Part 56 – Administrative Law

Scope of this Part

 56.1

1. This Part deals with applications —
   1. by way of originating motion or otherwise for relief under the Constitution of any Member State or Territory;
   2. for a declaration in which a party is the State, a court, a tribunal or any other public body;
   3. for judicial review; and
   4. where the court has power by virtue of any enactment or at common law to quash any order, scheme, certificate or plan, any amendment or approval of any plan, any decision of a minister or government department or any action on the part of a minister or government department.
2. In this Part – such applications are referred to generally as “applications for an administrative order”.
3. The term “judicial review” includes the remedies (whether by way of writ or order) of –
   1. certiorari, for quashing unlawful ads;
   2. mandamus, for requiring performance of a public duty, including a duty to make a decision or determination or to hear and determine any case; and
   3. prohibition, for prohibiting unlawful acts.
4. In addition to or instead of an administrative order the court may, without requiring the issue of any further proceedings, grant –
   1. an injunction;
   2. an order for the return of any property, real or personal; or
   3. restitution or damages.

Who may apply for judicial review

56.2

1. An application for judicial review may be made by any person, group or body which has sufficient interest in the subject matter of the application.
2. This includes –
   1. any person who has been adversely affected by the decision which is the subject of the application;
   2. any body or group acting at the request of a person or persons who would be entitled to apply under paragraph (a);
   3. any body or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application;
   4. any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application;
   5. any statutory body where the subject matters falls within its statutory limit; or
   6. any other person or body who has a right to be heard under the terms of any relevant enactment or Constitution. 

Judicial review – application for leave

56.3

1. A person wishing to apply for judicial review must first obtain leave.
2. An application for leave may be made without notice.
3. The application must state –
   1. the name, address and description of the applicant and respon­dent;
   2. the relief, including in particular details of any interim relief sought;
   3. the grounds on which such relief is sought;
   4. the applicant’s address for service;
   5. whether an alternative form of redress exists and, if so, why judicial review is more appropriate or why the alternative has not been pursued;
   6. details of any consideration which the applicant knows the respon­dent has given to the matter in question in response to a complaint made by or on behalf of the applicant;
   7. whether any time limit for making the application has been exceeded and, if so, why;
   8. whether the applicant is personally or directly affected by the decision about which complaint is made;
   9. if the applicant is not personally or directly affected – what public or other interest the applicant has in the matter;
   10. the name and address of the applicant’s legal practitioner (if applicable); and
   11. the applicant’s address for service.
4. The application must be verified by evidence on affidavit which must include a short statement of all the facts relied on.

Judicial review – hearing of application for leave

56.4

1. An application for leave to make a claim for judicial review must be considered forthwith by a judge of the High Court.
2. The judge may give leave without hearing the applicant.
3. However, if –
   1. it appears that a hearing is desirable in the interests of justice;
   2. the application includes a claim for immediate interim relief; or
   3. the judge is minded to refuse the application; the judge must direct that a hearing in open court be fixed.
4. The judge may direct that notice of the hearing be given to the  respondent or the Attorney General of the relevant Member State or Territory.
5. Where the application relates to any judgment, order, conviction or other proceedings which are subject to appeal, the judge may adjourn consideration of the application to a date after the appeal has been determined.
6. The judge may allow the application to be amended.
7. The judge may grant leave on such conditions or terms as he or she considers just.
8. Where the application is for an order (or writ) of prohibition or certiorari the judge must direct whether or not the grant of leave operates as a stay of the proceedings.
9. The judge may grant such interim relief as appears just.
10. On granting leave the judge must direct when the first hearing or, in case of urgency, the full hearing of the claim for judicial review should take place.
11. Leave must be conditional on the applicant making a claim for judicial review within 14 days of receipt of the order granting leave.

Delay

56.5

1. In addition to any time limit imposed by any enactment, the judge may refuse leave or to grant relief in any case in which the judge considers that there has been unreasonable delay before making the application.
2. When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to –
   1. be detrimental to good administration; or
   2. cause substantial hardship to or substantially prejudice the rights of any person.

Proceedings by way of claim which should be application for administrative order

56.6

1. This rule applies where a claimant issues a claim for damages or other relief other than an administrative order but where the facts support­ing  the claim are such that the only or main relief is an administrative order.
2. The court may at any stage direct that the claim is to proceed by way of an application for an administrative order.
3. If the appropriate administrative order would be for judicial review, the court may give leave for the matter to proceed as if an application had been made under rule 56.3.
4. If the court makes an order under paragraph (2), it must give such directions as are necessary to enable the claim to proceed under this Part.

How to make application for administrative order

56.7

1. An application for an administrative order must be made by a fixed date claim in Form 2 identifying whether the application is for
   1. a declaration;
   2. judicial review;
   3. relief under the relevant Constitution; or
   4. for some other administrative order (naming it); and must identify the nature of any relief sought.
2. The claim form in an application under a relevant Constitution requir­ing an application to be made by originating motion should be headed ‘Originating Motion’.
3. The claimant must file with the claim form evidence on affidavit.
4. The affidavit must state –
   1. the name, address and description of the claimant and the defen­dant;
   2. the nature of the relief sought identifying –
      1. any interim relief sought; and
      2. whether the claimant seeks damages, restitution, recovery of any sum due or alleged to be due or an order for the return of property, setting out the facts on which such claim is based and, where practicable, specifying the amount of any money claimed;
   3. in the case of a claim under the relevant Constitution – the provision of the Constitution which the claimant alleges has been, is being or is likely to be breached;
   4. the grounds on which such relief is sought;
   5. the facts on which the claim is based;
   6. the claimant’s address for service; and
   7. the names and addresses of all defendants to the claim.
5. The general rule is that the affidavit must be made by the claimant or, if the claimant is not an individual, by an appropriate officer of the body making the claim.
6. If the claimant is unable to make the affidavit it may be made by some person on the claimant’s behalf but must state why the claimant is unable to do so.
7. On issuing the claim form the court office must fix a date for a first hearing which must be endorsed on the claim form.
8. The general rule is that the first hearing must take place no later than 4 weeks after the date of issue of the claim.
9. Notwithstanding paragraph (8), any party may apply to a judge in chambers for that date to be brought forward or for an early date to be fixed for the hearing of the application for an administrative order.
10. The application may be made without notice but must be supported by evidence on affidavit.

