Judicial Review - An Update

HISTORICAL TRENDS AND KEY PRINCIPLES IN JUDICIAL REVIEW

Introduction

Judicial review is the body of law relating to the review of the justiciable acts, decisions, determinations, orders and omissions of individuals and bodies performing public functions. Judicial review of the decision-making activities of these bodies is generally perceived as an important constitutional procedure to prevent those exercising public functions from abusing their powers.

Self-restraint

The development of judicial review has been marked by the reluctance of the courts to extend the scope of judicial review beyond matters of compliance with statutory requirements as to form and procedure. This judicial self-restraint is founded on the reluctance of the courts to encroach on the exercise of supremacy of Parliament, or to unduly restrict the acts of the Executive for which that branch of government is responsible on a political level to Parliament.[2]

No substantive review of legislation in NZ

In this Country, once legislation has been assented to and becomes law, there is no limit to its legal efficacy, and the courts in New Zealand do not allow judicial review to infringe this doctrine[3]. In this regard the position in New Zealand is now more or less unique: in the USA, judicial review of the constitutionality of legislation has been permitted since the early 1800s[4]; the courts of both Canada and Australia have similar powers[5]. Even in the UK, the home of parliamentary supremacy, judicial review of legislation is now permissible as part of the United Kingdom’s obligations under European Community Law and, in particular, the European Convention on Human Rights. The courts in the United Kingdom will, in cases of legislative ambiguity, defer to an interpretation that is consistent with the Convention,[6] and may grant urgent interlocutory relief in cases where rights are claimed under European Community Law, which challenge domestic United Kingdom law.[7]

Overview of the development of judicial review

Nevertheless, the classic theory of judicial review is that it is an important restraint on the exercise of public power. By this theory, judicial review imposes upon all decision-makers standards that are inherent in a democracy and embraced by the rule of law. The role of the courts to uphold the rule of law and restrain the exercise of power has long been articulated: see the landmark decision in Entick v Carrington.[8] The King’s Bench established in that case that any exercise of power must be founded in law, and it is for the courts to determine the legal limits attendant to the exercise of that power.

Modern judicial review is generally regarded as a reaction to the growth of the size and power of the Executive from about the late 1800s, and more particularly as a result of the economic measures taken from the late 1920s to assist the British economy to recover from the effects of the Great Depression. But its roots may be traced further back. In Allnut v Inglis,[9] the King’s Bench, concerned with the exercise of monopolistic powers of a dock company, adopted a passage from Lord Hale’s Treatise de Portibus Maris[10] stating that wharfage and cranage duties must be reasonable because of the public interest in such amenities.[11]

In New Zealand, all the inherent powers exercised by the English Courts of Queen’s Bench, Common Pleas, Exchequer and Chancery were vested in the Supreme Court (after 1981, the High Court of New Zealand) when that Court was established in 1840.[12] Official action grew in New Zealand from, for the most part in 1840, enforcing criminal law and regulating the relationship between settlers and Maori, until it gradually came to regulate and control most areas of human activity.[13]

The primary purpose of judicial review was summarised by Lord Lindley M.R. in Roberts v Gwyrfai District Council:[14]

“I know of no duty of the Court which it is more important to observe, and no power of the Court which it is more important to enforce, than its power of keeping public bodies within their rights. The moment public bodies exceed their rights they do so to the injury and oppression of private individuals, and those persons are entitled to be protected from injury arising from such operations of public bodies.�

In the 1800s and early 1900s the courts operated on the presumption that all official action was valid and regular unless there was proof to the contrary.[15] In the United Kingdom especially this translated into an unwillingness to interfere with the actions (in particular) of local authorities “on the ground of supposed unreasonableness�,[16] or uncertainty[17] or ultra vires.[18] However, according to Paterson,[19] at least by 1967 the courts in New Zealand had declined to adopt such a broadly benevolent attitude to local authorities, confining the operation of the presumption to cases of contended unreasonableness.[20]

Up until at least the late 1960s, the courts confined themselves primarily to considerations of the authorisation of actions by officials, which is still commonly referred to now as the doctrine of ultra vires. Thus, actions by New Zealand’s Governor,[21] Governor General,[22] and Ministers of the Crown[23] have been subject to attempted review on the basis that they lacked authority either under prerogative powers of the Crown or an Act of Parliament, since the very early days of the colony.

The principal difficulty in determining whether a decision-maker has acted illegally occurs in those circumstances where the decision-maker has been granted a broad decision-making discretion. However, the courts’ jurisdiction is not ousted merely because the statute confers upon a decision-maker a discretionary power. As Lord Upjohn said in Padfield v Minister of Agriculture Fisheries and Food:[24]

“[T]he use of that adjective [unfettered discretion], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely, that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the [decision-maker] rather than by the use of adjectives.�

The courts maintain, as mentioned above, a reluctance to interfere in the exercise of a discretion that has been granted to a decision-maker. However, as recognised in Roberts v Hopwood,[25] the courts maintain their right as the ultimate arbiter of what is lawful.

By the 1970s, the courts in England had moved from the attitude expressed less than a decade earlier that they did not adjudicate over “a developed system of administrative law�,[26] to Lord Denning’s proclamation in 1971 that “it may truly now be said that we have a developed system of administrative law�.[27] Similar sentiments were articulated by Lord Devlin, who praised the progress of the courts towards a comprehensive system of administrative law as “having been the greatest achievement of the English Courts in my judicial lifetime�.[28]

In New Zealand, the Judicature Amendment Act 1972 (as amended in 1977) provided the opportunity for development of judicial review independently from the authorities handed down by English courts, and in 1985 Cooke J opined that “the time has probably come to emphasise that New Zealand administrative law is significantly indigenous�.[29]

The exercise by the courts of the judicial review power is not uncontroversial. It has been argued, especially by the Critical Legal Scholarship movement in the 1970s and 80s, that (in particular) substantive judicial review runs contrary to the rule of law.

The rule of law, it is argued, insists on a strict separation between law on one hand, and politics on the other. “Law�, in this sense, consists of those substantive and procedural rules that govern the determination and application of law. The content of these rules must be fully determined prior to their application, otherwise they would be exercised arbitrarily (and thus) in violation of the norms of justice. “Politics�, in contrast, is the means by which laws are enacted and represent the democratically determined political will of society. Thus, the rule of law demands judicial fidelity to both pre-existing law and the authority of Parliament to determine what the law shall be. On this view, to the extent that a court acts in severe departure from pre-existing law or usurps the mandate of Parliament to enact law, not only may such a decision be wrong as a matter of law, but also itself be a violation of the rule of law.[30]

However, this paper does not in general critique the procedure, or the substantive law that has grown up around it. Instead, it seeks to describe the manner in which the power is exercised by the courts in this Country, and the practical considerations of this exercise for decision-makers.

Scope of Review

Public bodies may exceed their rights in a number of ways. Acting in excess of jurisdiction does not necessarily connote any implication of bad faith on behalf of the decision-maker. Rather, it may simply be the case, for example, that the decision-maker has misunderstood the legal position. Indeed, as the law has become more complex and executive agencies have become fundamental to the effective operation of central government, the importance and number of judicial review decisions have increased markedly.[31]

Traditionally, a decision will be amenable to review where the power exercised is derived from statute, statutory instrument or the exercise of the prerogative, and the subject matter of the power is justiciable. This scope of review has gradually expanded and is now more completely reflected in the statement of Lord Diplock in C.C.S.U. v Minister for the Civil Service,[32] where His Lordship stated that a decision will be susceptible to judicial review where a decision-maker is empowered by public law to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers.[33]

The broad scope of judicial review therefore now includes inter alia decisions by Ministers of the Crown,[34] government departments,[35] local authorities,[36] incorporated and unincorporated bodies exercising public functions,[37] non-statutory regulatory bodies[38] and commissions of inquiry.[39] The touchstone for review appears to be whether the exercise of power by the decision-maker is in substance public or has important public consequences.[40]

Justiciability

Not all decisions are open to review by the courts. Some, with a high level of policy content, are deemed to be beyond the competence of the intervention of judges and therefore “not amenable to the judicial process�.[41] Such decisions, identified by De Smith, Woolf and Jowell:[42]

