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Campbell, Mark --- "The legal consequences of promises and undertakings made by public bodies" [2002] CanterLawRw 1; (2002) 8 Canterbury Law Review 237


THE LEGAL CONSEQUENCES OF PROMISES AND UNDERTAKINGS MADE BY PUBLIC BODIES

Mark Campbell[*]

I. Introduction

Statements made by public bodies play an important role in modern society, and it is important to know how far these statements can be relied upon by the public, and what legal remedies exist for breach of an undertaking. For the most part, this paper looks at remedies available through private law doctrines — contract, estoppel, tort and abuse of procedure of the courts. However, it is also important to look at what may be the most expansive tool for controlling executive power—the public law doctrine of legitimate expectation. It appears that the courts prefer to enforce promises, at least where this does not interfere unduly with the public interest in retaining an unfettered discretion. The courts have perceived similar policy issues underlying each potential head and thus have tended to find similar solutions. It consequently appears that there is a 'remedial convergence' which blurs the technical distinctions between the doctrines.

II. Promises Protected by Contracts

The government frequently uses contractual mechanisms to achieve its goals. The Crown may claim authority to contract from two sources — its prerogative power and statutory authorisation.[1] These sources require separate discussion. With respect to the prerogative power it is necessary to consider whether such contracts are prima facie unenforceable. If they can be enforced, there is the difficult question of whether the Crown may walk away from contracts unscathed by arguing that the public interest requires this.

Prerogative Powers

Can the Crown Bind Itself?

The prerogative is a general power to be exercised in the public interest. The Crown can receive the benefit of a contract,[2] but for some time there was real dispute as to whether the Crown could be held to a contract entered into as part of its prerogative power. Thus, there has been much controversy over whether civil servants can sue on their employment contract — a question resolved by statute in New Zealand.[3] The fundamental tension is between the need to avoid fetters, and the desire to enforce compacts that have every sign of being a contract.[4] New Zealand courts have found contracts independently of any statutory authorisation. InRothmans of Pall Mall v Attorney-Genera,l[5] the contract failed for lack of consideration only.[6] The Forest Accord was also a valid contract.[7] This accords with constitutional theory, which holds that the Crown is a private person, and has the same powers.[8]

However, it has been argued there can be no fetter of the prerogative power.[9] The leading example of this approach is The Amphitrite[10] in which a promise by the Crown not to impound a vessel was held unenforceable. However, the true position is unclear. Aronson and Whitmore argue the rule may be restricted to fettering statutory powers.[11] Several cases have followed The Amphitrite doctrine[12] including Hamilton CC v Waikato Electricity Authority,[13] but it has also been the subject of considerable criticism from academics[14] and the courts,[15] without being decisively rejected. In a very similar case[16] the court concluded that a seizure under emergency powers did breach a contract, but The Amphitrite was not cited. There are many arguments in favour of permitting binding contracts to result from the exercise of prerogative powers. First, the authority for the opposing position is slight. The comment in The Amphitrite was obiter since the undertaking was held to be a statement of current policy only.[17] The appropriate action therefore lay in estoppel,[18] which was not addressed by the court. Other cases typically involve contracts that were never intended to exclude the public interest, or where the discretion was protected by statute.[20]

Denying the Crown the power to contract creates inconsistencies. When the contract is consistent with statutory duties it will be upheld,[21] so much will depend on the willingness of the courts to find a statute which comes close enough to the subject matter of the contract to circumvent The Amphitrite doctrine. Even then there would be dispute as to whether the contract was made under statutory or prerogative power. [22] Every undertaking fetters,[23] yet The Amphitrite maintained that commercial contracts were binding.[24] Historically, the Crown was bound by contracts and grants made by it.[25] Joseph argues that to allow the Crown to escape contractual duties is an 'anomalous exception' to governmental accountability, and 'no more justified' than the doctrine of state necessity.[26] Further, the prerogative is reviewable in public law, which means that its procedure is fettered.[27] The Amphitrite was decided when the prerogative was not reviewable.[28] Continued adherence to The Amphitrite doctrine is anachronistic.

