What is the difference between judicial review and an appeal?

Understanding the difference between judicial review and an appeal is particularly important for junior lawyers working in litigation, public law, and the court system (such as associates, tipstaves and researchers). Although the basics of judicial review are taught at law school, it can be easy to quickly forget the basic distinction between judicial review and an appeal.

Appeal

An appeal challenges the outcome of a particular decision made by a tribunal or court. Generally, a person who is a party to the matter or aggrieved by the decision can lodge an appeal. Understanding the court hierarchy and statute detailing the right to appeal is important in understanding where to lodge your appeal. For example, if the original decision was made by the Victorian Civil and Administrative Tribunal (VCAT), an appeal can be made to the Supreme Court of Victoria (except if the decision was made by a President or Vice President of VCAT where the application for appeal must be made to the Court of Appeal).

Appeals can be by right or discretionary. Where the appeal is discretionary, an application must address why the appeal should be allowed and the grounds for appeal should. Leave to appeal will generally be granted at the Court of Appeal level where the applicant has “a real prospect for success”.

An example of when leave to appeal is required is for appeals to the High Court acting in its appellate jurisdiction under s.73 of the Commonwealth Constitution. The potential appellant must make an application for leave or special leave to appeal by filing Form 23 (r.41.03 High Court Rules 2004). Where leave is granted to appeal, the appellant can then initiate the appeal proceedings by filing the Form 24 notice of appeal (r.42.01, r.42.02 High Court Rules 2004).

After an appeal has been allowed, the appellate court will then make a decision as to whether the grounds of appeal have been made out. The appeal court will consider the submissions and decide on one of the following outcomes:

1.       Affirm the lower court decision;

2.       Modify the lower court decision – where the appellate court agrees in part with the lower court decision; or

3.       Reverse the lower court decision and find for the appellant. Where the appellate court finds that the lower court’s decision cannot be sustained, the decision of the lower court can be set aside. Reversing the lower court decision may also include setting aside orders made by the lower court and making new orders.

Pursuing judicial review of a decision is very different from appealing a decision. While an appeal focuses on whether the decision itself is correct or incorrect, judicial review focuses on whether the decision maker conformed with statutory or common law powers conferred on the decision maker.

Judicial review

Judicial review is an application for the court to determine whether an official action conforms with the power given. The judicial review process scrutinises the decision making process and analyses whether or not the decision was made within power. Decisions that may be subject to judicial review include decisions made by the executive arm of government, decisions made by tribunals, and decisions made by lower courts.

Examples of when an application for judicial review might be made is where there is some evidence the entity/decision maker granted with the public power has:

·         breached the limits placed on the grant of that power;

·         done something more than was authorised;

·         done something authorised in an unauthorised way; or

·         not done something when there was a duty to act.

The bar for finding an error has occurred is high – it is not enough that the court would have been minded to act differently – the regulator’s misjudgement or error must be so substantial as to take the impugned act or omission beyond that realm where reasonable minds would agree to differ.

The power to conduct judicial review comes from a number of sources:

1.       State and Territory Supreme Courts – the judicial review jurisdiction was part of the common law powers of the Supreme Courts at their foundation, and included the power to issue prerogative writs such as certiorari, prohibition and mandamus. Several jurisdictions have extended review powers to tribunals, such as NSW which has the NSW Civil and Administrative Tribunal and Victoria which has VCAT.  

2.       Federal Court (ADJR Act review)– has been granted a statutory judicial review jurisdiction by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court can also undertake Constitutional judicial review, as s.39B(1) of the Judiciary Act 1903 gives the Federal Court similar jurisdiction to the High Court’s judicial review power under s.75(v) of the Commonwealth Constitution.

3.       High Court (Constitutional judicial review) – section 75(v) of the Commonwealth Constitution gives the High Court original jurisdiction in a number of matters including all matters “in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth”.  

Where a decision maker has not acted in conformity with the power given, the court will treat the decision as a nullity. The purported exercise of power is disregarded and is treated as yet to be effectively exercised. The court conducting the judicial review generally cannot substitute its decision for the decision of the original decision maker. If a court decides a decision was made beyond the scope of the original decision maker’s powers, the matter will be sent back to the relevant tribunal or government agency for the decision to be remade in accordance with the decision maker’s powers.

At common law, a number of remedies developed from prerogative writs are available where an application for judicial review is made. A prerogative writ is an official order whereby the judiciary directs another arm of government (the executive). These remedies commonly include:

1.       Mandamus – compels the performance of a public duty – i.e. compels a decision maker to make a decision.

2.       Prohibition – prohibits the decision maker from acting outside of the law.

3.       Certiorari – quashed past conduct for which there was no jurisdiction.

Less commonly:

4.       Quo warranto – requires a person to show the authority on which they hold a certain power.

5.       Procedendo – appellate court orders a lower court to proceed with judgment.

The ADJR Act expanded the type of remedies available and removed some of the requirements of the prerogative writs. For example, remedies available under s.16(1) of the ADJR Act include:

1.       Quashing or setting aside the decision;

2.       Referring the decision back to the decision maker for further consideration;

3.       Declaration stating the rights of the parties; and

4.       Directing parties to do or refrain from doing an act.

The outcome of a judicial review is very different to the outcome of an appeal where a judge can substitute the decision of the first instance judge with its own decision where necessary.

The distinction sounds easy….

The distinction between an appeal and an application for judicial review appears easy. However, it can get confusing for junior lawyers when reading a judgment where it is not made initially clear whether it is an appeal or a judicial review. In this case, scroll to the bottom of the judgment and look at the language used in the decision and orders. It is important to keep the difference in the forefront of your head. While most of the time litigation lawyers will appeal decisions, there may be circumstances in which an application for judicial review may lead to the desired outcome, especially where damages are not sought.