Judicial Review

Front 1

What is the traditional distinction between appeal and review jurisdiction?

Back 1

Chief Constable of the North Wales Police v Evans - This case is cited saying appeal is about the correctness of a decision of a lower court, while review is about the decision making process (not to question the Executive). An appeal decision substitutes the court's own while review remits is back to the decision maker, not concerned with merits.

Review is inherent to the evolution of the courts. Appeal is a statutory power.

Fraser v State Services Commission - A public servant was dismissed for disciplinary offences owing to an undisclosed report. The court asked: has a fair procedure been followed?

1. Not disclosing the report prior to the hearing was improper and ambushing.

2. Decision makers are under a general duty of disclosure.

--> The decision was legitimate, but procedure was not.

Front 2

Is the traditional distinction between appeal and review a helpful jurisdiction?

Back 2

Brannigan v Davison - This case called it 'empty formalism'.

Philip Joseph - He admitted it had some utility as a self-disciplinary check on jursidiction and reminder of constitutional and democratic limits. However, it is unhelpful in unreasonableness which inherently looks into whether parliament would authorise such a decision in procedural impropriety. The distinction does not:

1. Distinguish what is justiciable and what is not (Kurtis) in relation to policy.

2. Fix the scope of discretionary power when interpreting statutes, especially on grounds of illegality.

3. Propose the intensity of review for human rights, immigrants, corruption and fraud.

4. Fix the scope of judicial deference. Human rights violations the courts will more freely intervene.

5. Fix the scope of judicial remedy for illegality, unreasonableness, or natural justice abuses.

--> This collective ambiguity means courts will intervene incredibly subjectively in an inherently discretionary manner.

Front 3

Does this distinction actually work? And what is the Wednesday Unreasonableness principle?

Back 3

Shaw v AG - This case recognized that unreasonableness review is "inherently merits based", and the antithesis of judicial review. Isak v Refugee Status Appeals Authority recognized it substantive process judgement, but also unavoidably merits.

Carter Holt Harvey Ltd v North Shore City Council - The court engages in a qualitative assessment in unreasonableness review, looking at all elements in balancing public benefits and private rights, with an 'element of subjectivity'.

Wednesday Corporation - This introduced the principle with a high irrationality threshold in being perverse, or outrageous. The intensity of review would be light due to it being so merits based, but under anxious scrutiny. The courts will as is it fair or not? (different to absurdity) There is therefore a spectrum of review as to court intervention.

Front 4

Tell me about the instinctual nature of judicial review.

Back 4

Despite formalist claims that judicial review is dependent on substantive process errors, the common law has shown otherwise. The de facto motivation is something far more instinctual and principle based. Perhaps the rule of law governs it.

Martin v Ryan - Fisher J said judicial review was not automatic but "inherently discretionary".

AJ Burr Ltd v Blenheim Borough Council - Cooke J held, "the determination by the court whether to set the decision aside or not is acknowledge to depend less on clear and absolute rules than on overall; the discretionary nature of judicial remedies is taken into account."

Front 5

The Approach to Judicial Review in Reality.

Back 5

Ex Parte Guinness plc [1990] - "The ultimate question would... be whether something had gone wrong of a nature and degree which required the intervention... what form [it] should take." The impulse precedes doctrine, which needs to be excited.

Air NZ Ltd v Wellington Int. Airport - The courts deferred because they did not have jurisdiction over fees charged by the airport. It belonged to the Commerce Commission.

The defect must satisfy the materiality test - that it must affect the decision itself (ie: not a minor error). This instinctual principle must:

- demonstrate a real injustice (Wolf LJ)

- an abuse of power, particularly in the context of legitimate expectations of public decision makers.

- satisfy the "sniff test".

Front 6

How do the courts treat unfettered discretion?

Back 6

Padfield v Minister of Agriculture, Fisheries and Food - There is no such thing as unfettered discretion, as every power has constitutional and democratic limits, otherwise it cannot coexist with the rule of law. Phrases such as "as such orders as thinks fit" in statutes.

- This case concerned a committee of investigation with the Minister they were to investigate as the gatekeeper.

- The Minister resolved not to pass on a complaint because it would damage him.

- This was clearly an abuse of power as an irrelevant consideration. He was destroying the integrity of the scheme. Lord Upjohn said that the word "unfettered... can do nothing to unfetter the control [of the Judiciary] over the Executive."

