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:

[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 supporting affidavit must:

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:

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

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 in the general division or by the Court of Appeal division of the Supreme Court (which is normally comprised of no less than 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.