A respondent served with an application to review has been brought into a proceeding that, unlike an appeal, exists only because the Supreme Court has chosen to exercise a constitutional discretion. The first job is to be on the record; the second is to test whether the review should be there at all.
You have been served
The review shall be served as soon as possible on all parties to the National Court proceedings from which the judicial act to be reviewed arises.
In an election petition review, Rule 25 requires service within 7 days of filing on the respondents named, who by Rule 7 are the Electoral Commission and the party in whose favour the decision was made, and the leave application before it must have been served personally at least 3 days before the leave hearing under Rule 15. A respondent who was not served with the leave application has an immediate point.
Step 1: appear
| Type of review | Form | Time | Rule |
|---|---|---|---|
| Election petition review | Form 5C, Notice of Appearance in Review | Within 7 days of service of the application | O 5 r 26 |
| Any other section 155(2)(b) review | Form 16, Appearance | As soon as practicable, or within the time in the document or any order | O 11 r 2 |
Both forms carry the Form 17 address for service required by Order 11 Rules 3 and 4: a place within 15 kilometres of the Registry where documents can be left, a postal address, and the lawyer’s office where represented. Everything that follows is served at that address. A respondent who does not appear is not entitled to be heard and will not receive the review book, submissions or the notice of hearing. See the notice of appearance. The forms are on the Supreme Court Forms page.
Step 2: consider an objection to competency
The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’: (a) Order 7 Division 5 (Objection to competency); (b) Order 7 Division 19 (Time, and want of prosecution).
So an objection to the competency of a review is filed in Form 9 within 14 days of service, with affidavits if needed, and is determined at or before the hearing. Rule 18 places the burden of establishing competency on the applicant, and Rule 19 denies a respondent who did not file an objection any costs if the review is nonetheless dismissed as incompetent. The characteristic grounds are that an appeal lay and was not taken, so that section 155(2)(b) is not engaged; that leave was required and not obtained; that the application does not identify the judicial act with particularity; or, in an election petition review, that the leave application was out of time or the deposit was not paid. Order 5 Rule 28(f) lists objections to competency among the matters for the directions hearing, and Rule 36 allows the objection to be heard with the review. See objections to competency and the difference between an appeal and a review.
Step 3: the directions hearing and the book
An election petition review has a directions hearing within 14 days of filing under Rules 27 and 28 and a pre-hearing conference within 21 days under Rules 33 and 34. A respondent should come with its position on the grounds, the issues, the index and the hearing estimate, and should certify the review book under Rule 32 once satisfied it is correct. Other reviews go through the Order 13 call over and directions hearing once an application book is filed under Rule 7(3). See the review book and what happens after leave.
Step 4: submissions
Written submissions and the extract of argument are directed under Order 11 Divisions 9 and 10 at the directions hearing or status conference. A respondent’s submissions in a review address two questions in order: whether the Court should exercise its discretion to review at all, which depends on the applicant showing why no appeal was available and that the case is exceptional, and whether the National Court erred. See what an applicant must show to get leave for review.
If the applicant does nothing
Order 7 Division 19 applies to reviews through Order 11 Rule 28, so a respondent may apply in Form 11 to have a stalled review dismissed. In an election petition review Order 5 Rule 37 is more direct: the Court or a Judge may on its own motion or on application dismiss the application for leave or for review where the applicant has not done an act required, has not prosecuted it with due diligence, or has failed to comply with a direction. See the Order 7 Rule 50 application.
The decision stands meanwhile
Order 5 Rule 38 provides that filing a review does not stay the decision under review, and section 155(2)(b) reviews of civil judgments are treated the same way as appeals under section 19 of the Act. A respondent holding a judgment may enforce it unless the applicant obtains a stay from a Judge, and should oppose any stay application on the affidavit evidence. See what the Court considers on a stay application.
Sources
- Supreme Court Rules 2012 — O 5 rr 5, 7, 15, 25–28, 32–38; O 7 rr 15–19, 48–50; O 11 rr 2–4, 12–18, 28; O 13 r 7; Forms 5C, 9, 11, 16, 17
- Constitution — s 155(2)(b)
- Supreme Court Act (Chapter 37) — s 19
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.