Front 7

What is the doctrine of Ultra Vires and how do the courts deal with illegality and the Ireland Principle with regard to using powers for improper purposes? (Cooke P, Council of Civil Service, Municipal Council, Rowling)

Back 7

Cooke P - He shuns any sophisticated doctrine saying, "the decision maker must act in accordance with law, fairly, and reasonably."

Council of Civil Service Unions - This asserted authorities must give effect to the correct understanding of the law. Illegality is where:

1. There is an abuse of discretionary power.

2. Abdicating a discretionary power (adopting a fixed rule of policy)

3. Committing reviewable errors in making findings of law or fact.

Municipal Council of Sydney - A power granted for one purpose cannot be exercised for another, concerning a local council exercising powers over remodeling reserve lands.

Rowling v Takaro - Judicial review questions are often simple. Two court decisions of authority conflicted.

Front 8

What is the doctrine of Ultra Vires and how do the courts deal with illegality and the Ireland Principle with regard to using powers for improper purposes? (James Aviation, AG v Ireland, AG v Unitec)

Back 8

James Aviation v Air Services - Decision makers must use powers under correct provisions, even if provisions allow for the same outcome. They may not exercise more than one power at a time. An authority can either sit in appeal OR review, but breached this by adding a grant of rehearing and saying it should be granted (a merits judgement).

AG v Ireland - This created the Ireland Principle: A power may be exercised for an ulterior purpose as long as it promotes the statutory purpose. Joseph says this introduces uncertainty and makes unwarranted inroads into Padfield's principle. In this case an authority erected a building to monitor all reserves. The Court of Appeal overruled the HC's Ireland principle, but it may still be permitted.

Pub Charity v AG - In this case there was a policy rule adopted (abdicating powers) in line with a statutory scheme.

AG v Unitec - Unitec applied to register as a University, but the Minister put the application on hold till a review of the tertiary education system.

--> Unitec challenged but the courts said the Minister had to adhere to national policy and interest. The Minister made the decision whether or not it was to be processed, not whether twas to succeed.

Front 9

What does the court say about relevant and irrelevant considerations?

Back 9

Fiordland Venison Ltd v Minister of Agriculture and Fisheries - A decision maker must not be materially influenced by irrelevant considerations with no bearing on the statutory scheme, and must have fair regard to all mandated matters. Here an authority elected to decline because it had an adverse effect on existing license holders (oversupply), but this was outside the statutory scheme.

Warliche v Bate - An application for legal aid was declined due to limited funds, but this was held irrelevant and in contravention of the statutory scheme of justice.

- There are mandatory legal considerations.

- There are permissible considerations that are subjective to circumstance.

- One can only bring for judicial review if a mandatory consideration is treated as permissible.

Front 10

What did Creed NZ Inc v GG say about irrelevant considerations?

Back 10

Cooke J - "only when a statute expressly or impliedly identifies considerations... as a matter of legal obligation that the court holds a decision to be invalid... not enough that a consideration is one that MAY be taken into account... the more general and obviously important... the reader the court must be to hold that [Minister to account]."

- If noted as 'any' considerations in a list, they are permissible.

- if noted they 'shall' have regard, they are mandatory. Iwi considerations and mandatory, even if implicit (Radio Frequencies)

- 'public interest' invites implicit considerations (Wood v Cinematograph).

- The decisions must be relevant to the statutory purpose.

- The more open-ended the statute, the less exhaustive it will be non-exhaustive (Huakina).

Howe v Keown - A judge expressed they had already decided a hearing before it began, not having an open mind. They have mandatory considerations of the hearing.

Front 11

What do the court say about the degree of regard to mandatory considerations and evidence of it? (Haji, NZ Fishing Industry, Singh, Leiataua, Ye)

Back 11

Haji - Mandatory considerations may arise from legitimate expectations that procedures are promised to be followed. There must be "due deliberation and openness of mind".

NZ Fishing Industry - If genuine consideration can be shown, instead of a closed mind, the argument can be rebuffed. The courts will not say how far it should be considered in a value judgement (Singh). They must be transparent or will be exposed to challenge.

Leiataua - You must properly weight their significance as, "one cannot assume from a mere reference to a fact that it has been adequately considered."