“include those [decisions] that necessitate the evaluation of social and economic policy,[43] or the allocation of scarce resources among competing claims.[44] Courts are institutionally unsuited to resolving these kinds of problem, which are best left to be decided in the political arena.�

The judicial recognition that some decisions are necessarily non-justiciable is a significant departure from the stricter approach formerly adopted by the courts, where the courts would in principle refrain from reviewing any “non- judicial� decision. As De Smith, Woolf and Jowell recognise:[45]

“…the courts have rejected the old distinction between “judicial� and “administrative� decisions (the latter being held not amenable to review). It can now be said that “it is not the label of ‘administration’ or ‘management’ that determines the existence of jurisdiction but the quality and attributes of the decision.�

Recently, in Curtis v Ministry of Defence,[46] Tipping J said on the issue of justiciability:[47]

“A non-justiciable issue is one in respect of which there is no satisfactory legal yardstick by which the issue can be resolved. That situation will often arise in cases into which it is also constitutionally inappropriate for the Courts to embark.�

On the merits of judicial review of the decision to disband the Air Combat Force of the Royal New Zealand Air Force, His Honour went on to say:[48]

“The only issue is whether his decision has left the RNZAF insufficiently armed. But that is par excellence a non-justiciable question. It is a question which is not susceptible of determination by any legal yardstick. Furthermore it is one of Government policy into which it is constitutionally improper for the Courts to go.�

Classification Of Grounds Of Review

There are now generally recognised to be three principal grounds of judicial review, specifically “procedural impropriety�, “irrationality�, and “illegality�. Lord Diplock identified these principal grounds of review in Council of Civil Service Unions and others v Minister for the Civil Services.[49]

The grounds of review are not discrete and there may be overlap between them. Moreover, as a general principle of law, these “grounds� are not considered exhaustive.[50] They merely impose labels upon the broad framework of judicial review of the justiciable exercise of public power by a decision-maker. They reflect the variety of principles which govern the law of judicial review, which is summarised by Sir Robin Cooke’s now well-known statement that “[t]he decision maker must act in accordance with law, fairly and reasonably�.[51]

Illegality

If a decision-maker contravenes or exceeds the terms of the power which authorises the making of the decision, or pursues an objective other than that for which the decision-making power was conferred, then the decision is likely to be tainted by illegality. The courts will review a decision which is tainted in this way to ensure that the exercise of power by the decision-maker is in accordance with what Parliament intended.

Lord Diplock defined the ground of illegality as encapsulating the requirement “that the decision-maker must understand correctly the law that regulates his decision making power and give effect to it�.[52] This involves identifying the parameters set by the empowering statute and having regard to whether the decision maker has:

exercised a power for an improper purpose;

made any mistakes of law;

made any mistakes of fact;

applied the law inconsistently.[53]

If a power has been granted to a decision-maker for one purpose and is exercised for another different purpose, then that power has not been properly exercised, and the exercise is unlawful. Decision-makers should not pursue “collateral objects�, the decision-maker’s power should not be “exceeded�, the purposes pursued by the decision-maker should not be “improper�, “ulterior�, or “extraneous� to those required by the statute, nor should “irrelevant considerations� be taken into account in reaching a decision. All these terms adopted by the courts signify that the decision-maker cannot lawfully act in pursuit of an improper purpose.[54]

A decision will not be in accordance with law if all mandatory relevant considerations have not been taken into account, or if irrelevant considerations have been allowed to influence the decision. That is, mandatory considerations of the statute must be given effect to by the decision-maker.

The mandatory considerations of the statute may be either expressly or impliedly specified. Express mandatory considerations are those directly identified in the empowering statute or regulation. Alternatively, implied mandatory considerations arise by implication from the statutory scheme, that is: the subject matter, scope and purpose of the relevant Act, including its objects and provisions; and/or by the context of the decision making. For example, the New Zealand Court of Appeal in Attorney-General v NZ Maori Council[55] held that the promotion of Maori language and culture was an implied mandatory relevant consideration in a decision to allocate radio frequencies under the Radio Communications Act 1984.

Not every potentially relevant fact or consideration is deemed to be a mandatory consideration. A consideration does not become mandatory merely because it may properly be taken into account, even if it is one the Court itself would have taken into consideration. It must be expressly or impliedly required by statute as a matter of legal obligation.[56] Furthermore, the Courts have emphasised that mandatory relevant considerations must be obvious to the reasonable decision-maker. These extend to facts “obviously material to the mandatory statutory considerations as were or ought to have been known� to the decision-maker.[57]

Once it has been established that irrelevant factors have influenced the decision, as a general rule, it is not necessary to prove that they were either the sole or dominant influence of the decision-maker.[58] It is enough to prove that their influence was material or substantial. On the other hand, if it is alleged that relevant considerations have been overlooked by the decision-maker, the court will normally try and assess the actual or potential importance of the factor that was overlooked.

The availability of judicial review for both mistake of fact and failure by the decision-maker to apply the law consistently will be considered later as developing trends in judicial review in New Zealand.

Irrationality

This ground of review differs from both illegality (whether the decision-maker has acted for a purpose outside that defined by the governing statute) and procedural propriety (the fairness of the procedure followed by the decision-maker). Instead, irrationality[59] triggers review when a bizarre or plainly unintended decision results from the exercise of a power of decision. Whereas the ground of illegality is sometimes criticised for being retrospective in exercise and therefore unhelpful to decision-makers, the irrationality ground is sometimes seen as an opportunity for capricious interference by the courts in matters of policy.

The most famous formulation that seeks to summarise this ground of review is that by Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[60] In that case, His Lordship held that a decision may be set aside if it is so unreasonable that no reasonable [decision-maker] could ever come to it.�[61] Unfortunately, the substantive decision in question demonstrates, at least to a reader 70 years later, the validity of the criticism of review on this ground.

In New Zealand, the relevant principles are summarised by the Court of Appeal in Wellington City Council v Woolworths NZ Ltd (No 2):[62]

“Even though the decision maker has seemingly considered all relevant factors and closed its mind to the irrelevant, if the outcome of the exercise of discretion is irrational or such that no reasonable body of person could have arrived at the decision, the only proper inference is that the power itself has been misused.

To prove a case of that kind requires “something overwhelming� (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 Lord Diplock said in respect of unreasonableness, or “irrationality� as he preferred to call it:

“It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.�

Similarly, in Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240, 247 - 248 Lord Scarman used expressions such as “so absurd that he must have taken leave of his senses� and “a pattern of perversity� as setting the standard and in Webster v Auckland Harbour Board [1987] 2 NZLR 129, 131 Cooke P spoke of an unreasonable decision as “one outside the limits of reason�.

Accordingly, the exercise of power may be unreasonable where the decision was taken in bad faith, is irrational or clearly involves the decision-maker giving manifestly inappropriate weight to relevant considerations. Furthermore, if the decision-maker fails to give effect to an individual’s legitimate expectation or fails to decide matters between individuals consistently, or ultimately is excessively oppressive of an individual’s interests, then the courts may hold that the decision-maker has acted irrationally.[63] As will be seen, the courts have attempted to diffuse criticism of the use of the power under this head by specifying that it may only be deployed in extreme cases.

