Leave is the filter. Order 16 of the National Court Rules 1983 makes it a precondition: an application for judicial review shall not be made unless the leave of the Court has been obtained.
What the Court looks for
| Requirement | Source |
|---|---|
| Sufficient interest in the matter | Rule 3(5) — the Court shall not grant leave unless satisfied of it |
| An arguable case | Implicit in the leave requirement and the Rule 3(2)(a) statement of grounds |
| No undue delay | Rule 4(1) — the Court may refuse leave for undue delay, or where the four-month period for certiorari has expired |
| Judicial review is the appropriate remedy | Rule 3(6) — the Court may adjourn where an appeal lies; and the general discretion |
Rule 3(5)
The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
Rule 3(2)(a) requires the statement to set out the name and description of the applicant. That description is where the interest is demonstrated. See standing.
The second requirement
Leave exists to filter out challenges that cannot succeed before a public body is put to the expense of defending them. The applicant must therefore show grounds that are arguable — not that they will succeed.
The grounds must be stated in the statement under Rule 3(2)(a), and the facts relied on must be verified by affidavit, filed before the application is made, under Rule 3(2)(b).
This is the single most consequential feature of the two-stage structure. Under Rule 6(1), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.
So the statement is not merely a leave document. It defines the case that may be run at the substantive hearing. Plead each ground separately and specifically, and claim every form of relief you may need — including damages, which under Rule 7(1)(a) may be awarded only if claimed in that statement.
Amendment is available under Rules 3(4) and 6(2), on such terms as the Court thinks fit — but it should not be relied on.
Rule 4
Where the Court considers that there has been undue delay in making the application, or, in a case to which sub-rule (2) applies, the application for leave is made after the relevant period has expired, the Court may refuse to grant leave or the relief sought.
(2) Where the relief sought is certiorari to remove a judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period is four months after the date of the proceeding.
Do not wait for the point to be taken. Where any significant time has passed, explain it — internal appeals pursued, information obtained, advice sought.
Note that Rule 4(3) preserves any statutory provision limiting the time within which an application may be made, and those cannot be extended by the Rules. See the time limit.
Rule 3(6)
Where leave is sought for certiorari to remove for the purpose of quashing 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.
Rule 3(6) gives the Court an express power to wait. Behind it lies the general principle that a person who has a statutory right of appeal or internal review should ordinarily use it. See exhausting other remedies.
Address this in the affidavit: say what other remedies existed, whether they were pursued, and if not, why judicial review is nonetheless appropriate.
Two that must be satisfied
Order 16 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.
Section 8 of the Claims By and Against the State Act 1996 — notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard.
The two days’ notice is required by the Rules. The opportunity for the State to be heard is required by statute, and the Act prevails — a rule of court cannot dispense with it, and Order 1 Rule 7 reaches only the requirements of these Rules.
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)(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.
(8)(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.
Leave does not stay anything unless the Court so directs. Include the direction in the relief sought and in the draft order. See whether judicial review stays the decision.
And once leave is granted, move: under Rule 5(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.
Sources
- National Court Rules 1983 — O 1 r 7; O 16 rr 3–7
- Claims By and Against the State Act 1996 — s 8
- 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.