Judicial review is concerned with the lawfulness of a decision, not its merits. The remedies in Order 16 of the National Court Rules 1983 reflect that.
Rule 9(3) and (4)
(3) Where an order of certiorari is made in a case referred to in sub-rule (2), the order shall, subject to sub-rule (4), direct that the proceedings shall be quashed immediately on their removal to the Court.
(4) Where the relief sought is certiorari and the Court is satisfied that there are grounds for quashing the decision, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
This is the central point about judicial review. Where a decision is quashed, the Court remits the matter to the decision-maker with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
It does not decide the matter itself. A successful applicant gets a fresh, lawful decision — which may be the same decision, lawfully made. That disappoints applicants who expect the Court to grant the licence, make the appointment, or award the contract.
The words “in accordance with the findings of the Court” are the safeguard: the decision-maker must reconsider consistently with what the Court has held, not simply repeat the error.
Where the relief sought is or includes certiorari to remove any proceedings for the purpose of quashing them, 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.
This sits alongside the two days’ notice to the Secretary for Justice required at the leave stage under Rule 3(3).
What may be ordered
| Order | Effect | Provision |
|---|---|---|
| Certiorari | Quashes the decision, immediately on its removal to the Court | rr 1(1), 9(3) |
| Remitter | Sends the matter back with a direction to reconsider and reach a decision in accordance with the findings of the Court | r 9(4) |
| Prohibition | Prevents a body from acting beyond power | r 1(1) |
| Mandamus | Compels performance of a public duty | r 1(1) |
| Quo warranto | Questions by what authority an office is held | r 1(1) |
| Declaration or injunction | Where just and convenient having regard to the r 1(2) matters | r 1(2) |
| Damages | Only where claimed in the statement at the leave stage | r 7 |
| Stay | Grant of leave operates as a stay where the Court so directs | r 3(8)(a) |
| Interim relief | As could be granted in an action begun by writ | r 3(8)(b) |
Under Rule 2, 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.
The common combination is certiorari to quash, mandamus to compel a fresh decision, and a declaration stating the legal position. Claim them all in the statement, because Rule 6(1) confines the hearing to the grounds and relief set out in the statement.
Rule 7
(1) On an application for judicial review the Court may award damages if —
(a) the applicant has included in the statement in support of his application for leave a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
(2) Order 8 Division 2 shall apply to a statement relating to a claim for damages as it applies to a pleading.
Paragraph (a) ties the claim to the leave-stage statement. Damages not claimed there cannot be awarded.
Paragraph (b) means judicial review creates no new cause of action in damages. The applicant must have had a claim that would have succeeded in an ordinary action — in tort, contract, or for breach of a constitutional right under Constitution section 58.
Sub-rule (2) applies Order 8 Division 2 — so the statement must give the necessary particulars of the damages claim, just as a pleading would.
Where the State is the respondent, the Claims By and Against the State Act 1996 applies to the damages claim — including the section 5 notice. See judicial review against the State.
Rule 9(5)
Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ at the time of the application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.
An applicant who has chosen the wrong procedure is not simply turned away. Where the claim is really a private-law claim — for a declaration, an injunction or damages — the Court may convert the proceeding rather than dismiss it.
That mirrors Order 4 Rule 35, under which proceedings begun by originating summons may be ordered to continue on pleadings. Both reflect the general position in Order 1 Rule 8: a procedural misstep does not render a proceeding void.
Note the limits: Rule 9(5) applies only to a declaration, an injunction or damages. It does not save a misconceived claim for certiorari, prohibition, mandamus or quo warranto — those must go by judicial review, as Rule 1(1) requires.
Every remedy on judicial review is discretionary. Even where a ground is made out, the Court may refuse relief — for undue delay under Rule 4(1)(b), because an alternative remedy was available, because the applicant’s own conduct disentitles them, or because quashing the decision would achieve nothing.
So an applicant should be ready to address not only whether the decision was unlawful, but why the Court should intervene.
Sources
- National Court Rules 1983 — O 1 r 8; O 4 r 35; O 8 Div 2; O 16 rr 1–9
- Constitution — ss 57, 58, 155
- Claims By and Against the State Act 1996
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.