The continuing tension surrounding irrationality as a ground of review is aptly illustrated by the decision of the English Court of Appeal in R v Ministry of Defence, ex parte Smith.[64] In this case, judicial review was sought challenging the policy of the Ministry of Defence prohibiting homosexual people from serving in the Armed Forces. The Court of Appeal concluded that the policy was not irrational and reaffirmed that the threshold of irrationality is a high one and that the greater the policy content of a decision, the more hesitant a court must be in holding a decision to be irrational.[65]

Procedural Impropriety

This ground of judicial review considers the procedures, and, consequentially the fairness of those procedures, followed by the decision-maker in arriving at the decision. De Smith, Woolf and Jowell state that the importance of procedural propriety is:[66]

“…to provide the opportunity for individuals to participate in decisions that affect them. Another is to promote the quality, accuracy and rationality of the decision-making process. Both concerns aim at enhancing the legitimacy of that process.�

Decision-makers are bound to ensure that their procedure of decision-making complies with the rules of natural justice. It is “a duty lying on every one who decides anything [to] act in good faith and fairly listen to both sides�.[67] This duty of fairness was described by Cooke J in Daganayasi v Minister of Immigration[68] as “legally enforceable elementary standards� that must be followed by the decision-maker.[69]

The two most basic and fundamental principles of natural justice are that the parties be given adequate notice and an opportunity to be heard,[70] and that the decision-maker be unbiased.[71] In Daganayasi, Cooke J emphasised that these requirements of natural justice may be applicable to a statutory power of decision-making in one of two ways:

either through “what is to be inferred or presumed in interpreting the Act�; or

by “judicial supplementation of the Act when this is necessary to achieve justice without frustrating the apparent purpose of the legislation�.

Before the exercise of power will be reviewable, the statutory scheme as a whole must be examined in order to see to what degree, if any, the legislation intended the principle of natural justice or fairness to apply.[72] The modern approach[73] in New Zealand was summarised in Fowler & Roderique v Attorney General,[74] where Somers J stated:

“If the exercise of the power is likely to affect the interests of an individual in a way that is significantly different from the way in which it is likely to affect the interests of the public generally, the person exercising the power will normally be expected to have regard to the interests of the individual before it is exercised.�

The availability of review of the exercise of power by a decision-maker for breach of natural justice was also commented on in Royal Australasian College of Surgeons v Phipps.[75] The Court of Appeal stated that the courts are willing to exercise the power, even although there may be no statutory power of decision or the power may in significant measure be contractual. The Court held the obligation of natural justice “is an area of broad principle, not precise rules, turning on the nature of the power being exercised and all the circumstances.�[76]

An affected party may have been given a legitimate expectation of consultation either by a promise or an established practice of consultation by the decision-maker.[77] The legitimate expectation must have some reasonable basis,[78] and cannot be founded on, for example, a misinterpretation of an assurance, undertaking, a course of dealing[79] or on the mere hope or unsubstantiated belief of the person asserting it.[80] Once the legitimate expectation has arisen, then the consultation must be undertaken by the decision-maker to the extent that the legitimate expectation demands in each case.[81]

The rule against bias is concerned with the impartiality of the decision-maker and with maintaining public confidence in the administration of justice. This is reflected in the often cited maxim: “[J]ustice should not only be done, but should manifestly and undoubtedly be seen to be done.�[82]

The test for determining whether bias arises in each particular case has been defined by Joseph as follows:[83]

“There are two types of bias: “presumptive� and “apparent�. Presumptive bias arises where a decision-maker has a direct pecuniary or personal interest in the outcome of the case; apparent bias where the decision-maker has some personal or professional relationship to a party or witness, or a prejudice against or preference towards a particular result, or a predisposition leading to a predetermination of the issue(s). The dividing line between permissible and impermissible partiality shifts with the context. The content of the bias rule is flexible, varying with the factual and legal circumstances of the case.�

In the case of presumptive bias, a pecuniary financial interest of the decision-maker will not be improper where the financial interest of the decision-maker is minor and “could not sensibly exert improper influence�.[84] Non-pecuniary presumptive bias was normally evidenced by a relationship of the decision-maker that engendered a manifest danger of actual bias, however, as Joseph recognises, the effect of the decision of the House of Lords in Ex p Pinochet (No 2)[85] may be that “any relationship a decision-maker has to a party to the case may trigger automatic disqualification�.[86]

The test of whether apparent bias exists was defined by the Court of Appeal in Auckland Casino Ltd v Casino Control Authority.[87] The Court rejected any previous distinction between “real likelihood� and “reasonable suspicion� and stated:[88]

If a reasonable person knowing all the material facts would not consider that there was a real danger of bias, it would seem strained to say that nevertheless he or she would reasonably suspect bias.�

Therefore, if, for example, a decision-maker has made prior statements that reveal prior judgment of or hostility to the issue, or favouritism towards any of the interested parties, then, on the facts in each case, it may be open to a court to find that the decision should be quashed on the grounds of bias.[89]

However, not every decision requires an impartial mind to be brought to bear on it. Sometimes, it will be apparent that Parliament intends decision-makers to act as representatives of a particular interest group, as was the case in NZI Financial Corporation Ltd v New Zealand Kiwifruit Authority.[90]

KEY THEMES IN JUDICIAL REVIEW IN NEW ZEALAND

Illegality

Review for error of law

As discussed above, traditionally a decision-maker would only be reviewable for error of law if he or she incorrectly interpreted the source of his or her jurisdictional power, or ignored it completely.

However, the decision in Anisminic v Foreign Compensation Commission[91] rendered obsolete this restrictive approach towards jurisdictional error. The Court extended the scope of “jurisdictional error� to include any material error made in the course of applying a statutory power.

Anisminic held that privative clauses (clauses that seek to oust the jurisdiction of the court to review) must be strictly construed and “if such a provision is reasonably capable of having two meanings, that meaning should be taken which preserves the ordinary jurisdiction of the Court.�[92] Lord Wilberforce stated further:[93]

“The question, what is the [decision-maker’s] proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability upon its decisions.�

The expanding scope of the courts’ jurisdiction and the “elasticity�[94] of the modern approach as to error of law was acknowledged in New Zealand in Bulk Gas Users Group v A-G.[95] Cooke J summarised the developing approach:[96]

“It is further clear that the Courts of general jurisdiction will be slow to conclude that power to decide a question of law conclusively has been conferred on a statutory authority or tribunal… . In Re Racal Communications Ltd [1981] AC 374, 382-383, Lord Diplock put it that there is a "presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined: and if there has been any doubt as to what that question is, this is a matter for courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity.�

In Peters v Davison,[97] the Court of Appeal affirmed that the effect of the decision in Anisminic[98] is in general to render redundant any distinction between jurisdictional and non-jurisdictional error of law. The Court, recognising that the general availability of error of law as a ground for review of the exercise of public power is well established in New Zealand,[99] stated that:[100]

“Error of law is a ground of review in and of itself; it is not necessary to show that the error was one that caused the tribunal or Court to go beyond its jurisdiction.�

It is therefore now only necessary to show that the decision-maker erred and that the relevant error of law is “one which is an error in the actual making of the decision which affected the decision itself.�[101]

Review for error of fact

The courts have traditionally claimed no jurisdiction to review for error of fact. It has always been thought that the decision-maker must exercise judgment itself as to the existence or non-existence of facts. The availability of review was summarised by Cooke J in Car Haulaways Ltd v Attorney-General:[102]

“Unless the errors of law . . . go to jurisdiction, they are not redressable … A fortiori, findings of fact on the very question which the tribunal is set up to decide, and conclusions based on an evaluation of the evidence bearing on such questions, would be immune [to review]…�.