Joinder of claims for other relief

56.8

1. The general rule is that, where permitted by the substantive law, an applicant may include in an application for an administrative order a claim for any other relief or remedy that –
   1. arises out of; or
   2. is related or connected to; the subject matter of an application for an administrative order.
2. In particular the court may, on a claim for judicial review or for relief under the Constitution award –
   1. damages;
   2. restitution; or
   3. an order for return of property to the claimant; if the –
      1. claimant has included in the claim form a claim for any such remedy arising out of any matter to which the claim for an administrative order relates; or
      2. facts set out in the claimant’s affidavit or statement of case justify the granting of such remedy or relief; and
      3. court is satisfied that, at the time when the application was made the claimant could have issued a claim for such remedy.
3. The court may however at any stage –
   1. direct that any claim for other relief be dealt with separately from the claim for an administrative order; or
   2. direct that the whole application be dealt with as a claim and give appropriate directions under Parts 26 and 27; and
   3. in either case, make any order it considers just as to costs that have been wasted because of the unreasonable use of the procedure under this Part.

Service of claim form for administrative order         

56.9

1. The claim form and the affidavit in support must be served on the defendants not less than 14 days before the date fixed for the first hearing.
2. A claim form relating to an application for relief under a relevant Constitution must be served on the Attorney General of the Member State or Territory concerned.
3. If leave has been given to make a claim for judicial review, the claimant must also serve a copy of the –
   1. application for leave;
   2. affidavit in support; and
   3. order giving leave.
4. The claimant must file at the court office not less than 7 days before the date fixed for the first hearing an affidavit which –
   1. gives the names and addresses of all defendants who have been served with the claim;
   2. states the date and place of service on each defendant;
   3. where applicable, states when the claim form was served on the Attorney General; and
   4. if any defendant has not been served, states that fact and the  reason for not doing so.
5. If the judge considers that any person who should have been served has not been served, the judge may adjourn the first hearing to a fixed date and give directions for service.
   • Part 5 deals generally with the service of claims.

Evidence in answer

56.10

1. Any evidence filed in answer to a claim for an administrative order must be by affidavit but the provisions of Part 10 (defence) apply to  such affidavit.

First hearing

56.11

1. At the first hearing the judge must give any directions that may be required to ensure the expeditious and just trial of the claim and the provisions of Parts 25 to 27 of these Rules apply.
2. In particular the judge may –
   1. allow any person or body appearing to have sufficient interest in the subject matter of the claim to be heard whether or not served with the claim form;
   2. direct whether any person or body having such interest –
      1. is to make submissions by way of written brief; or
      2. may make oral submissions at the hearing;
   3. allow the claimant to –
      1. add or substitute a claim for relief other than an administra­tive order;
      2. amend any claim for an administrative order; or
      3. substitute another form of application for that originally made;
   4. direct that claims by one or more persons or bodies or against one or more persons in respect of the same office made on the same grounds be consolidated or heard together; and
   5. make orders for –
      1. witness statements or affidavits to be served;
      2. cross-examination of witnesses; and
      3. disclosure of documents.

Procedural applications

56.12

1. Wherever practicable any procedural application during a claim for an administrative order must be made to the judge who dealt with the first hearing unless that judge orders otherwise.

Hearing of application for administrative order

56.13

1. At the hearing of the application the judge may allow any person or body which appears to have a sufficient interest in the subject matter of the claim to make submissions whether or not served with the claim form.
2. Such a person or body must make submissions by way of a written brief unless the judge orders otherwise.
3. The judge may grant any relief that appears to be justified by the facts proved before the judge, whether or not such relief should have been sought by an application for an administrative order.
4. The judge may, however, make such orders as to costs as appear to the judge to be just including a wasted costs order.
5. If the judge makes any order as to costs the judge must assess them.
   • Rules 65.11 and 65.12 deal with the assessment of costs.
6. The general rule is that no order for costs may be made against an applicant for an administrative order unless the court considers that the applicant has acted unreasonably in making the application or in the conduct of the application.
   • Part 64 deals with the court’s general discretion as to the award of costs.

Special provisions relating to orders for judicial review

56.14

1. If the claimant seeks an order or writ of certiorari to remove any proceedings for the purpose of quashing them, the claimant may not question the validity of any order, warrant, commitment, conviction or record unless –
   1. before the trial the claimant has lodged with the court office a copy of the order, etc. verified by affidavit; or
   2. the claimant can account for the failure to do so to the satisfaction of the court.
2. If the claim is for an order or writ of certiorari, the judge may if satisfied that there are reasons for quashing the decision to which the claim relates –
   1. direct that the proceedings be quashed on their removal to the High Court; and
   2. may in addition remit the matter to the court, tribunal or authority concerned with a direction to reconsider it in accordance with the findings of the High Court.