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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 Part 3 of the Supreme Court Civil Rules 2006 (SA) rr 199 -201.

How is an application for judicial review commenced?

An application for judicial review can be commenced by filing documents in the Supreme Court (Form 1, Form 33, Form 39, and Form 40 which are available from the Courts SA website).

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 seeking the Court's permission (to serve the application); and

  • Affidavit stating the orders sought and setting out, in detail, the grounds for them.

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

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 (SA) rr 200A and 200B.

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 (SA) r 201].

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 Supreme Court Civil Rules 2006 (SA) r 200(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 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 [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 Supreme Court Civil Rules 2006 (SA) 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 (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 peform a public duty);

  • quo warranto (an order preventing a person from wrongfully exercising, or purporting to exercise, functions of a public character.

[See Supreme Court Civil Rules 2006 (SA) 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 (SA) [see r 200A(6)].

Application for judicial review - State  :  Last Revised: Thu Mar 1st 2018
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