The ability to seek judicial review using prerogative remedies (see 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 Part 3 of the Supreme Court Civil Rules 2006 rr 199 -201.
How is an application for judicial review commenced?
An application for judicial review can be commenced by filing the following documents in the Supreme Court:
- Front Sheet (Form 1)
- Summons (Form 2)
These forms can be found in Part II of the Supreme Court Practice Directions 2006.
Can the application proceed after filing these documents?
No. This is a significant difference from the old prerogative writ process. Applications for judicial review can only proceed further with the Court's permission. As a result the application must also be accompanied by an:
- Interlocutory Application (Form 16) seeking the Court's permission (to serve the application); and
- Affidavit (Form 14) stating the orders sought and setting out, in detail, the grounds for them.
These forms can also be found in Part II of the Supreme Court Practice Directions 2006.
The Court may give permission if 'satisfied that there is a reasonable basis' upon which an order for judicial review might be made. An application for permission may be heard in the absence of the defendant or the Court may adjourn the matter so that the defendant and/or other interested parties can be notified and heard. If the Court gives permission, the Court must also decide at that point 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 Supreme Court Civil Rules 2006 rr 200(3), (4) and (5) respectively.
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 suspend it or order a stay of any related proceedings [see Supreme Court Civil Rules 2006 r 200(6)].
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 calendar months of the date when the grounds for review arose [see Supreme Court Civil Rules 2006 r 200(2)].
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  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 Supreme Court Civil Rules 2006 r 117(2)(b)].
What orders can be made?
While the process for applying for judicial review has changed from the issuing preroragitve 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, certiorari, mandamus and quo warranto [see Supreme Court Civil Rules 2006 r 199(2)]. An application may also include claims for other relief, such as a declaration under section 31 of the Supreme Court Act 1935 [see r 200(7)].
See Prerogative remedies.
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