Establishing “standing” is no longer a legal prerequisite to quashing a governmental decision in the Supreme Court

Two recent decisions in the Supreme Court of Western Australia have clarified that an applicant no longer needs to establish their “standing” in order to challenge a governmental decision that they allege to be unlawful.

If a person alleges that a decision made by government is unlawful, they may apply to the Supreme Court for a “writ of certiorari” to quash the challenged decision.  Such proceedings are commonly known as judicial review proceedings.  If an applicant demonstrates to the Supreme Court that a governmental decision is tainted by legal error, the Court may intervene and invalidate the challenged decision.

It has historically been the case that a person seeking to invalidate a governmental decision via judicial review has first had to prove their standing as a threshold issue, that is, to prove to the Supreme Court that they have sufficient proximity and interest in the challenged decision to justify the application being made.

Her Honour Justice Pritchard in the two recent cases of Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 (handed down on 9 August 2016) and Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 (handed down on 24 August 2016) has held, following recent High Court authority, that an applicant who is only seeking a writ of certiorari to invalidate a challenged decision does not actually need to demonstrate their standing.

These two recent decisions of the Supreme Court suggest that any person who alleges that a decision of government is unlawful may now apply to the Supreme Court via judicial review proceedings to seek to challenge the decision in question.  This position could potentially broaden the avenues for challenging decisions of government and increase the likelihood of particular decisions being challenged.

There are a couple of caveats however, in the sense that Her Honour Justice Pritchard confirmed that certiorari remains a discretionary remedy and the Supreme Court may refuse to quash a decision in particular circumstances.  It has also been confirmed that standing remains a requirement for obtaining other judicial review remedies, such as a declaration.

If you believe that a decision of government is potentially unlawful, and wish to explore the merits in commencing a judicial review challenge in the Supreme Court, please feel free to contact the Lavan Legal Planning and Environment team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.