However, just as the decision in Anisminic has expanded review for error of law substantially to include errors made in the course of the proceedings (as opposed to errors going to jurisdiction), so too has review of error of fact expanded. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council,[103] Lord Wilberforce said that the decision-maker could not act “upon an incorrect basis of fact�.[104] Similarly, Lord Diplock held that not only must the decision-maker ask the right question, he must be adequately informed so as to answer that question correctly.[105]

In New Zealand the expansion began with the dicta of Cooke J in Daganayasi:[106]

“The Minister has implied authority to delegate the function of making inquiries, but if as a result the Minister is lead into a mistake and a failure to take into account the true facts, it is not right that the appellant should suffer. On this view the decision is invalid on the ground of mistake as well as on the ground of procedural unfairness.�

Richmond P and Richardson J were not prepared to go so far and instead observed merely that the law on this matter was “far from settled�.[107] Cooke J further reaffirmed his view that mistake of fact was a separate ground of review in Bulk Gas Users Group Ltd. Likewise, in Fowler & Roderique Ltd[108] Casey J accepted factual error as a ground for review. In NZ Fishing Industry Association Inc v Minister of Agriculture and Fisheries,[109] the Court of Appeal was evenly split on the existence of review for error of fact. Cooke P, with whom Casey J concurred, referred to the judgment of Casey J in Fowler & Roderique and reaffirmed factual error as a ground of review:

“[T]o jeopardise validity on the ground of mistake of fact the fact must be an established one or an established and recognised opinion; and that it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each of which may reasonably be held.�

Richardson J, however, reaffirmed his position in Daganayasi and declined to express any view as to mistake of fact as a ground for granting relief in judicial review proceedings.[110]

Recently, in Lewis v Wilson & Horton Ltd,[111] the Court of Appeal held unanimously that the High Court is not permitted to reopen any determination of fact on an application for judicial review. The Court stated that the High Court could only intervene where the factual matter was a condition precedent to the exercise of power. In other words, an error as to “jurisdictional fact�, or an error of fact resulting in a decision that is unreasonable, is required.[112] Elias CJ, delivering the judgment of the Court, held:

“Whatever the scope of mistake of fact as a ground of judicial review (as to which see Daganayasi v Minister of Immigration [1980] 2 NZLR 130; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544), the additional facts put forward in the High Court do not establish reviewable error. The approach adopted in the High Court would have the effect of permitting any conclusion of fact to be reopened on application for judicial review. The supervisory jurisdiction does not go so far, except where the decision of fact is a condition precedent to the exercise of power or where the error of fact results in a decision which is unreasonable. In such cases, the decision-making process will have miscarried. That was not the case here, even accepting the Judge to have been under the wrong impression of the true facts. Given however the conclusions reached on the reasonableness of the decision, it is unnecessary to consider the point in more detail.�

While the Court of Appeal in Lewis may now have drawn the parameters of review for error of fact more narrowly than did Cooke J in New Zealand Fishing Industry or Casey J in Fowler & Roderique, the decision in Lewis demonstrates that mistake of fact can still provide a basis for judicial review in appropriate circumstances.

The circumstances now available for judicial review of error of fact include, at a minimum, those where the decision-maker has acted in the absence of evidence or material of probative value.[113] Similarly, if the mistake of fact is fundamental it will vitiate the basis upon which the decision has been made. The more orthodox approach to matters of fact is one of relevancy of considerations. The approach is described by Cooke P in New Zealand Fishing Industry:[114]

“I accept that the relevant considerations which the Minister was bound to take into account included such facts obviously material to the mandatory statutory considerations as were or ought to have been known to himself or the Ministry. That is to say, the duty to consider statutory criteria extends to facts so plainly relevant to those criteria that Parliament would have intended them to be taken into account and a reasonable Minister would not fail to do so. See CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183; Ashby v Minister of Immigration [1981] 1 NZLR 222, 225-226.�

Therefore, at the very least, a mistake of fact is likely to add great weight to a contention that the decision-maker has failed to take all relevant factors into account.

Irrationality

The two grounds of review to be considered under the head of irrationality are substantive unfairness and proportionality.

Substantive Unfairness

The availability of substantive unfairness as a stand-alone ground of review in New Zealand is not yet settled. The Court of Appeal affirmed that it was a ground of review in Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd,[115] where Cooke P stated that there was “no lack of authority that [substantive unfairness] is a legitimate ground of review, shading into but not identical with unreasonableness�.[116] And later:[117]

“One situation justifying intervention for unfairness might be where the procedure and the decision of an administrative body, although possibly just surviving challenge if viewed separately, were in combination so questionable as to impel the conclusion that, in the words of Lord Donaldson of Lymington MR in R v Panel on Take-overs and Mergers, ex parte Guinness plc [1990] 1 QB 146, 160, "something had gone wrong of a nature and degree that required the intervention of the court . . ." The merit of the substantive unfairness ground is that it allows a measure of flexibility enabling redress for misuses of administrative authority which might otherwise go unchecked.�

The other Judges exercised some caution in describing the ground. McKay J warned against the erosion of the ground into mere ‘unfairness’:[118]

“The authorities cited by the President amply demonstrate that unfairness can be a ground of judicial review, but it does not follow that anything that can be described as "unfair" will suffice. As Lord Templeman said in Re Preston [1985] AC 835 at p 864, in most cases in which review has been granted there has been some proven element of improper motive. At p 866 he points out that error of law was sufficient in HTV Ltd v Price Commission [1976] ICR 170, and at pp 866-867 that a breach of contract or breach of representation may fall within the ambit of "abuse of power" for which judicial review may be the appropriate remedy. While it may be appropriate to group such cases under the generic description of "unfairness", there is a danger that in doing so one may convey the impression that anything that is "unfair" will be sufficient.�

Fisher J gave the strongest indication that substantive unfairness should not be treated as a stand-alone ground of review, commenting that “it will continue to be necessary to identify a more specific and principled administrative law basis for intervention� in cases where substantive unfairness was pleaded.[119]

More recently, the Court of Appeal commented in Pharmaceutical Management Agency Ltd (Pharmac) v Roussel Uclaf Australia Pty Ltd[120] that the area required further consideration and would “no doubt be developed on a case by case basis.�

Proportionality

The concept of proportionality as a ground of review was raised by Diplock LJ in CCSU.[121] The concept is based in international and Napoleonic law, echoed in the jurisprudence of the European Court of Justice and the European Court of Human Rights.[122] De Smith, Woolf & Jowell refer to a resolution of the Committee of Ministers of the Council of Europe, defining proportionality as a requirement on an administrative decision making body to:[123]

“maintain a proper balance between any adverse effects which its decision may have on the rights, liberties, or interests of persons and the purpose which it pursues.�

How the doctrine of proportionality might apply to judicial review in New Zealand in the future is not yet clear. Thomas J commented obiter on the issue in Waitakere City Council v Lovelock:[124]

“The close affinity of proportionality to the concept of unreasonableness is plain to see. Proportionality recognises that an administrative discretionary power should not be exercised in a manner which causes injury to individuals out of proportion to the perceived advantage to the public. But this question can only be satisfactorily answered by assessing the reasonableness of the relationship between the objective which the authority seeks to achieve and the means it employs to achieve that end. See R v Secretary of State of the Home Department, ex parte Brind [1991] 1 AC 696.

Whether proportionality will be classified as a separate ground of review or viewed as an aspect of Wednesbury unreasonableness remains uncertain. In Ex parte Brind the concept was seen as having a significant substantive element and, while rejected in that case, its future application arguably was not ruled out. Lord Diplock noted at p 410 that the ground was well established in several fellow European Community countries and further development on a case-by-case basis could lead to the adoption of the concept in English law.�

However, the status of the doctrine of proportionality remains unclear and, in Isaac v Minister of Consumer Affairs,[125] Tipping J rejected the notion of proportionality as an independent ground of review, considering that it was merely a part of reasonableness.

Joseph[126] has suggested that proportionality, along with the duty to act consistently when exercising decision-making powers, could form part of the basis of what he calls “constitutional review�, a more substance-based review procedure based around New Zealand’s constitutional legislation and documents such as the New Zealand Bill of Rights Act 1990 and the Treaty of Waitangi. However, such a basis for review has not yet been considered by a New Zealand court.

Procedural Impropriety

In Breen v Amalgamated Engineering Union, Lord Denning stated:[127]

"It is now well settled that a statutory body, which is entrusted by statute with a discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will […]. Even though its functions are not judicial or quasi-judicial, but only administrative, still it must act fairly"

This statement defines the nature of procedural fairness and it is now accepted that procedural impropriety and the rules of natural justice “mean no more than the duty to act fairly…�[128]

As noted above, an affected party may have been given a legitimate expectation of consultation either by an express promise or representation,[129] or by a representation implied from an established practice of consultation by the decision-maker.[130] Accordingly, it is not necessary that the representation be made directly to the affected party; it is sufficient that the affected party is a member of a class of persons subject who are the subject of the representation.