Finally, the argument that the Crown cannot contractually dispose of its public interest discretion creates a difficult theoretical problem. Presumably, when the Crown contracted initially this was thought to be in the public interest,[29] and in the interest that it would be binding.[30] To hold otherwise is to deny the Crown the ability to pursue the public interest in the way it sees fit. Given that contractual relationships form so much of modern government activity, such a ruling will have wide ramifications. Even if the public interest later requires a different policy, this should not vitiate the contract ab initio,[31] for that would mean that the initial act was ineffectual. Viewed in this light, the prerogative power to contract is an exercise of power,[32] not an abdication of discretion. Furthermore, if the Crown cannot form a binding contract, there would rarely be any consideration for the other party[33] and the Crown would be unable to enforce the contract.[34]

The question should focus on when the Crown is able to break contracts,[35] and what the consequences of breach should be.[36]

May the Crown Only be Held to Commercial Contracts?

The current state of authority does not restrict enforceable contracts to those of a commercial nature. However it has been suggested, following The Amphitrite, that the Crown can be bound, but only to commercial contracts.[37]

Aickin J in Ansett commented that the distinction between commercial and non-commercial contracting 'does not leap to the eye'.[38] The attempt to define what was commercial would spawn a good deal of litigation.[39] Furthermore, commercial contracts will also be a fetter[40] and can involve policy just as other contracts can. Petrocorp Exploration Ltd v Minister of Energy concerned a commercial contract but involved policy.[41] The justification of safeguarding the public interest therefore seems to apply equally to commercial contracts. It may be that a distinction lies between operational and policy matters,[42] but that is a very different question than whether the contract is commercial or not, and the operational-policy question has rarely been raised by courts in a contractual sphere.[43] Interestingly, international law[44] has moved away from an approach that provided sovereign immunity[45] for any act done by organs connected with the state,[46] including blatantly commercial ones, to one that provides immunity only for 'public acts' as opposed to 'commercial' ones[47] — and possibly not even to all public acts.[48] The difficulties caused by sovereign immunity have led to statutory definitions of commercial conduct in England[49] and the United States,[50] and these might provide a useful model were courts to adopt a commercial contract limitation.

However, New Zealand cases have treated agreements as contracts even when not in a commercial sphere. Even if the West Coast Accord is a commercial contract, the compact in Rothmans was not, yet was treated by all parties as binding, and only failed for lack of consideration.[51] There is some merit in preserving the Crown's discretion with respect to wide policy matters, especially when new governments are elected. Mitchell argues that The Amphitrite should be restricted to these 'essential functions' of government.[52] However a better approach may lie in looking at the intention of the parties. Some Australian cases suggest that there is a distinction between commercial and political spheres.[53] Thus, it has been held that agreements between the imperial and colonial government could not be enforced,[54] nor an agreement between the state government and the federal government.[55] In the latter case, Windeyer J held that because such agreements may not intend judicial intervention:

Undertakings that are political in character - using the word 'political' as referring to promises and undertakings of government, either to their own citizens or to other states or governments - are therefore often unenforceable by processes of law (emphasis added).[56]

This does not form a rule; it is a question of intention. There appears to be an assumption that a government would not intend to be bound except where there is a high degree of formality,[57] but where that is present the contract will be enforceable.[58] One case suggests a willingness to find contracts with public bodies 'where one might not be found as between private parties',[59] but this dictum has not been followed. Another possibility is to imply a term releasing subsequent governments from the contract, or allowing national matters to take precedence.[60] However, the Court of Appeal declined such an approach in Devonport BC v Robbins,[61] and instead implied a term of cooperation.[62] Failing this,

government could introduce legislation releasing it from the contract, a process with which the courts cannot interfere.[63] Canadian judgments have held that where the government does this it will still be in breach,[64] but indicated clear legislative language would prevent damages flowing.[65] In one case liability was found despite legislative intention to prohibit damages.[66] New Zealand has taken a more restrictive approach to liability for legislation under Rothmans.

In short, the executive does not need the protection courts have sought to provide.

Contracts under statute

Where contracts are contemplated by statute the Crown will be bound, so long as it remains within the scope of the statute, or where breach of the statute is only trivial.[67] In these circumstances, the Crown is effectively in the same position as a statutory body and the question is one of statutory interpretation. The public body must comply with statute, or else the contract will be ultra vires and void.[68] However, difficulties arise because of the breadth of some statutory provisions, especially in relation to the public interest. This then raises issues similar to those arising under the prerogative. The starting point is that the statutory powers cannot be fettered by private arrangement.[69]