Ye v Minister - There is an exception where a consideration internalises of weight. Under the Immigration Act deporting has flow-on effects (for a child), and the Minister must have the best interest of the child in regard. This is inherently merits based.

Front 12

What is the but-for test and how is it used in regards to the public interest?

Back 12

Poananga v State Services Commission - The CA stated the 'but-for' test: would the decision maker have acted as they did, but for the unauthorised collateral purpose? If no, then it is reviewable.

- it must be collateral to the authorised purpose.

- there is no public interest defence where a decision on review is challenged.

Laker Airways v Dep - "Public interest" cannot override statutory purpose, as it would create too great discretion.

Front 13

Abdication of discretionary power and what does this mean for fixed rules of policy?

Back 13

General rule - a decision maker cannot adopt a fixed rule of policy because it undermine the statutory concept of discretion subject to circumstance.

Ex Parte Corrie - A fixed rule was adopted in granting permits for the sale of literature during war time - this was illegal. As in Ex Parte Jones over taxi cab licenses.

Ankers - A computer program making calculated policy decisions was an illegal fixed policy, not subject to circumstance and morality.

Ex Rel Tilley - Allowing exceptions to a fixed rule is no excuse.

Vickerman - Despite public interest, it was unlawful to impose a fixed policy on fishing.

Practical Shooting Institute - Semi-automatics were banned because they believed they did not belong in NZ. Decision makers are encouraged to have consistent policies, but not to cross into absolute rules free of any judgement.

Front 14

Where might having a "fixed rule" be okay and allowed by the courts?

Back 14

Findlay v Secretary of State for the Home Dep - If they still preserve a significant element of discretion. Here they granted parol "where necessary" for specific offenses, but otherwise had an automatic response. You must ask:

- was it a binding rule?

- the question of discretion was "is this case an exceptional one"?

- the policy reason was mandatory national interest.

Tyler v AG - There was a fixed policy rule but it reserved sufficient discretion. They may adopt guidelines but everything must promote the statutorily authorised purpose.

Videbeck v ACC - You cannot act as a "rubber stamp".

Front 15

What if a decision maker surrenders a discretion to another power, meaning they act under dictation?

Back 15

Roncarelli v Duplessis - This is illegal and abdicating power. A licensing commission acted under the Premiere's instruction in depriving a license to a Jehovah's Witness member.

MacFarlane - While a statute may say they act under a direction of another, the power is still reserved to that person. That person cannot override their decision, despite the provision.

Elston v State Services Commission - Consulting third parties is fine, but not taking orders from them. A Minister may consult who they wish.

AG v Unitec - There is a distinction between dictation and regard to government policy. Where policy is a mandatory relevant consideration arising from implication, they may be justified in adhering to it.

Front 16

What is unreasonable review in the light of the Wednesbury Corp case, and what discretion does it give the courts?

Back 16

Associated Provincial Picture Houses v Wednesbury Corp - It is substantially merits based by looking into absurdity where no parliament would have authorized such a decision. This has meant:

1. The standard is unattainable, as no decision maker would act such a way.

2. The 1980s dropped the standard to substantive unfairness as a standalone ground for review (Tens Valley).

In Council of Civil Service Unions Lord Diplock: "a decision is irrational if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person..."

Front 17

What does substantive unfairness mean in practise in the Thomas Valley Electric Power Board case? (plus other cases)

Back 17

Thomas Valley Electric Power Board - Substantive unfairness was a legitimate ground of judicial review, allowing a review of otherwise unchecked powers, but it requires more than the mere opinion of a judge.

Wheeler - A local authority banned a rugby club from using its ground unless it said it didn't support apartheid. The Court said this was NOT substantively unfair, perverse, or outrageous, as it supported a reasonable policy, but was used as a coercive object - thereby it was quashed.

Carroll v Auckland Coroner's Court - Unreasonableness may be found if the court said it lacked satisfactory evidence foundations. This meant:

- not calling police before disappearance was not evidence based

- Caroll's explanation was just as reasonable.

There is in fact a "sliding threshold of review" depending on circumsance.

Front 18

How does the Court deal with Local Authority Rates Decisions?

Back 18

Wellington City Council v Woolworths - The Courts will almost always uphold decisions of elected bodies, unless they are a "clear and extreme case", as they don't interfere with democratically elected bodies.