The first issue arises, however, over whether the affected party must actually know of the promise or representation and establish reliance upon that it. The courts have been split in their approach to this issue. In Minister for Immigration and Ethnic Affairs v Teoh,[131] the High Court of Australia adopted an objective approach and held that “it is not necessary that a person seeking to set up such a legitimate expectation should be aware of…or personally entertain the expectation; it is enough that the expectation is reasonable…�[132] However, in Lawson, Williams J took the opposite approach and emphasised the applicant’s lack of knowledge and reliance upon the statements said to establish the legitimate expectation.[133]

Secondly, it is presently unclear whether the legitimate expectation is of procedural fairness or that a benefit of a substantive nature will be granted. In Lawson, the Court held:[134]

“… the most that this Court can review is the "quality of an administrative decision as well as the procedure" (Thames Valley at p 652) in order to see whether the company has acted fairly. The Court cannot review the substance or merits of the decision.�

However, in New Zealand Maori Council v Attorney-General, the Privy Council endorsed the legal significance of a substantive expectation[135] and, although noting that it may not be directly enforceable in law, stated: [136]

"The assurance once given creates the expectation, or to use the current parlance the 'legitimate expectation', that the Crown would act in accordance with the assurance, and if, for no satisfactory reason, the Crown should fail to comply with it, the failure could give rise to a successful challenge on an application for judicial review."

In any event, the continued usefulness of the legitimate expectation doctrine is open to question. Joseph notes that:[137]

“A legitimate expectation does not materially add to substantive unfairness as a ground of review; to renege on one’s undertaking or promise is not ‘fair play in action’ (Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 140 per Cooke J (CA)).�

The possibility that legitimate expectation may be usurped by substantive unfairness as a ground of review has received judicial support in New Zealand. In Northern Roller Milling Co Ltd v Commerce Commission,[138] Gallen J appeared to accept that legitimate expectation itself as a concept is a shorthand term for an expectation that decision making will be carried out in accordance with those principles which the law embodies and “that the two concepts of legitimate expectation and substantive fairness are mutually reinforced.�[139]

Finally, it is important to distinguish between the concept of legitimate expectation in and the status of mandatory relevant considerations. In Teoh,[140] the High Court of Australia recognised that “ratification of a[n international] convention is a positive statement by the executive … to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention�.[141] The Convention gave rise to a legitimate expectation that the decision-maker would act in conformity with it. Thus, if the decision-maker proposes to make a decision inconsistent with the legitimate expectation, procedural fairness requires that the person affected should be given notice and an adequate opportunity to be heard.

In New Zealand, the courts have been more circumspect in usurping the role of the decision-maker. In Tavita v Minister of Immigration,[142] Cooke P left open the question of whether a decision-maker’s powers could be subject to limits read in by reference to international treaty obligations. However, although the law has remained somewhat undeveloped,[143] the courts have nevertheless retreated from the position suggested in Tavitia and have instead re-emphasised the importance of leaving policy making to New Zealand's elected representatives and their delegates in the executive; including also New Zealand's international obligations. This is reflected in this statement by Greig J in Patel v Minister of Immigration:[144]

“They [Tavita and Puli'uvea's case] are couched in broad terms and in any event there must be a balancing between what may be seen in the particular case as international obligations and those applying internally in the administration of immigration policies and the statute.�

In contrast to the Australian approach in Teoh, in New Zealand provided the decision-maker weighs all matters that may materially affect the outcome[145] and takes into account the whole of the circumstances,[146] then the decision will not be disturbed for error of law. That is, there is no legitimate expectation that the decision-maker will act in conformity with an international instrument.

This more traditional approach is echoed in the decision in Patel v Chief Executive of the Department of Labour[147] where Baragwanath J, defining the role of the court, held that “in certain cases the Court's role is to form its own view on matters of jurisdictional fact; in others it will apply Wednesbury principles�.[148] This means that the focus of the court is not whether the substance of the decision accords with the international obligation (per the approach in Teoh), but rather whether the decision was unreasonable or that it was one which failed to take account of all the relevant circumstances, including the international obligations.[149]

Standing

The expanding scope of the courts’ jurisdiction concurrent with the increasing scope of governmental powers has been further echoed in the courts’ approach to the rules of standing. Formerly, the rules of standing imposed complex and restrictive requirements upon a person seeking an administrative law remedy.[150] However, the courts now take a more relaxed approach and focus increasingly on the substantive merits of the application for review.

The current approach has been discussed recently by the Court of Appeal in Peters v Davidson.[151] In that case, the Court rejected the proposition that “the Court can make a declaration only if there are rights and duties of, and owed between, relevant parties.�[152] Rather, the Court emphasised the importance of judicial review and held that “the Courts as a matter of constitutional principle have the power to see that public authorities do not make material errors of law�.[153]

Judicial Review In Specialist Jurisdictions

Commerce Commission

Judicial review has not featured prominently in actions under the Commerce Act. However, in Commerce Commission v Telecom Corporation of New Zealand Limited,[154] the Court of Appeal upheld a decision in the High Court that by instituting an inquiry into competition in the telecommunications industry, the Commission had acted outside its authority.

Recently, the High Court has found that there are some powers of the Commission under the Commerce Act, for example the discretion to decline to consider an application for clearance or authorisation, which do not attract a right of appeal under the Act. In those cases, judicial review is appropriate.[155]

Resource Management Act 1991

Section 23 of Resource Management Act 1991 (“the RMA�) provides that compliance with that Act “does not remove the need to comply with all other applicable Acts, regulations, bylaws and rules of law.� This means that decisions under the RMA may be susceptible to judicial review. However, that reviewability is subject to s296, which provides that where there is a right to refer any matter for inquiry to the Environment Court or to appeal to the Court against a decision of a local authority, consent authority or any person under the RMA or under any other Act or regulation, no application for judicial review may be made unless the right of referral or appeal has been exercised.

Applications for judicial review have been of particular use in challenging decisions under s94 RMA by an authority that an application for resource consent under the RMA need not be notified. Judicial review under this section has been permitted as there is no general right of appeal.[156]

Standing for judicial review under s94 attaches to “anyone whose ability to participate in the resource planning processes was taken away by the failure of a consenting authority to notify the application�[157], although Elias J notes that a similar test was rejected on different facts by Blanchard J in Quarantine Waste NZ Ltd v Murray & Ors.[158]

Comments by the Court of Appeal in Bayley & Ors v Manukau City Council & Anor[159] would appear to support Elias J’s conclusion, although it should be noted that in that case the Court was not concerned with standing:[160]

“There is a policy evident upon a reading of Part VI of the Act, dealing with the grant of resource consents, that the process is to be public and participatory. Section 94 spells out exceptions which are carefully described circumstances in which a consent authority may dispense with notification. In the exercise of the dispensing power and in the interpretation of the section, however, the general policy must be observed. Care should be taken by consent authorities before they remove a participatory right of persons who may by reason of proximity or otherwise assert an interest in the effects of the activity proposed by an applicant on the environment generally or on themselves in particular.�

The approach to judicial review under the RMA was explained by Blanchard J in Quaratine Waste NZ Ltd v Waste Resources Ltd:[161]

“Upon an application for judicial review the Court does not substitute its own decision for that of the consent authority, it merely determines whether proper procedures were followed, whether all relevant and no irrelevant considerations were taken into account and whether a decision was reasonably made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority not for the Court to determine.�

This passage has received considerable support in the High Court,[162] and Blanchard J made an almost identical statement of the principles again when delivering the Court of Appeal’s judgment in Pring v Wanganui District Council & Anor.[163]

Employment Relations Act 2000

Under the Employment Relations Act 2000 (“the ERA�), the High Court does not have jurisdiction to hear applications for review arising out of powers exercised under that Act or specific parts of the State Sector Act 1988. All applications for review against decisions by the Employment Relations Authority, any employer, any union, the Minister or Department of Labour, or any person must be made to the Employment Court,[164] and that Court has the “full and exclusive jurisdiction� to determine the application.[165] Where there is a right of appeal in respect of any matter, no application for review may be made unless and until that right has been exercised.[166] Appeals against orders made in respect of applications under s194 are to the Court of Appeal.[167] If a party wishes to have reviewed any proceedings before the Employment Court itself, the application must be made to the Court of Appeal.[168]

By and large, the Act re-enacts the relevant provisions of the Employment Contracts Act 1991 (“the ECA�) in this regard. One exception is the restriction in section 194 of ERA on the parts of the State Sector Act under which decisions may be reviewed in the Employment Court. The ECA did not contain such a restriction. According to Brookers Employment Law, “the new restrictions on the scope of judicial review do not achieve a consistent delineation between employment-related and non-employment-related decisions under the State Sector Act�.[169] In Rankin v A-G in respect of the State Services Commissioner[170] Goddard CJ commented that “[t]his amendment of quite a radical nature is something of a mystery�.[171]

Another difference is the availability of judicial review in cases of dismissal. Under the ECA, dismissal could be, and was, challenged by review. However, section 113(1) of ERA provides that dismissal may only be challenged before the Employment Relations Authority under the personal grievance provisions of the ERA.

