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Judicial Review tests decisions by officials

Monday, May 14, 2012
Law Made Simple

History has shown that public officials can get it wrong when making decisions which impact on the lives of citizens. Those affected can challenge these decisions to protect their rights. An effective way a decision or act of a public official or body can be challenged is by an application for judicial review. The decision or act is subject to the independent scrutiny of the courts, and where found to be unlawful, irrational or improper, the court can quash that decision.


This article focuses on the remedy of judicial review and some limitations to it. Applications for judicial review are heard by the High Court in a two-stage process. The person challenging the decision or act must first apply for permission to bring the action, and once granted, it is at the second stage that the court actually hears the substance of the challenge.


At the permission stage, the court must be satisfied that:
• the application was filed promptly;
• the applicant has standing to bring the action;
• the decision itself can be challenged; and,
• there is no other alternative means by which the decision could have been challenged.


These requirements have been codified in the Judicial Review Act. The Act requires that all applications be made promptly and usually within three months of the decision. The court will refuse permission where any other law provides an alternative procedure to review or appeal the decision. In other words, the application for judicial review is a last resort.


To have standing, the applicant must be adversely affected by the decision or act, or the court must be satisfied that the application is in the public interest. The Act requires that the applicant have “sufficient interest” in the matter to which the application relates, and provides for the court to deny permission to busybodies.


Judicial review applies to decisions made by a public body.  Therefore, a decision of a private company or a private citizen cannot be challenged by judicial review. Also, a law preventing the court from enquiring into the decision, commonly known as an ouster clause, can lead the court to deny permission.


If permission is granted, the court will generally be concerned to ensure that the decision was made in keeping with the law and that the decision-making process was procedurally proper. The court will, in exception circumstances, interfere with a decision where the decision is so unreasonable that no rational decision-maker could have made it in the circumstances.


An application for judicial review can also be filed against a public official or body for failing to make a decision or to do something which it ought to have done. Here, the argument can be made that the official acted illegally, improperly or irrationally by failing to make the decision or do the act.


The court can ensure a successful applicant obtains adequate redress, including granting an injunction to prevent the challenged decision from coming into effect, and ordering the payment of monetary compensation where the person has suffered loss.


The court will not, however, impose its own decision in the matter, but will quash the decision and may remit the matter for a new decision to be made by the appropriate authority. (This column is not legal advice.  If you have a legal problem, you should consult a legal adviser.)


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