Judicial review under Order 56

It is possible for an infringement offender to seek judicial review of a Magistrate’s decision under s 165 of the Fines Reform Act 2014 (Vic) (FRA). This was the mechanism used by the plaintiff in Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 and affirmed by the Victorian Supreme Court, Court of Appeal in Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37. In the absence of a right of appeal, Victoria Legal Aid applied for judicial review of the Magistrates’ sentencing decisions.

Given that there is now a right to rehearing enshrined in s 167 of the FRA, an application for judicial review will only be relevant in exceptional circumstances where there is a clear and meritorious ground for judicial review.

Judicial review proceedings are commenced pursuant to Order 56 Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). Under OO 56.01(2) and O 56.02(1) a proceeding for judicial review must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. If a plaintiff wishes to commence judicial review outside of this limitation period, they must first seek leave to do so under O 56.02(3) of the Rules and the Court will only do so under exceptional circumstances (see Kuek v Victoria Legal Aid & Anor [2001] VSCA 80).

If a plaintiff’s judicial review application is upheld the Court is given powers under O 56.01(1) to issue writs of in the nature of certiorari, mandamus, prohibition and quo warranto.

It is also important to note that if an infringement offender is unsuccessful in an application for judicial review, a costs order is likely to be made against them. The client needs to be advised of this risk, asked to enter into a conditional costs agreement and generally need to be assessed as being judgment proof.

To make an application for judicial review under O 56.01(2), you need to file at the Supreme Court prothonotary office the following:

  • An originating motion (Form 5G of the Rules);
  • A summons (Form 46A of the Rules). The summons is an application on summons for a directions hearing and must be filed within 7 days of the originating motion pursuant to O 56.04(2) of the Rules. Preferably it should be filed together with the originating motion;
  • The summons should be filed together with the Judicial Review Appeal List Hearing Date Information Form which is emailed to judicialreview@supcourt.vic.gov.au;
  • An affidavit in support and any other relevant affidavits;
  • Fee Waiver Affidavit and Application (almost all Homeless Law clients will be eligible for a fee waiver); and
  • A proper basis certificate (Form 4B of the Rules) and overarching obligations certification (Form 4A of the Rules.

Once filed with the Supreme Court prothonotary, you will need to arrange for personal service of all of these documents on the defendant.

If judicial review is being sought on conventional administrative law grounds together with Charter based judicial review grounds, you will need to (in addition to the above steps):

  • Prepare a Charter Notification under s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and file this with prothonotary together with the originating motion, and personally serve the notification on the defendant and email to the Victorian Government Solicitors Office (VGSO) at charter@vgso.vic.gov.au and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) at legal@veohrc.vic.gov.au.

Given the complexity of judicial review matters and the potential cost consequences, you must always speak with your team leaders in addition to Homeless Law principal lawyers before perusing judicial review remedies on behalf of a client. In most cases, it will be appropriate to request the assistance of pro bono counsel to advise on the merits of the application before proceeding. Contact Homeless Law staff if you are considering this option and we may be able to connect you with pro-bono counsel through the Victorian Bar Pro Bono Scheme.


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