The legislation is very recent and as yet these provisions have not been tested. However, given the substantive re-enactment of the ECA, principles developed in the Courts under that Act are still relevant. Under the ECA, the following approaches by the Employment Court to the exercise of the judicial review power were observed:

As in general cases of judicial review, review in the Employment Court is concerned with the regularity and fairness of the decision-making process, not the outcome of the decision itself.[172]

The application of natural justice is well established among the implied and express duties in an employment contract (agreement). Where a current employee applies for another position with the same employer, the employer may owe that employee some additional natural justice obligations.[173]

The principles of fairness apply to action taken under most, if not all, employment contracts. Very clear statutory or contractual language would be necessary to exclude that element.[174]

The test of unreasonableness in Wednesbury,[175] requiring a “high� threshold, applies equally in an employment context.[176] However, the Employment Court has suggested that the threshold may be subject to modification in the case of public service employment.[177]

Judicial Review and Accident Compensation Law

The Accident Insurance Act 1998 and its predecessor legislation, the Accident Rehabilitation and Compensation Insurance Act 1992 contain a comprehensive system of appeals, including to the High Court and Court of Appeal of points of law. However, judicial review is not completely excluded. In King v ACC,[178] Barker J found that the failure of the Accident Compensation Corporation to exercise a power of decision to assess an applicant for permanent incapacity was reviewable because by refusing to make an assessment the Corporation had denied the applicant the chance of having the matter debated on the merits and (presumably) subjected to the normal appeals process.

Haines House Haulage Co Ltd v ACC[179] and Works Civil Construction Ltd v ACC & Anor[180] involved judicial review of the lawfulness of regulations[181] promulgated under the Accident Rehabilitation and Compensation Act 1992 and of decisions made under those regulations. Works Civil Construction was heard after Haines House Haulage was heard, but before the judgment in that case was delivered. Both decisions found that the regulations were not ultra vires.

In Works Civil Construction, Goddard J found that judicial review of a decision made by the Corporation under the Regulations to increase the applicant’s experience rating was unavailable because the applicant had not chosen to exercise its rights of appeal and review under the Act. Section 89(7) of the Act provided that a person who has a right of appeal or review under the Act had no other remedy, and the Judge considered that to attempt to bring judicial review proceedings without first exercising the right of appeal or review was an attempt to circumvent the specific scheme of the Act.

However, in Haines House Haulage, Paterson J found that while there was a right of review or appeal against the Corporation, there was no equivalent right against decisions made by the Minister of Accident Compensation. The decision of which review was sought in that case was one made by the Minister, and so judicial review was available.

Accident Compensation law has recently undergone legislative change again, but the privative clauses contained in the repealed Accident Insurance and Accident Rehabilitation and Compensation Insurance Acts have not been altered to any great extent.[182]

AVOIDING JUDICIAL REVIEW CHECKLIST– DOING YOUR BEST TO MAKE YOUR PROCEDURES “JUDGE-PROOF�

Have you identified the specific power under which you are acting? Is there an Act or Regulations (or both)? Are there departmental guidelines, or a policy document, that may have created legitimate expectations or which should otherwise be had regard to?
   

G

Are you the person with the legal power to make the decision? If not, has the power been properly delegated? Is it clear that any discretion is being exercised independently and on an unfettered basis?
   

G

Are you satisfied that no question of bias arises? Have you already made up your mind and do you merely intend to structure the considerations to support your decision?
   

G

Have you identified person or persons prejudicially affected by the proposed decision/action (if any)?
   

G

If so, have they been fully informed of the nature of the proposal and given an opportunity to make representations about it (unless the legislation exempts you)?
   

G

Has proper consideration been given to their representations?
   

G

Is this apparent from the decision and its supporting paperwork (see note 3 above)?
   

G

If affected persons have not been fully consulted, have you taken legal advice on this point?
   

G

Have you checked that your facts are accurate? If there is something you are not sure about, do not make assumptions or postpone obtaining a report on the issue unless, or until, someone challenges it (usually after the decision is made). It is difficult and undesirable to backtrack;
   

G

Are you satisfied that the purpose you are acting for is authorised by the legislation?
   

G

Have you taken into account all relevant matters, including those specified in the legislation and those matters that seem to you to be obviously relevant, although not necessarily specified?
   

G

Are these apparent from the decision or its supporting documentation(see note 3 above)?
   

G

Have you ensured that none of the factors you propose to take into account are improper or irrelevant? Step back and think about what a reasonably well-informed objective member of the public would think about you taking such considerations into account. Are you only using those considerations to justify a decision you have already made because the proper relevant considerations do not support your decision?
   

G

Are you being consistent with previous practice and/or expressed policy or representations made?
   

G

If not, have you taken legal advice on this point?
   

G

Have you considered the particular merits of the case and not simply applied a predetermined policy?
   

G

Is this apparent from the decision or its supporting paperwork?
   

G

Have you clearly set out all the reasons for you recommendation or decision? You must do this in the first instance: do not wait until someone challenges your decision;
   

G

Does your decision unreasonably affect the rights, liberties, or interests of interested persons? If so, is this injury out of proportion to the perceived advantage to the public? Can you fulfil your decision-making obligations in another way, so to minimise injury to affected persons?
   

G

Are you satisfied that, from an objective standpoint, all interested persons have been treated fairly and the decision is not unreasonable?
   

G

[1] LLB(Hons) VUW, 1989; MJur(Dist) Auck, 1994; Crown Counsel, Crown Law Office, 1994-8; Partner, MinterEllisonRuddWatts. The extensive assistance of James Neumann (LLB(Hons)(Canterbury)), Solicitor, MinterEllisonRuddWatts, in the writing of this paper, is gratefully acknowledged.

[2] In New Zealand, the sovereign legal power lies in the Parliament of New Zealand, which consists of the Sovereign in right of New Zealand and the House of Representatives: Section 14(1) of the Constitution Act 1986.

[3] This, despite now well-known dicta of Cooke J (as he then was) in cases such as Taylor v NZ Poultry Board [1984] 1 NZLR 394, 398 (CA); L v M [1979] 2 NZLR 519, 527 (CA); Brader v Ministry of Transport [1981] 1 NZLR 73, 78 (CA); NZ Drivers’ Assn v NZ Road Carriers [1982] 1 NZLR 374, 390 (CA) (where McMullin and Ongley JJ concurred in the relevant observations); Fraser v State Services Commission [1984] 1 NZLR 116, 121 (CA).

[4] Marbury v Madison 1 Cranch 137; 2 L Ed 60 (1803)

[5] R v Drybones [1970] SCR 282; 9 DLR (3d) 473 (SCC); Hunter et al v Southam Inc (1984) 9 CRR 355; [1984] 2 SCR 145 (SCC); Ford v Quebec (Attorney-General) [1988] 2 SCR 712; 54 DLR (4th) 577; Allan Singer Ltd v Quebec (Procureur Général) [1988] 2 SCR 790; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; Cole v Whitfield (1988) 165 CLR 360.

[6] R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (HL); see also R v Secretary of State for the Home Department, ex parte Leech (No.2) [1994] QB 198.

