Judicial review in the National Court runs under Order 16 of the National Court Rules, starting with an application for leave and ending with a substantive hearing on the statement filed. The Supreme Court treats orders made in that process, and under Order 17 on habeas corpus, as a class of their own, with a separate procedure in Order 10.
Order 10 and Form 15
1.(1) An appeal under this Order shall be instituted by a notice of motion. (2) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply. 3. The notice of motion shall (a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 9; and (b) have annexed (i) copies of all documents which were before the Judge of the National Court appealed from; and (ii) a copy of the order made, certified by the Judge’s Associate or the Registrar; and (c) be in accordance with form 15; and (d) be signed by the appellant or his lawyer; and (e) be filed in the registry. 5. Where leave to appeal is required pursuant to s14 of the Supreme Court Act, application shall be made in Form 7.
Order 10 Rule 4 applies Order 7 Division 4 on filing and service, Rules 56 to 59 on affidavits, Rule 6 on the time to file after leave and Rule 11 on a notice deemed given on filing a leave application. Order 13 Rule 3 gives the file the prefix SCM. Objection to competency and want of prosecution apply through Order 11 Rule 28, and the Listings Rules in Order 13 apply to every proceeding. See what the file numbers mean.
Why the form matters
The Supreme Court has repeatedly upheld objections to competency where a judicial review judgment was appealed by a Form 8 notice of appeal under Order 7, or an ordinary judgment by a Form 15 motion under Order 10. The Rules prescribe the process, Order 7 Rule 15 makes competency a threshold question, and the 40 days will usually have expired before the mistake is found. Check the process below: if the order was made in an OS (JR) judicial review under Order 16, or on a habeas corpus application under Order 17, use Order 10. If it was any other judgment, including one on an ordinary originating summons, use Order 7. See what makes a ground of appeal incompetent.
When leave is needed
| National Court decision | Leave? | Why |
|---|---|---|
| Final judgment on the substantive review, on law or mixed fact and law | No | Section 14(1)(a), (b) |
| Any ground that is a question of fact alone | Yes | Section 14(1)(c) |
| Refusal of leave to apply for judicial review under O 16 r 3 | Yes | Treated as interlocutory: it does not finally decide the rights in issue; section 14(3)(b) |
| Grant of leave for judicial review | Yes | Interlocutory; and the Court is reluctant to intervene before the substantive hearing |
| Interim stay or injunction under O 16 r 3(8) | No | Section 14(3)(b)(ii) excepts injunctions from the leave requirement |
| Dismissal of the review for want of prosecution or as an abuse | Generally no | It finally disposes of the proceeding |
| Costs only | Yes | Section 14(3)(c) |
Where leave is needed, file Form 7 under Order 7 Rule 3 within the 40 days, and, to save time, a Form 15 motion conditional on leave. A single Judge decides leave under section 10(1)(a). See whether you need leave to appeal and how to tell if a judgment is final or interlocutory.
Framing the grounds
A judicial review judgment decides whether the decision-maker acted within power, fairly and reasonably; it does not decide the merits of the underlying decision. The grounds of the Supreme Court appeal must therefore attack the Judge’s reasoning on those questions: that the Judge applied the wrong test for error of law, misread the statute conferring the power, wrongly found or failed to find a breach of natural justice, or granted or refused relief on a wrong principle. Grounds that simply re-argue why the original decision was bad invite an objection. Judicial review relief is discretionary, so a refusal of relief is reviewed on the Curtain Bros principles. See how the Supreme Court reviews a Judge’s discretion and drafting grounds of appeal.
The appeal book and the record
The book contains the Order 16 statement, the leave affidavit and any affidavits relied on below, the decision under review and the record of the decision-maker, the transcript of the substantive hearing, and the judgment. Because judicial review is decided on affidavit, the transcript is often short and the book is dominated by the exhibits. The appellant certifies and files it under Order 7 Rules 43 to 47. See what goes into an appeal book.
The decision meanwhile
An appeal does not stay the National Court judgment, and where the judgment quashed a public decision the public body may need a stay to keep the position stable. Apply to a Judge under section 5(1)(b) and section 19 of the Act. See applying for a stay pending appeal.
Sources
- Supreme Court Rules 2012 — O 7 rr 3, 6, 9, 11, 15, 43–47, 56–59; O 10 rr 1–5; O 11 r 28; O 13 r 3; Forms 7, 15
- Supreme Court Act (Chapter 37) — ss 5, 10, 14, 17, 19
- National Court Rules 1983 — O 16, O 17
Before relying on anything here, read the current text of the Supreme Court Rules 2012 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.