Judicial Review

Question	Answer
Where is judicial review available?	Where the person has standing (locus standi) and the decision is of a public nature.
What are the three main grounds for judicial review?	Illegality, procedural impropriety and unreasonableness.
Where is the right to judicial review preserved in statute?	The Judicature Amendment Act 1972, s 4(1).
What are the leading cases on whether someone has standing for judicial review?	Finnigan v NZRFU [1985] 2 NZLR 159 (CA) - a private body can be judicially reviewed where there is sufficient public interest. McVicar v NZ Parole Board [2015] NZHC 2153 - no standing where they have no interest in the decision (no public interest or representation of victims).
What cases state that the courts should not analyse the merits of a public decision?	Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA). Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA). Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 229 (HCA).
What bodies are amenable to judicial review?	Public bodies. SOEs where there is corruption or bad faith [Mercury Energy Ltd v Electricity Corporation of NZ Ltd [1994] 2 NZLR 385 (PC)] or there is public interest [Ririnui v Landcorp Farming Ltd [2016] NZSC 62]. Private companies where they serve a public function [Dunne v CanWest TVWorks Ltd [2005] NZAR 577 (HC) & Craig v Mediaworks [2014] NZAR 973 (HC)]
Where is a case not justiciable?	Where the decision was made by someone with far more expertise than a judge or where the decision is highly political.
Why are courts reluctant to intervene in political decisions?	Because Parliament is democratically elected and accountable to the public. The courts are not elected by the people and therefore highly political decisions should be left to those in that public position.
Give an example of a case which was ruled to be non-justiciable and explain why.	Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 (HL) It was an issue of national security, which the courts did not feel comfortable deciding due to the highly political nature.
What is illegality?	Illegality is a grounds used where a decision-maker has made a decision not in accordance with the law.
What are the subcategories under illegality?	Relevant and irrelevant considerations, improper purposes and mistake of fact.
Can illegality be a grounds for judicial review where there is a breach of international legislative instruments? Explain.	Yes. Because of Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA), it can be considered to be a mandatory relevant consideration. However, decisions do not have to specifically name conventions, but decisions should be compliant [Puli'uvea v Removal Review Authority (1997) 14 FRNZ 322 (CA)].
What are relevant mandatory considerations?	Factors which must be taken into account by decision makers when making a public decision.
What are irrelevant considerations?	Factors which should not have been considered when making a decision, which played a substantive part in the decision making process.
Why is mistake of fact a controversial grounds for judicial review under illegality?	Because it is usually adequately covered by other grounds, such as taking into account irrelevant considerations or unreasonableness.
What case tells us that no discretion is unfettered, even if it appears to have no limitations in statute?	Padfield v Minister of Agriculture, Fisheries and Food [1968] (HL).
What is the leading case in New Zealand on making irrelevant considerations? What does it tell us?	Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) - when decision makers consider factors outside of the statute, which frustrates its purpose, it includes irrelevant considerations
Explain the relevance of statutory interpretation to relevant and irrelevant considerations.	For a consideration to be irrelevant it must be outside the purpose of the statute and its exercise must be contrary to the purpose. For a consideration to be relevant it must be central to the purpose of the statute. Both situations require addressing the purpose of the statute carefully. See Warlich v Bate [1990] 3 NZLR 97 (HC) or Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) for irrelevant considerations. See Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 (HL) for relevant considerations.
What cases tell us that mandatory relevant considerations may be implicit?	Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) - Treaty of Waitangi held to be an implicit mandatory relevant consideration through its mention in its parent statute. Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA) - ToW implicit consideration because of acknowledgment of Waitangi Tribunal report, very context specific
What does Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 229 (HCA) tell us?	It tells us that not all relevant considerations are mandatory, meaning that failing to consider them will not necessarily make the decision voidable. The court will not find the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
When is discretion deemed to be used for improper purposes?	When it is used in a way which contradicts the purpose of the statute.
What cases explain improper purposes? What do the cases say?	Wheeler v Leicester City Council [1985] AC 1052 (HL) - banning teams using apartheid rules contradicted the purpose of the statute which was to provide public grounds. Also note Padfield and Fiordland, which describes power used for improper purposes.
Can discretion be used for purposes outside statute which does not frustrate the purpose of the statute?	Yes, discretion used for other purposes does not automatically made that use of discretion illegal.
What cases discuss use of discretion outside of strictly authorised purposes, but not for improper purposes?	Attorney-General v Ireland [2002] 2 NZLR 220 (CA) - having buildings in a reserve for DoC headquarters not contrary to statute allowing buildings for administration of that reserve. Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 (SC) - instigating price freeze not contrary to statute authorising economic regulation of electricty companies.
What is the state of the grounds of mistake of fact in New Zealand?	It is in limbo, neither accepted or rejected. In Taylor v Chief Executive of the Department of Corrections [2015] (CA), the court says that mistake of fact would exist as a grounds if it were to be acknowledged. It is also mentioned in Daganayasi v Minister of Immigration [1980] where Cook J advocated for it because mistake of fact materially changed the decision.