Where the contract concerns basic administration, there is no dispute that contracts are binding, apparently because these are in the furtherance of statutory functions.[70] In several cases concerning tendering procedures, public bodies have been bound under the two-contract approach,[71] in exactly the same way as if they were private enterprises.[72] Normally, in these circumstances, there is at least an arguable case that the public interest is promoted by letting the public body retract its undertaking. In Markholm Construction,[73] the council was liable for deciding not to sell at bargain rates, which would not have been in the public interest. In Hughes,[74] Finn J held it was legitimate to be bound as to procedure, at least where that was not too inflexible.[75] New Zealand courts seem unconcerned as to whether the procedure is too rigid. It is hard to think of a more inflexible procedure than sale by lot,[76] and the outcome of the proper tendering process was certainly considered definite in Pratt Contractors[77] —hence damages were awarded for lost profit, rather than merely reliance loss. The most detailed examination of the relationship between contracts and statute occurs in Ansett.[78] There, contracts were made and then approved by legislation outlining the government's position on aviation competition. Had the contract been breached, damages would have resulted. Mason J suggested that there are three types of situations:

- where the repository of the discretion was the same as that bound by contract. In these cases, the contract would be void as an illegitimate fetter.[79]
- where the discretion lies with a third party, this would not violate statute and damages should be awarded.
- where there is 'statutory approval'[80] for the contract, specific performance may be granted, unless the statute leaves a discretion to breach.

Whether this is workable remains uncertain. The pervasive nature of the Crown may mean there will be few cases in which category two will be fulfilled.[81]

Mandatory procedures must be complied with,[82] and contracts cannot prevent the executive from voting or introducing legislation,[83] although Canadian authority has held that the executive will be liable for breaching the contract by introducing the legislation.[84] The Court of Appeal has held that not every fetter will be struck down and that this is normally ' confined to the exercise of major, commonly coercive, powers' .[85] A similar approach was adopted in Petrocorp where the contract was held to be valid and binding, although the reasoning of the majority varied somewhat. The Privy Council reversed the judgment, categorically affirming that the national interest (recognised in the relevant statute) had pre-eminence over other provisions, including the permission to contract.[86]

This leaves the New Zealand position unsettled. Court of Appeal authority favours upholding contracts,[87] an approach followed in the High Court, at least where this is in furtherance of the authority's duties.[88] Ultimately, the question is one of statutory interpretation, and general principles can be of little assistance, although the Court of Appeal has noted (in a different context) that there is a tendency 'against reading a statute in a way which removes protection for those affected by the exercise of power of officials'.[89] Nevertheless, numerous foreign cases give preference to maintaining the discretion.[90] The New Zealand approach is out of step in this regard. A contract should bind unless, on a true construction of the statute, there is a duty not to restrict the discretion.[91] Arguably, a duty will only exist if the statute prohibits any final determination of the discretion. On this view, Petrocorp was correctly decided in the Court of Appeal because the Energy Act 1977 allowed contracting, as well as permitting the Crown to act in the national interest.[92] By providing both powers the legislature was presumably contemplating that contracting might be in the national interest. A decision to breach that contract should therefore attract damages, unless done through legislation.

Can the Crown Breach Contracts in the Public Interest?

One approach is to hold the Crown bound by its contracts but to permit it to breach the contract without incurring liability, if the public interest requires the breach.[93] This is a more helpful way to think about Crown obligations, but is often conflated with the question of whether the Crown can be bound. The question is whether the Crown can avoid a contract even if it was initially in the public interest.[94] Naturally, the Crown can repudiate its contracts, just as any other party can.[95] However it will be liable for that action unless the public interest defence applies. This raises two questions. First, under what circumstances does the public interest supplant the contractual obligations? Secondly, to what extent can the courts investigate these circumstances?

