Judicial review is how the National Court supervises the exercise of public power — by Ministers, departments, statutory bodies, tribunals and lower courts. Order 16 of the National Court Rules 1983 provides the procedure.
Where the power comes from
155(3)(a) — the National Court has an inherent power to review any exercise of judicial authority.
155(4) — the National Court has an inherent power to make, in such circumstances as seem to it proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
166(1) — subject to this Constitution, the National Court is a court of unlimited jurisdiction.
Order 16 does not create the power to review. Constitution section 155(4) already gives the Court power to make orders in the nature of prerogative writs. Order 16 prescribes how that jurisdiction is invoked.
That distinction matters: a defect in following Order 16 is a procedural problem, and Order 1 Rule 8 provides that non-compliance does not render a proceeding void.
Order 16 Rule 1
(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.
(2) An application for a declaration or an injunction may be made by way of judicial review, and the Court may grant it if it considers that, having regard to —
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;
(b) the nature of the persons and bodies against whom relief may be granted by such an order; and
(c) all the circumstances of the case,
it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
| Order | What it does |
|---|---|
| Certiorari | Quashes a decision already made — removing it for the purpose of its being quashed |
| Prohibition | Prevents a body from acting, or continuing to act, beyond its power |
| Mandamus | Compels the performance of a public duty |
| Quo warranto | Questions by what authority a person holds an office |
| Declaration | States the legal position — available on review where just and convenient |
| Injunction | Restrains or compels — likewise available where just and convenient |
The word is “shall”. A party seeking any of the four prerogative orders must proceed under Order 16. Bringing such a claim by ordinary writ or originating summons is procedurally wrong, and exposes the proceeding to a challenge to competency.
Rule 1(2) is different in character: a declaration or injunction may be sought by review, but need not be. Where the claim is essentially private, the ordinary procedure remains available. See declaratory judgments.
Rule 2
On an application for judicial review any relief under Rule 1 may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.
An applicant will commonly seek certiorari to quash a decision and mandamus to compel the decision-maker to determine the matter properly — often with a declaration as well.
Rule 2 permits all of that in one application, provided the relief arises out of or is connected with the same matter. On the grounds and the orders available, see those articles.
Rule 3(1) — the gateway
An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.
Judicial review proceeds in two stages: an application for leave, and then, if leave is granted, the substantive application.
The leave requirement filters out unarguable challenges before a public body is put to the expense of defending them. It is not a formality — Rule 3(5) provides that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter, and Rule 4 allows leave to be refused for undue delay.
See applying for leave, what you must show, standing and the time limit.
How Order 16 differs
| Feature | Judicial review | Ordinary proceedings |
|---|---|---|
| Leave | Required — r 3(1) | Not required |
| How commenced | Originating summons ex parte for leave — r 3(2) | Writ or originating summons |
| Notice before filing | To the Secretary for Justice, not later than two days before — r 3(3) | None |
| Standing | Sufficient interest required — r 3(5) | Ordinary rules |
| Delay | Leave may be refused for undue delay — r 4 | Limitation periods |
| Case management | Outside the Listings Rules 2005, which exclude judicial review | Mentions, directions, pre-trial conference |
| Motions | Excluded from the ordinary Motions List by the Motions (Amendment) Rules 2005 | Motions List |
Rule 8(1) — unless the Court otherwise directs, any interlocutory application in judicial review proceedings may be made to any Judge notwithstanding that the application for judicial review has been made and is to be heard by another Judge.
Rule 8(2) — “interlocutory application” includes an application for an order under Order 9 Divisions 1 and 2, or Order 11 Division 3, or for an order dismissing the proceedings by consent.
Rule 8(3) — this is without prejudice to any statutory provision or rule of law restricting the making of an order against the State. See judicial review against the State.
Sources
- National Court Rules 1983 — O 1 r 8; O 8 Div 4; O 9 Divs 1–2; O 10 r 9A; O 11 Div 3; O 16 rr 1–8
- Constitution — ss 155(3), 155(4), 166
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.