Leave is only the first stage. Order 16 Rule 5 of the National Court Rules 1983 governs the substantive application.
Rule 5(1) to (4)
(1) When leave has been granted, the application shall be made by Notice of Motion to the Court.
(2) The Notice of Motion must be served on all persons directly affected. Where it relates to proceedings in or before a court and the object is to compel the court or an officer to do any act in relation to the proceedings, or to quash them or any order made in them, it must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.
(4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.
Leave is sought by originating summons ex parte. The substantive application is made by Notice of Motion on notice. That is an unusual sequence, and it catches practitioners out.
Note sub-rule (2)’s second limb. Where the challenge is to proceedings in a lower court, the Notice of Motion must also go to the clerk or Registrar of that court — and, if the conduct of the Judge is challenged, to the Judge. That is a matter of basic fairness to the person whose conduct is impugned.
Rules 5(5) and 5(6)
An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the Notice of Motion must be filed before the Notice of Motion is entered for hearing.
If any person who ought to be served has not been served, the affidavit must state that fact and the reason for it; and the affidavit shall be before the Court on the hearing.
If, on the hearing, the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms as it may direct in order that the Notice of Motion may be served on that person.
Rule 6(1)
Copies of the statement in support of an application for leave under Rule 3 must be served with the Notice of Motion and, subject to sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.
This is the single most important practical consequence of the two-stage structure. What you can argue at the substantive hearing is limited to the grounds set out in the statement filed at the leave stage, and what you can obtain is limited to the relief set out there.
So the statement must be drafted with the substantive hearing in mind, not merely to get past leave. Plead every ground you may wish to run, and claim every form of relief you may need — Rule 2 permits relief to be claimed as an alternative or in addition where it arises out of the same matter.
The same applies to damages: under Rule 7(1)(a), damages may be awarded only if a claim for damages arising from any matter to which the application relates was included in the statement in support of the application for leave.
Rule 6(2) to (4)
(2) The Court may on the hearing allow the applicant to amend the statement, whether by specifying different or additional grounds for relief or otherwise, on such terms as it thinks fit, and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party.
(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.
(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 at the hearing — including, for the applicant, the affidavit in support of the application for leave.
Note the constraint in sub-rule (2): further affidavits are allowed only where they deal with new matters arising out of an affidavit of any other party. This is not an open licence to file more evidence; it is a right of reply to what the respondent has put in.
Amendment is also available under Order 8 Division 4, which Rule 3(4) expressly preserves.
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 with the Notice of Motion.
In ordinary proceedings only parties are heard. On judicial review, anyone who appears to the Court to be a proper person to be heard in opposition shall be heard — and the word is “shall”, not “may”.
The reason is that judicial review concerns the exercise of public power, and decisions often affect people who were never made parties — the successful tenderer, the appointee, the licence holder, the community affected by an approval.
An applicant should therefore expect opposition from beyond the named respondent, and should identify affected persons and serve them under Rule 5(2) rather than leaving them to appear unannounced.
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 — and “interlocutory application” includes an application under Order 9 Divisions 1 and 2 (discovery and interrogatories), Order 11 Division 3 (affidavits), or for an order dismissing the proceedings by consent.
On what the Court may order at the end of the hearing, see the orders available.
Sources
- National Court Rules 1983 — O 8 Div 4; O 9 Divs 1–2; O 11 Div 3; O 16 rr 2–9
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.