[7] R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603 (ECJ & HL)

[8] (1765) 19 State Tr 1029

[9] (1810) 12 East 526; 104 ER 206

[10] Vol.2 of Tracts published by Mr Hargrave, part 2, chapter 6, p 77

[11](1810) East 526 at 530; 104 ER 206, 208

[12] Supreme Court Ordinance 1840, Sess II, No.1, sections 2-5

[13] See Paterson, An Introduction to Administrative Law in New Zealand (1967) at p 1

[14] [1899] 2 Ch 608, 614-615

[15] Dunedin City and Suburban Tramway Company v Ross (1895) 13 NZLR 366; Point of Ayr Colleries Limited v Lloyd-George [1943] 2 All ER 546

[16] Kruse v Johnson [1898] 2 QB 91, 99

[17] Hall & Co Limited v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240

[18] Fawcett Properties Limited v Buckingham County Council [1961] AC 636; Hall & Co Limited v Shoreham-by-Sea Urban District Council, ibid.

[19] Paterson, An Introduction to Administrative Law in New Zealand (1967) at p 8-9

[20] Paterson refers to a number of cases, including Grater v Montagu (1904) 23 NZLR 904 and Thompson v Wellington City Corporation [1957] NZLR 84

[21] The Queen v Symonds (1847) NZPCC 387

[22] Godkin v Newman [1928] NZLR 593

[23] Jensen v Wellington Woollen Manufacturing Co Ltd [1942] NZLR 394

[24] [1968] AC 997, 1060

[25] [1925] AC 578, 606-607 per Sumner LJ

[26] Ridge v Baldwin [1964] AC 40, 72 per Lord Reid

[27] Breen v Amalgamated Engineering [1971] 2 QB 175, 189

[28] R v Inland Revenue Commissioners, ex parte National Federation of the Self-Employed and Small Businesses Ltd [1982] AC 617, 641

[29] Budget Rent A Car Ltd v Auckland Regional Authority [1985] 2 NZLR 414, 418

[30] See Roberto Unger, Law in Modern Society (New York, 1976); and “The Critical Legal Studies Movement�, 96 Harvard L. Rev. 563-675 (1983); Morton Horwitz, “The Rule of Law; An Unqualified Human Good?�, 86 Yale L.J. 561 (1977) who argue that the rule of law, understood as a rule of judicial fidelity to law, imposes obligations of neutral apolitical impartiality and consistency on judges that are in fact impossible to meet, and that the distinction between law and politics which it is accordingly intended to police, is incoherent and should accordingly be abandoned.

[31] The Department for Court does not keep statistics noting the types of cases before the courts. However, LINX searches for "judicial review" and the year 1985-2000 (in five year intervals) reveals the trend of increasing judicial review cases before the courts: 1985 – 24; 1990 – 36; 1995 – 57; 2000 – 92. Searches of BRIEFCASE reveal a similar trend: 1990 – 38; 1995 – 48; 2000 – 104.

[32] [1985] AC 374, 408-409

[33] For the express adoption of this approach in New Zealand, see Burt v Governor-General [1992] 3 NZLR 672 (CA)

[34] Rowling v Takaro Properties Ltd [1975] 2 NZLR 537 (CA); Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA).

[35] Patel v Chief Executive of the Dept of Labour [1997] 1 NZLR 102.

[36] Mackenzie District Council v Electricity Corp. of NZ [1992] 3 NZLR 41 (CA).

[37] See, in respect of unincorporated bodies: Finnigan v NZ Rugby Football Union Inc [1985] 2 NZLR 159 (CA).

[38] Electoral Commission v Cameron [1997] 2 NZLR 421.

[39] Re Erebus Royal Commission; Air NZ Ltd v Mahon (No 2) [1981] 1 NZLR 618 (CA); [1983] NZLR 662 (PC).

[40] Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 at p 11 per Henry, Keith, McGechan JJ (CA). See also R v Panel on Take-overs and Mergers, ex parte Guinness plc [1990] 1 QB 146, 159 – 160; Ridge v Baldwin [1964] AC 40 at p 70 – 71.

Note the discussion below on the development of review of privatised trading entities that control significant public services.

[41] Council for the Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 418 per Lord Roskill

[42] De Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) para 6-031

[43] See questions of “high policy� (identified by Taylor LJ in R v Secretary of State for the Home Department ex p. Everett [1989] QB 811 – such as making treaties, dissolving Parliament, mobilising the armed forces) and questions of a lower order but involving “competing policy considerations�, which Lord Diplock in the GCHQ case considered to involve “a balancing exercise which judges by their upbringing and their experience are ill-qualified to perform�. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 411.

[44] See Lord Bridge in R v Secretary of State for the Environment, ex p Hammersmith and Fulham LBC [1991] 1 AC 521, 593, on the need for an “objective criterion� in order for a decision to be amenable to judicial review.

[45] Supra n.42 at para 6-034

[46] (Court of Appeal, Wellington, CA 289/01, 25 February 2002)

[47] Ibid at para 27

[48] Ibid at para 28

[49] C.C.S.U. v Minister for the Civil Service [1985] AC 374

[50] R v Secretary of State for the Environment, ex p. Nottinghamshire CC [1986] A.C. 240, 249 per Lord Scarman.

[51] Sir Robin Cooke, “Third Thoughts on Administrative Law� [1979] NZ Recent Law 218 at p 225

[52] Supra n.49 at p 950

[53] See, Padfield v. Minister of Agriculture [1968] 1 All ER 694, 717 per Lord Upjohn and Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 KB 223, 228 per Lord Greene.

[54] See the discussion in De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th edn) at para 6-061 – 6-062 and Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 KB 223, 228 per Lord Greene.

[55] [1991] 2 NZLR 129

[56] CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 182-183 per Cooke J.

[57] New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 552 (CA) (per Cooke P).

[58] Supra n.42 at para 6-086.

[59] Also referred to (inconsistently) as unreasonableness or abuse of power, see De Smith, Woolf and Jowell at para 13-001.

[60] [1948] KB 223

[61] Ibid at p 229-230.

[62] [1996] 2 NZLR 537, 545

[63] See, De Smith, Woolf and Jowell, supra n.42 at para 13-086.

[64] [1996] 1 All ER 257.

[65] For a discussion of the rule of law and the function of the courts in upholding it, see Elias, “’Hard Look’ and the Judicial Function� (1996) 4:2 Waikato Law Review 1-23.

[66] Supra n.42 at para 7-001

[67] Board of Education v Rice [1911] AC 179 at p 182 per Lord Loreburn (HL), quoted in Joseph, Constitutional and Administrative Law in New Zealand (2nd ed) at para 23.1. The duty to listen fairly to both sides includes the requirement to disclose all relevant material to interested parties: Daganayasi v Minister of Immigration [1980] 2 NZLR, 130.

[68] Ibid at 141

[69] See also Re Erebus Royal Commission [1993] 1 NZLR 662 (PC) which held that a party must be warned and given an opportunity to respond before any finding that impugns the reputation, credibility or livelihood of the affected party is made.

[70] Often expressed as the principle of audi alteram partem.

[71] The principle of nemo judex in causa sua – literally, no man a judge in his own cause.

[72] Refer CREEDNZ, supra n.56, at p 179 per Cooke J and at p 186-187 per Richardson J.

[73] Compare the restricted approach of R v Electricity Commissioners; Ex p London Electricity Joint Committee (1920) Ltd [1924] 1 KB 171 (CA) with the modern purposive approach of Ridge v Baldwin [1964] AC 40 (HL).

[74] [1987] 2 NZLR 56, 74

[75] [1999] 3 NZLR 1, 16

[76] Ibid

[77] See: Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 (CA) and more recently Te Heu Heu v A-G [1999] 1 NZLR 98.

[78] A-G (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 (PC)

[79] Lawson v Housing NZ [1997] 2 NZLR 474 at p 489-491.

[80] Te Heu Heu v A-G supra n.77. See, Joseph, at para 23.2

[81] Te Heu Heu v A-G supra n.77

[82] R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256, at p 256, quoted in Joseph, at para 23.5.1.

[83] Joseph, at para 23.5.1.

[84] Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 at p 148 per Cooke P.

[85] R v Box Street Metropolitan Stipendiary Magistrate; Ex p Pinochet (No 2) [2000] 1 AC 119 (HL)

[86] Joseph, Constitutional and Administrative Law in New Zealand (2nd edn) at para 23.5.2.

