remember that where the State is a defendant, section 8 of the Claims By and Against the State Act 1996 requires that the State be afforded an opportunity to be heard before leave is granted. The State will raise the point if you do not.
What may need to be used first
| Alternative | Where it arises |
|---|---|
| Statutory appeal to a tribunal or court | Provided by the empowering legislation — expressly contemplated by r 3(6) |
| Internal review or reconsideration | Common in licensing, employment and public service decisions |
| Appeal to the National Court | From a lower court — Order 18 |
| Appeal to the Supreme Court | From the National Court — Supreme Court Act (Ch 37) s 14 |
| Mediation or negotiation | Under the ADR Rules 2022 once proceedings exist |
| Local Land Court | Customary land disputes — Land Disputes Settlement Act (Ch 45) |
| Election petition | Election disputes — a separate regime under the Election Petition Rules 2017 |
Where the rule gives way
- The alternative is not adequate. An appeal on the merits will not address a want of jurisdiction or a fundamental breach of natural justice.
- The alternative is not available in time. Where the appeal period has passed through no fault of the applicant, or the appellate body cannot sit in time.
- The defect goes to jurisdiction. A body that had no power to act at all is not corrected by an appeal within a structure that presupposes the power existed.
- Urgency. Where irreparable harm will occur before the alternative can be exhausted — and see Rule 3(8) on stays and interim relief.
- The alternative would be futile. Where the appellate body is bound by the same error, or has already indicated its position.
- A constitutional right is engaged. Constitution section 57(1) allows enforcement of a Basic Right on the application of any person who has an interest in its protection and enforcement, or on the Court’s own initiative. See human rights proceedings.
Each of these must be established on the material, not merely asserted. Where you say the alternative would be futile, say why. Where you say the defect is jurisdictional, identify the power and its limits.
Protecting your position
Where certiorari is sought, Rule 4(2) makes the relevant period four months after the date of the proceeding. An applicant who spends six months pursuing an internal review, then applies for leave, faces a delay objection under Rule 4(1).
The answer is in Rule 3(6) itself: file for leave within time, and let the Court adjourn the leave application until the appeal is determined or the appeal period expires. That preserves both positions.
Where the alternative remedy is being pursued in parallel, say so in the affidavit and invite the Court to adjourn rather than refuse.
If it turns out the claim was never suited to judicial review at all, Rule 9(5) allows the Court, where the relief sought is a declaration, an injunction or damages and it should not be granted on review but might have been granted in an action begun by writ, to order the proceedings to continue as if they had been begun by writ — instead of refusing the application.
That, and Order 1 Rule 8, mean a procedural misjudgment about the right remedy is rarely fatal — provided the application was made in time.
Sources
- National Court Rules 1983 — O 1 r 8; O 16 rr 3, 4, 9; O 18
- Constitution — ss 57, 155
- Claims By and Against the State Act 1996 — s 8
- Supreme Court Act (Chapter 37); Land Disputes Settlement Act (Chapter 45)
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.