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Application for judicial review - State

The ability to seek judicial review using prerogative remedies was once exercised by issuing what was known as a prerogative writ. Nowadays the process is much more like those used for other types of actions. The process for applying for judicial review of South Australian Government decisions is set out Chapter 20 Part 6 of the Uniform Civil Rules 2020 (SA) rr 256.1 -256.7.

What orders can be made?

While the process for applying for judicial review has changed from the issuing prerogative writs to summonses, this has not changed the substance of the application.

A person applying for judicial review is entitled to an order in the nature of prerogative remedies, that is:

  • prohibition (an order preventing an authority from acting beyond its jurisdiction or in contravention of the requirements of procedural fairness);
  • certiorari (an order setting aside the decision of an authority because of absence or excess of jurisdiction, jurisdictional error or error of law on the face of the record, failure to observe the requirements of procedural fairness or fraud);
  • mandamus (an order compelling an authority to perform a public duty);
  • quo warranto (an order preventing a person from wrongfully exercising, or purporting to exercise, functions of a public character)

[See Uniform Civil Rules 2020 (SA) r 256.1]

An application may also include claims for other relief, such as a declaration under section 31 of the Supreme Court Act 1935 (SA) [see Uniform Civil Rules 2020 (SA) r 256.4(6)].

Who is defined as an authority?

For the purposes of a judicial review, an authority means a decision-maker, court, tribunal or other body or person exercising or purporting or having power to exercise administrative or judicial functions [r 256.1].

How much time is there to make an application?

An application for judicial review must be made as soon as practicable after the date when the grounds for review arose, and in any event, within 6 months of the date when the grounds for review arose [see Uniform Civil Rules 2020 (SA) r 256.3(1)]. If an application is commenced more than 6 months after the grounds for review arose, the action cannot proceed further without the Court’s permission [r 256.3(2)].

If the action was instituted more than 6 months after the decision, act or omission in question, the application must be accompanied by an interlocutory application and supporting affidavit seeking an extension of time to commence the action and leave of the Court to proceed with the action. In order for leave to be granted, the Court must be satisfied that there is a reasonable basis for the action for judicial review [r 256.5(3)(a)].

It is open to the Court to refuse an application for judicial review if there has been undue delay in bringing the application (even if it is brought within 6 calendar months) [see, for example Winen v District Court of SA [2003] SASC 440].

The Court has a general power to extend the time within which an application may be made where the justice of the case requires it [see Uniform Civil Rules 2020 (SA) r 21.1(1)].

How is an application for judicial review commenced?

An application for judicial review can be commenced by filing documents in the Supreme Court (Form 4A Originating Application, Form 4S or Form 11 Statement of Facts Issues and Contentions, and a supporting affidavit) which are available from the Courts SA website).

The statement of facts issues and contentions must set out, without argument or evidence:

  • the relevant facts;
  • the issues in neutral terms;
  • the contentions;
  • the grounds for an extension of time (if applicable); and
  • the orders sought

The supporting affidavit must:

  • exhibit the record of the decision, act or omission the subject of the action and any reasons given for it;
  • exhibit any request or other submission by the applicant to the authority on which the decision, act or omission was based (if applicable);
  • exhibit any other materials in the applicant’s possession that were before the authority for the purpose of the decision, act or omission the subject of the action insofar as they are relevant to the grounds of review;
  • exhibit, or if not documentary depose to, the evidence on which the applicant relies for judicial review;
  • identify any person or class of persons who has an interest in the matter beyond that of a member of the public; and
  • if an extension of time in which to institute the action is sought—depose to the facts on which the application for an extension of time is made

The applicant must join the entity or person (if any) who requested the decision, act or omission the subject of the action or who whose interests may be directly and adversely affected by the orders sought as a respondent.

The applicant must also join the authority as an interested party or, if the authority has a direct interest in supporting the decision, act or omission, as a respondent. [r 256.4(4)]

Can an application for judicial review be opposed?

A respondent or interested party who wishes to oppose a judicial review, must within 28 days after service of the Originating Application documents file a Form 57 Response to Statement of Facts Issues and Contentions to the statement of facts issues and contentions setting out, without argument or evidence:

  • the response to the relevant facts alleged by the applicant and any additional facts;
  • any additional, or refinement of, issues in neutral terms;
  • the contentions;
  • if applicable, the response to the grounds for an extension of time; and
  • the response to the orders sought.

A responding affidavit must also be filed, exhibiting to the extent not already exhibited to an affidavit filed in the proceeding:

  • any record of the decision, act or omission the subject of the action in the party’s possession;
  • any materials in the party’s possession that were before the authority for the purpose of the decision, act or omission in question insofar as they are relevant to the grounds of review; and
  • the evidence on which the party opposes judicial review, or if not documentary, deposing to such evidence

These forms can also be found on the Courts SA website.

Can a summary judgment be obtained instead?

An application for summary judgment can only proceed with the Court's permission, and the respondent will need to file an interlocutory application for summary judgment within 14 days after service of the Originating Application documents. [see Uniform Civil Rules 2020 (SA) r 256.5]

The action will be dismissed unless the Court is satisfied that there is a reasonable basis for the action for judicial review.

Will the decision be suspended?

Making an application does not automatically suspend the operation of the decision the subject of the application for judicial review, but the Court may stay proceedings the subject of the action, or suspend the operation of a decision or act the subject of the action at any time [see Uniform Civil Rules 2020 (SA) r 256.7(3)].

Who will hear the application?

If a full hearing of the proceeding is deemed necessary, the Court must decide whether the application will be heard by a single Judge or by the Full Court (which is normally comprised of three Judges). This can be a complex and time consuming process but is designed to avoid frivolous, incomplete or incorrect applications.

See Uniform Civil Rules 2020 (SA) rule 256.7.

Application for judicial review - State  :  Last Revised: Wed May 20th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.