JR Pre-Hearing Issues

Commencement

The application is made by an originating notice of motion unless otherwise directed by court. The statement of grounds and the court order for leave determines the scope of the proceedings.

The notice of motion order for leave and statement of grounds and affidavits are served on all persons affected by the application. This must be done within seven days of the perfection of the order granting leave or such other period as the court may allow. An affidavit of service is to be filed and produced to the court at the application stage.

In theory, a case for judicial review can commence by plenary summons. In practice this would rarely happen. The same time limits apply. A case which is commenced by application for leave can be directed to be brought by plenary summons. The proceedings can be ordered to continue as if it was a plenary hearing plenary case. The court may give directions as to pleadings.

Before the application is heard, Practice Directions require filing of a booklet of papers including copy of the notice of motion

• order granting leave
• statement of grounds
• affidavit which verifies it
• statement of opposition
• affidavit verifying the same
• affidavit of personal service
• order to be quashed/ nullified if applicable

Directions

Directions are usually made in advance, regarding filing and exchange of  legal submissions. Cases are called over for the following week and practitioners are to advise as to the whether the case is proceeding.

The court may at the hearing of an application for leave give directions for the conduct of the proceedings in a manner which is just expeditious and likely to minimise costs.

This may include
• directions as the service of notice of application on other parties
• directions for filing a further affidavits by parties
• ordering fixing time limits
• discovery directions
• directions for exchange of memoranda for the purpose of agreeing issues of fact and law to be determined
• order in relation to clarifying pleadings or points of claim and defence between the parties
• directions as to furnishing by the parties and delivery of written submissions
• directions on the publication of notice of the hearing and giving of notice in advance to such to third parties who desire to be heard.

Opposition

A respondent served with the above papers may prepare and file a statement of opposition in the Central Office within three weeks of the notice or such other period as may be allowed. A verifying affidavit is required.

As with pleadings, it is not sufficient simply to deny the claim. The respondent must set out precisely the grounds of opposition and identify the facts and matters relied on supporting each ground. It must deal specifically with each fact or matter relied on in the statement.

If any facts are relied on in the in the statement of opposition, an affidavit verifying the facts must be filed. Where the decision relates to a decision of a lower court judge the registrar will swear the affidavit and not the judge.

Even if no statement of opposition is filed it is not that the applicant is entitled to succeed automatically. The judge must be persuaded of the merits of the case.

Each party must within three weeks of the statement of grounds or statement of opposition or such other period as the court may direct, exchange with the other parties and file in the Central Office, written submissions on points and issues of law that the party proposes to make in the hearing of the application.

The court may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application. This in effect may allow a replying affidavits.

Third Parties & AG

Judicial review proceedings may affect third parties who are made notice of the proceedings because of their interest in it. Such parties are to be notified because they may wish to intervene in support of the respondent or applicant, as the case may be.

A party who has not been served may be entitled to be heard if he is a proper person to be heard and has an interest in the matter. The court has considerable discretion. It may during the proceedings allow service on such party.

A notice party is entitled to be involved in proceedings to protect its interests. It may be in the same position as the respondent. This depends on the circumstances. For example, the respondent may concede the case as a matter of convenience but the notice party may wish to contest it.

Persons directly affected on whom proceedings are to be served may be a matter open to interpretation in some cases. These will be persons with a vital interest in the outcome of the particular application, The party must be directly affected. Direct effect on substantial interests is required.

If the application for judicial review relates to any proceedings in or before a court and the object of the application is either to compel that court or an officer of that court to do any act in relation to the proceedings or to quash them or any order made therein—

• the judge of the court concerned shall not be named in the title of the proceedings by way of judicial review, either as a respondent or as a notice party, or served, unless the relief sought in those proceedings is grounded on an allegation of mala fides or other form of personal misconduct by that judge in the conduct of the proceedings the subject of the application for judicial review such as would deprive that judge of immunity from suit,
• the other party or parties to the proceedings in the court concerned shall be named as the respondent or respondents, and
• a copy of the notice of motion or summons must also be sent to the Clerk or Registrar of the court concerned.

A notice party may decide to participate in judicial review. It may do so in the same manner as the respondent. Generally, a notice party who is necessary and innocent party has participated in proceedings may be entitled to costs. The general principles as to costs apply. If he has acted reasonably in seeking to participate in the proceedings, he may be entitled to costs. If proceedings are discontinued, a party may be entitled to costs.

Interlocutary Applicaitons

In judicial review proceedings, an interlocutory application may be made. This includes an application for an injunction, discovery attendance and cross-examination of persons who have given evidence on affidavit.

If the applicant does not seek a stay, or the court declines a stay, the applicant may by way of notion of motion on notice seek an injunction.

An application may be sought for discovery.

Amendment

An application may be made by the applicant or the respondent to amend their statement of grounds in opposition. The statement may be amended by specifying different or additional grant relief or otherwise in such terms as the court thinks fit.

The application is made by notice of motion and affidavit. The rules provide that no ground shall be relied on, except those in the statement of grounds and application for judicial review.

The test for amendment of the grounds is much stricter than in ordinary pleadings. An applicant or respondent who intends to apply for leave to amend his case must give notice of his intention and of the proposed amendment to every other party. It is only in exceptional circumstances that liberty to amend the grounding statement will be allowed.

When facts come to light which could not be known at the time, leave may be allowed. When the amendment would not prejudice the respondents it may be allowed.

A wider test allowing an amendment on the grounds of the interests of justice and protection of constitutional rights has also been allowed. This approach weighs the interests of the parties. The object of the systems to strike a fair balance between certainty and security of administrative decisions and the rights of persons affected. On this view, the court should not be precluded from amending the terms of leave, where the interests of justice so require.

The onus is on the applicant to satisfy the court that there are good reasons to explain why the amendment sought was not set out in the proceedings. The courts are reluctant to introduce what amounts to an claim for an entirely new relief or what amounts to a challenge to a different decision.

Amendment Issues

If the amendments amount in essence to questions of pure law and do not significantly enlarge the case the amendment is more likely to be permitted. If the amendment is likely to involve new facts and affidavits, the court may be less inclined to allow it.

An amendment is be more likely to permitted if adding the point will assist the final disposal of the proceedings. Conversely it is less inclined to permit the proposed amendment where the opposite is the case.

The court will ask whether the issue arises naturally or by implication out of the existing proceedings. If it does not, the court would be less inclined to permit the proposed amendment. If the proposed amendment would cause delay, the court may be less inclined to permit an amendment

In considering the proposed amendment, the court is to have regard to the prejudice likely to be caused to the respondent and also third parties who have incurred costs in intervening in the proceedings. If an applicant has acquiesced in the situation and later seeks to challenge it, this is a factor to the contrary.

In some cases, allowing an amendment may be preferable in terms of overall costs and efficiency, relative to entirely new proceedings. Some amendments are more readily allowed where they arise naturally or by implication. The courts remain unwilling to allow an entirely new case to be advanced by way of amendment. If a substantially new case is put forward, then the application for amendment is treated more like a leave for review application.