Judicial review is quite different from an administrative appeal. Judicial review examines the power or jurisdiction to make a decision or to take some action. It is not concerned with the merits of the decision. Courts therefore consider two basic questions when hearing an application for judicial review:
- whether there was power to do the act or make the decision in question
- if there was power, whether the power was exercised lawfully.
If the answer to either question is ‘no’, the action or decision may be quashed (overturned) and the decision maker ordered to reconsider. Judicial review will only be successful if the decision maker can be shown to have breached one or more of the relevant statutory or common law principles governing administrative functions. Except in the most exceptional circumstances, courts are not concerned with the merits of the decision.
When a judicial review application is successful, the court will usually set aside the particular action or decision, and order the decision maker to reconsider their decision according to law. The decision maker may reach exactly the same decision the second time around, but this time in accordance with the correct legal procedures.
Applications for judicial review must be heard in superior courts in either the Commonwealth or the state jurisdiction and often involve complicated legal questions.
A successful applicant for judicial review will usually have their costs paid by the losing party. An unsuccessful applicant may be ordered to pay the costs of the decision maker, as well as having to pay their own costs.
Administrative appeals are designed specifically to reconsider the merits of an administrative action or decision (i.e. whether it was the ‘correct or preferable decision on the facts of the case’).
A successful administrative appeal will most often result in the tribunal substituting its own decision in favour of the applicant.
Under the Queensland Civil Administrative Tribunal legislation, in most cases, each party bears their own costs of the administrative appeal (called a ‘review of administrative decision’), so there is little prospect of being burdened with an adverse costs order if an application is unsuccessful.