What is the state of the grounds of mistake of fact overseas?	It is recognised in the UK. The criteria for mistake of fact are listed in E v Secretary of State for the Home Department [2004] QB 1044 (CA). There must be a mistake as to an existing fact. The fact or evidence must be uncontentious. The appellant or person seeking review must not have been responsible for the mistake. The mistake must have played a material part in the reasoning of the decision making.
What is the leading case on unreasonableness generally?	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
What is the standard for unreasonableness in New Zealand?	Under Wellington City Council v Woolworths New Zealand Ltd (No. 2) [1996] (CA), the standard is that the decision must be so unreasonable that no reasonable authority would make that decision, as per Wednesbury. However, there is some conflict after Wolf v Minister of Immigration [2004] (HC), which rejected Wednesbury as too strict and Diagnostic Medlab Ltd v Auckland District Health Board [2007] 2 NZLR 832 (HC), which followed it. Wednesbury was also followed in Taylor v Chief Executive of the Department of Corrections [2015] NZAR 1648 (CA).
What is the state of the grounds of proportionality for judicial review in New Zealand?	It is not yet recognised but it has some support. In Wolf v Minister of Immigration [2004] NZAR 414 (HC), Wild J suggested that proportionality
What is the status of the defence of proportionality in New Zealand?	In Wolf v Minister of Immigration [2004] NZAR 414 (HC), Wild J argued that proportionality should be recognised as a grounds for judicial review because it is recognised in the New Zealand Bill of Rights 1990, s 5. This is similar to the UK, which recognises it by virtue of their Human Rights Act, s 6 which is a similar proportionality clause. However, it is not officially recognised because of the Wednesbury unreasonableness standard.
Explain Taylor v Chief Executive of the Department of Corrections [2015] NZAR 1648 (CA)	Bill of Rights - balance freedom of expression (s 14) with prison superintendent discretion because of s 5. Discretion derives from statute which says that it must not be used to contradict the NZBORA. Relevant considerations - failing to consider an alternative means of conducting the interview which satisfies freedom of expression and prison security and order Unreasonableness - the assessment of risks to security and good order was held to be Wednesbury unreasonable
What are the two principles of natural justice?	audi alteram partem - hear the other side nemo iudex in sua causa - no one should be a judge in their own cause
Where is the right to natural justice preserved in statute?	New Zealand Bill of Rights Act 1990, s 27.
Explain Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66 (HL).	A constable was dismissed by the Watch Committee due to criminal corruption charges. He was not informed of the reasons for his dismissal. This infringed on his right to be heard or participate. Because this option removed his pension rights, it could also be considered to infringe on property rights.
Explain Daganayasi in relation to procedural impropriety.	When the prejudicial report was presented to the Minister, Daganayasi was not given any notification of the information within or the Minister's reasoning. This prevented her from participating in the decision. The principles of natural justice required that she be notified and be able to refute any adverse material introduced.
Which case sets out where the right to natural justice applies?	Drew v Attorney-General [2002] 2 NZLR 58 (CA). 1. Seriousness of charge & potential penalty 2. Whether any points of law are likely to arise 3. The capacity of a particular person to present their own case 4. Procedural difficulties likely to be encountered 5. Need for reasonable speed in making an adjudication 6. Need for consistency / fairness
What are the two types of bias?	Presumptive and apparent bias.
What is one of the founding presumptive bias cases?	In Dimes v Grand Junction Canal (1852) 3 HL Cas 759; 10 ER 301, the judge held shares in the company he was making a decision over. Therefore, that judge should not have sat on that case.
Give an example of a presumptive bias case in New Zealand.	In Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA), one of the members of the Casino Control Authority, which granted casino licenses, had shares in the company which owned one of the companies which was tendering for the casino licensing. Although this was held to be a direct financial interest, the courts did not provide a remedy because the courts used their residual discretion because there was acquiescence to this direct financial interest.
Give an example of a recent presumptive bias case overseas.	In R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) [2000] 1 AC 119 (HL), Amnesty International appeared as an intervener. Lord Hoffman who presided over the decision was a director of a company who was a subsidiary of Amnesty International. While this is not really a financial interest, it is a direct legal link. This demonstrates the overlap between presumptive bias and apparent bias.
What is apparent bias?	These are non-financial biases, such as relationship/friendship bias and predetermination.
What is the standard for predetermination in New Zealand?	As per CREEDNZ v Governor-General [1981] 1 NZLR 172 (CA), predetermination can only be satisfied where the other party is irrevocably committed to their decision before going through the official decision-making process. Until then, the other party can't be considered to have completely closed their mind.
What are the requirements for a legitimate expectation? What case is this articulated in?	As stated in Comptroller of Customs v Terminals ((NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 (CA), one party must have promised to do something, which the other party has agreed to and relies on.
What happens if a legitimate expectation is breached?	It is treated the same as a breach of contract, but within the public law sphere.
What are the major downsides to judicial review?	It is expensive and damages are not available.
Why might the court make a decision voidable, rather than invalid?	Where the finding is unlikely to change the decision made or so much time has passed that revoking the decision may not be useful anymore. See Auckland Casino Ltd v Casino Control Authority [1995] (CA).

Next up

Description

Resource summary

Similar

	Created by Bre McDonald about 8 years ago