Kurtis - The greater than policy content the less likely the courts will intervene. Though they will look with anxious scrutiny cases affecting human rights (Thames Valley). They will look at the functions and status of the decision maker (Electoral Commission v Cameron).

Cooke P - "It is now the position that there is no single standard of unreasonableness."

Air NZ Ltd v Wellington - "There is now a spectrum of review intensity under the head of unreasonableness."

Front 19

What does audi alteram partem mean, especially in relation to natural justice?

Back 19

Board of Education v Rice - It is a duty lying on everyone who decides everything to act in good faith and fairly listen to both sides. This is the audi alteram partem principle: "hear the other side" and that nobody may decide their own cause.

Natural justice - natural justice requires notice of evidence and a hearing is given "adequately" so that interested parties may draft arguments (Mockford).

Daganayasi - A deportation order was given which would kill the child if the parent left. Mother applied for judicial review, and the Minister said they relied on a medical report. It was revealed the report did not consult the clinic at all in its claims.

--> The Minister had breached natural justice in acting as he did. The report was not supported by evidence, and full disclosure was required.

Osborn v Parole Board - Inherent right to speak to submissions is suggested in oral hearing, especially in cases of ambiguity, otherwise resulting in resentment. Rose v Humbles demanded an oral hearing where reputation or credibility are an issue.

Front 20

What is the right to legal representation?

Back 20

Pett's case - if the case affects their livelihood, legal consultation is a right and the decision maker ought to allow for it.

Ex Parte Tarrant - The decision maker should have regard to the seriousness of the charge, whether question of law will arise, the potential for procedural difficulties, the desirability of a prompt determination, the overall need for fairness.

Front 21

Under the audi alteram partem rule, what do the role of non-neutral parties as administrators play?

Back 21

They have to step aside and declare their bias, because they cannot preside over their own case. This may require them to vacate the court entirely as to avoid affecting the decision, though not always (Wislang). If it does affect the decision it will not be allowed to stand (Murdoch).

Jeff's v NZ Dairy Board - Boards intended to gather evidence cannot summarise because this assumes decision making power.

Front 22

Is there a duty to warn against adverse credibility findings?

Back 22

Erebus - Yes, you can. You cannot effect their livelihood without hearing them. It is an equitable right to know what is being charged against you. In this case there was an accusation of conspiracy to hide evidence as a predetermined plan of deception, but had not alerted the airline before publishing by the courts.

Khalon v AG - You have duty to warn so that they will not be surprised, and it will prevent potential prejudice.

Front 23

Is there a duty to give reasons for a decision, and is this a ground for judicial review?

Back 23

R v Awatere - This case commented on the age of accountability and transparency, one dimensional of which is reasons given.

Breens - "The giving of reasons is one of the fundamentals of good administration." A decision otherwise contrary to justice and the rule of law, exposing them to challenge.

Lewis v Wilson and Horton - Joseph called this a "lost opportunity" to recognise a legal duty to provide reasons, where name suppression was granted in a drugs case without reason, while publishers wished to publish his name. Reasons are required because:

1. They uphold open justice.

2. They protect against wrong decisions, contrary to practise.

3. It is pragmatic in upholding the right to challenge any public decision.

Jones v AG - Jones disobeyed road rules but alleged police were lying. This case was indicative that there need be a ton of reasons where decisions affect personal liberties and rights.

Front 24

What is the Distinction between Presumptive and Apparent bias?

Back 24

Presumptive bias - You can be disqualified either because there is a pecuniary interest in the case, known as presumptive bias, to any degree whatsoever (Auckland Casino Ltd). You have to step aside. Dimes was a classic case of this.

Apparent bias is where the judge does not approach a case with an open mind, and can be assessed from demeanor or disposition, statements prior, outward favour, relationship to parties, any conflict of interest.

Different degrees of impartiality are required from different courts. but courts should be as impartial as possible.

Front 25

What are two recent developments, though it has now reverted back to the original case of law?

Back 25

Auckland Casino Ltd - This case said judges would be the best judge of apparent and presumptive bias, which NZ followed in R v Gough. A fundamental change from the fair-minded person prior test.

Porter v Magill - This recognised it was at odds with EU requirements, which demanded an objective test.

Muir v Commissioner - NZ said we should return to the objective test. In Saxmere we finally reverted back to the objective fair minded test saying, "the same test should apply".