[87] Supra n.84

[88] Ibid at p 149 per Cooke P

[89] See for example Isitt v Quill (1893) 11 NZLR 224 (CA)

[90] [1986] 1 NZLR 159 per Henry J (HC)

[91] [1969] 2 AC 147 (HL).

[92] Ibid at p 169-170 per Lord Reid, at p 199-200 per Lord Pearce, quoted in Joseph, at para 20.7.1.

[93] Ibid at p 207

[94] See, Joseph at para 20.7.1.

[95] [1983] NZLR 129 (CA).

[96] Ibid at p 133

[97] [1999] 2 NZLR 164 (CA)

[98] Supra n.91: as interpreted in O’Reilly v Mackman [1983] 2 AC 237, 278, and in R v Lord President of the Privy Council, ex parte Page [1993] AC 682, 701.

[99] Bulk Gas Users Group v Attorney-General [1983] NZLR 129 and Hawkins v Minister of Justice [1991] 2 NZLR 530

[100] Supra n.97 at p 181 per Richardson P, Henry and Keith JJ (CA)

[101] Ibid at p 202 per Thomas J, adopting the decision of Lord Browne-Wilkinson in R v Lord President of the Privy Council, ex parte Page [1993] AC 682, 701.

[102] (Supreme Court, Auckland, A 8/73, 8 August 1973), quoted in Attorney-General v Car Haulaways (NZ) Ltd [1974] 2 NZLR 331, 333-334 per Haslam J (CA)

[103] [1977] AC 1014 (HL)

[104] Ibid at 1047

[105] Ibid at 1065

[106] Supra n.67 at p 149 (CA)

[107] Ibid at 132 per Richmond P and Richardson J

[108] Supra n.74

[109] Supra n.57

[110] Supra n.67

[111] [2000] 3 NZLR 546

[112] Ibid at 568

[113] Re Erebus Royal Commission; Air New Zealand v Mahon [1983] NZLR 662 (PC)

[114] Supra n.57 at 552

[115] [1994] 2 NZLR 641

[116] Ibid, at 652

[117] Ibid, at 652-653

[118] Ibid, at 654

[119] Ibid

[120] [1998] NZAR 59, 66

[121] Supra n.41 at 410

[122] De Smith, Woolf & Jowell, at p 593

[123] Ibid, at p 594

[124] [1997] 2 NZLR 385, 407

[125] [1990] 2 NZLR 606, 636

[126] Joseph, at p778

[127] [1971] 1 All ER 1148, 1153-1154; see Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 5 per Richmond P (CA)

[128] O’Reilly v Mackman [1983] 2 AC 237, 275 per Lord Diplock; Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA).

[129] See Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Liverpool Taxi [1972] 2 QB 299; R v Secretary of State for the Home Department, ex p Asif Mahmood Khan [1984] 1 WLR 1337.

[130] See: Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 (CA); R v Secretary of State for the Home Department, ex p. Ruddock [1987] 1 WLR 1482; see more recently, Te Heu Heu v A-G [1999] 1 NZLR 98.

[131] (1995) 183 CLR 273 (per Mason CJ, Deane, Toohey, Gaudron JJ, McHugh J dissenting)

[132] Ibid at p 291 (per Mason CJ and Deane J)

[133] Supra n.79 at p 489. See, De Smith, Woolf and Jowell at para 8-058 – 8-061 who suggest that it should not be necessary that the applicant be aware of the representation, nor that the applicant demonstrate reliance on the representation.

[134] Ibid at p 491

[135] See also R v Secretary of State for the Home Department, ex parte Ruddock [1987] 2 All ER 518, and R v Secretary of State for Transport, ex parte Richmond upon Thames London Borough Council [1994] 1 All ER 577.

[136] [1994] 1 NZLR 513, 525 (PC); see also New Zealand Maori Council v A-G [1996] 3 NZLR 140, 183 per Thomas J (CA)

[137] Constitutional and Administrative Law in New Zealand (2nd edn) at para 23.2.

[138] [1994] 2 NZLR 747

[139] Ibid at p 750, quoting Taylor on Judicial Review (1991) in para 13.10.

[140] Supra n.131

[141] Ibid at p 291 per Mason CJ and Deane J (HCA).

[142] [1994] 2 NZLR 257, 266.

[143] See Puli'uvea v Removal Review Authority [1996] 3 NZLR 543 (CA); Bracanov v Moss [1996] 1 NZLR 445; Elika v Minister of Immigration [1996] 1 NZLR 741; Ankers v Attorney-General [1995] 2 NZLR 595; Patel v Minister of Immigration [1997] 1 NZLR 252; Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102.

[144] [1997] 1 NZLR 252, 256 (HC)

[145] Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 147 (CA)

[146] A-G v New Zealand Maori Council [1991] NZLR 129 (CA)

[147] [1997] 1 NZLR 102 (HC)

[148] Ibid at p 110. See R v Secretary of State for the Home Department, ex parte Onibiyo [1996] 2 All ER 901, 912; Puli'uvea v Removal Review Authority, supra n.143

[149] Puli'uvea v Removal Review Authority, ibid, and Tavita v Minister of Immigration, supra n.142

[150] For a discussion of the old rules of standing in New Zealand, see Joseph at para 25.7.2

[151] Supra n.97

[152] Ibid at 188

[153] Ibid. See also, Fitzgerald v Muldoon [1976] 2 NZLR 615; Environmental Defence Soc Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216 (CA); Finnigan v NZ Rugby Football Union Inc [1985] 2 NZLR 159 (CA); Budget Rent A Car v Auckland Regional Authority [1985] 2 NZLR 414 (CA); Quaratine Waste NZ Ltd v Waste Resources Ltd [1994] NZRMA 529.

[154] [1994] 2 NZLR 421 (CA)

[155] New Zealand Bus Limited v Commerce Commission (HC Wellington CP24/02, 27 February 2002, Wild J)

[156] Aro Valley Community Council v Wellington CC (1992) 1 NZRMA 221

[157] Murray v Whakatane District Council [1999] 3 NZLR 276, 308. The decision was affirmed on appeal in Waiotahi Contractors Ltd v Murray & Ors [1999] 3 NZLR 276 (CA decision at 325)

[158] [1994] NZRMA 529

[159] [1999] 1 NZLR 568

[160] Ibid, at 575: That passage was affirmed by the Court of Appeal in Body Corporate 97010 v Auckland City Council & Anor [2000] 3 NZLR 513, 517-518

[161] [1994] NZRMA 529, 540

[162] Wilson Parking New Zealand (1992) Limited v Auckland City Council & Anor [2001] NZRMA 364, 369; Barrett v Wellington City Council & Ors [2000] NZRMA 481, at para 62; Lowe & Ors v Dunedin City Council & Anor [1999] NZRMA 280, 291

[163] [1999] NZRMA 519, 523

[164] Employment Relations Act 2000, s194(1)

[165] Ibid, s194(2)

[166] Ibid, s194(3)

[167] Ibid, s218

[168] Ibid, s213

[169] Brooker’s Employment Law (looseleaf) para ER194.06(2)

[170] (2001) 6 NZELC 98,645

[171] Ibid at para [32]

[172] Bunce v Fogelberg, Vice-Chancellor, University of Otago [2000] 1 ERNZ 1, 20

[173] Haddon v Victoria University of Wellington [1995] 1 ERNZ 375, 391

[174] Marlborough Harbour Board v Goulden [1985] 2 NZLR 378, 383 (per CookeJ)

[175] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, adopted in Wellington City Council v Woolworths NZ Ltd (No.2) [1996] 2 NZLR 537 (CA)

[176] Commissioner of Police v NZ Police Association [1999] 2 NZLR 741; [1999] 1 ERNZ 624 (CA)

[177] Rennie v Attorney-General [1998] 1 ERNZ 58, 70

[178] [1994] NZAR 159

[179] [2001] NZAR 769

[180] [2001] 1 NZLR 721

[181] The Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993

[182] See Part 5 of the Injury Prevention, Rehabilitation, and Compensation Act 2001