How can I apply for a judicial review in the Supreme Court of Victoria?

Judicial review is not the right option if you are challenging a decision simply because you are unhappy with the decision. You must have reasons (called “grounds”) for a judicial review.   

Common grounds for judicial review are listed below: 

• A breach of natural justice– For example, the decision maker was biased or did not allow everyone involved to present their side of the dispute. 

• An error of law– For example, the decision maker made a legal mistake, misunderstood the law or applied the law wrongly. 

• A failure to follow procedures- For example, the decision maker was supposed to follow certain protocols and didn’t.  

• Failure to take into account something that is relevant– For example, the decision maker didn’t consider some of the evidence that was provided to them. 

• The decision was made in bad faith– For example, the decision maker was motivated by an ulterior motive.  

• The decision was not based on evidence– For example, the decision maker reached conclusions that were not sufficiently supported by the evidence. 

It is important to be aware that if your judicial review succeeds, the Judge will probably send the decision back to the original decision-making body to be re-made. 

You must start your application for a judicial review within 60 days from the date of the decision. 

If you have missed this deadline, you can ask the Court for an extension of time to file your application. You must have good reasons for your delay. 

The decision could be a court order or a letter from a government body. You should request a copy of written reasons for the decision if possible.  

If the decision was made at a hearing, the hearing was likely recorded. You should write to the decision-maker and request a transcript of the hearing. 

If you lose a judicial review, you may be ordered to pay the other side’s legal fees. These fees can be very high.  

There are four documents you have to file:

• Originating Motion for Judicial Review (Form 5G) – this is your most important document. It sets out the reasons why you believe the decision maker did not properly follow the law when they made their decision (the “grounds”) and what you want the Judge to do (this is called “relief”).

• Affidavit – this is a written statement sworn setting out the background to the matter. Key documents, such as the decision, should be attached as “exhibits” to your affidavit. If you are applying late, you should include reasons why the Court should give you permission to apply late and any evidence to support these reasons (e.g. a medical certificate).

• Proper Basis Certification – this is a form you have to sign to confirm that the claims you make have a proper basis.

• Overarching Obligations Certification – this is a form you have to sign to confirm that you will comply with obligations you owe the Court, such as to act honestly and cooperate to resolve the dispute.

You will need to pay the court fee or apply for a fee waiver when you file your application. This table shows the Court’s fees.

For details about how to file documents, you should read our resource about filing documents during COVID-19.

A directions hearing is where the Court sets a timetable for your judicial review. You can ask the Court for a directions hearing by filing the following documents:

• A Judicial Reviews and Appeals List Hearing Date Information Form

• A draft summons (Form 46A) for a directions hearing. The summons is the document which requires the other party to attend Court.

You can file these documents at the same time as you file your application documents.

The Court will usually reply within 2 business days to confirm the date for your directions hearing.

Once you have a date for your directions hearing, file the following documents as soon as possible:

• A completed Summons (Form 46A) which includes the date for the directions hearing.

• The Supreme Court notice you received telling you the date of the directions hearing

The Court will confirm once it has accepted your documents for filing and sealed them.

You need to formally deliver the sealed documents to the other party as soon as you received them from the Court and at least 14 days before the Directions Hearing. This is called “serving” the other party.

The other party may respond to your documents, for example, by filing a Notice of Appearance or making an application to the Court of their own. The other party must provide you with a copy of any documents they file.

You should also send a copy of your sealed documents to the original decision maker so they have a copy for their record.

The directions hearing is a short hearing where the Court sets a timetable for your case up to the final hearing. You do not present your arguments for why your judicial review should succeed at the directions hearing.

The directions hearing will probably be held remotely due to COVID-19. You should read our resource about how to prepare for remote hearings before attending.

At the directions hearing, the Court will make Orders.

You must read the Orders carefully. The Orders will show you what steps you have to take up to the final hearing and the deadlines you have to meet for each step. This may include filing submissions and attending a mediation. You should diarise all of the important dates in the Orders.

If you cannot meet any of the deadlines, you should let the Court and the other side know with as much notice as possible.

This is where you explain why your judicial review should succeed to the judge. Witnesses are rarely called at judicial reviews- the hearing will likely focus on the documents filed by you and the other party.

Note, the Court is experiencing delays due to COVID-19. Your final hearing may only take place many months after you file your application documents- possibly up to a year.