Where the terms of the contract come into conflict with an unrelated duty, enforcing the duty will not be a breach of contract. Thus, in Page it was held the use of emergency powers to requisition a property did not amount to eviction under the implied term of quiet enjoyment.[96] Other cases have found that where a statutory body has a duty, there is no breach of contract where that duty prevents it performing the contract.[97] This applies even where the contract explicitly tries to oust the public duty.[98] However, in Lumber Specialties v Hodgson there was a public interest in the breach,[99] but contracts between Timberlands and millers were enforced to the letter of the contract[100] even though Timberlands is an organ of the Crown, and was acting under lawful ministerial direction.[101] The decision of the Court of Appeal in Petrocorp is to similar effect. Likewise, the Supreme Court of Canada upheld a claim for damages when a civil servant lost his position through legislative restructuring.[102] A unanimous court held there should be no difference between the state and the private sector and held 'there is a crucial distinction, however, between the Crown legislatively avoiding a contract, and altogether escaping the legal consequences of doing so'.[103] To provide no compensation is 'harsh and extraordinary...[and] requires specific and unambiguous language'.[104] Nor was the Crown permitted to argue frustration as the legislation was really its own doing.[105] In T1 T2[106] the court held that introduction of a bill nullifying a contract was a repudiation of the contract, and gave summary judgment for the plaintiff. The cases are irreconcilable. It may be that damages flow where the administering body changes its view of what the public interest is, as in Hodgson, Newfoundland, T1T2, Petrocorp[107] andMarkholm Construction, but not where the contract comes into conflict with a different pre-existing duty, as in Temperley Steam and Page.[108] It is more likely that the cases are simply inconsistent.

Campbell[109] argues that the government must be free to give priority to national interests without the fear of damages. Like Mitchell,[110] she argues instead that some measure of compensation should be payable; but this seems to raise similar problems to awarding damages.[111] However, the government is normally required to obey the law, and cannot search unreasonably[112] or act negligently with impunity. When a government does want to avoid a contract, it is able to do so through legislation.[113] Admittedly there may be cases where legislation cannot be passed because parliament is not sitting, or because the government does not command a majority on the issue. The difficulty is not so great as it appears. Parliament will almost inevitably sit at some stage prior to judgment,[114] and an inability to command a majority may merely indicate that legislation is not in the public interest. The public interest is a broad concept, and the courts assume that parliament's decision is determinative of the issue. If parliament refuses to legitimate a breach the courts should assume that this is in the public interest too.[115]

If public bodies may avoid a contract where this is in the public interest, it is vital to determine if the court can investigate whether the contract does conflict with the public interest, as sought to be exercised by the authority. In Petrocorp the Privy Council affirmed Richardson's J view that the national interest was solely a matter for the decision maker.[116] Claims for breach of contract could not, therefore, be entertained.[117] However, Cooke P not only asserted that the decision 'must at least be open to scrutiny', but proceeded to overrule the decision maker because the decision was based on 'predominantly commercial reasons'.[118] The national interest was a statutory obligation in this case, which may have influenced Cooke's P judgment, and certainly did affect Hardie-Boys J.[119] Thomas J has declared that a statutory body (Pharmac) could not act arbitrarily 'even though it might be able to claim that any such action would best serve the health needs of the population'.[120] However, he acknowledged that inconsistency was permissible if rational,[121] which would presumably be met by satisfying health needs.

However, in other contexts the courts have shown deference to the executive, for example Choudry v Attorney-General.[122] In CCSU Lord Fraser demanded evidence that national security was really an issue,[123] and authority supports this.[124] In Czarnikow[125] Lord Wilberforce stated the courts can review the motivation of the government,[126] to ensure it is acting for the public good and not merely to avoid the contract,[127] but doubted if this could extend to foreign governments. However, Lord Diplock[128] has held that national security was not justiciable, although this does not necessarily mean that it can be pleaded without any evidence at all. Moreover, in Hosenball[129] the Crown was not required to disclose reasons for deportation.

Judicial deference is warranted because of the courts' inability to assess the situation accurately. Thomas J has strongly disputed this assumption,[130] but on the authority at present, the most that can be said is the courts will require some evidence that there is a national interest at stake, and will examine the motivation of the public body.

It therefore seems that the Crown will be bound when contracting under either its prerogative or statutory powers. To the extent that these contracts conflict with existing duties the contract is void, but where subsequent legislation requires breach, damages will generally be payable. Where the national interest is pleaded, the courts are reluctant to interfere, and this suggests that damages are not available. However, even this last bastion of executive necessity is criticised.

III. Legitimate Expectation

Legitimate expectations arise when public bodies make assurances to legal persons that the public body will act in a certain way, for example by approving a zoning application or granting immigration status. The mere statement of a public body may create enforceable rights, even where that statement would not create rights under established heads of judicial review or estoppel. The phrase 'legitimate expectation' was first used by Lord Denning in passing as part of a wider obiter statement.[131] It now forms one of the corner stones of judicial review. Notwithstanding its popularity as a cause of action, the true scope of the principle remains controversial. The conceptual basis of the doctrine is unclear. Lord Denning provided no explanation when he first referred to it, but a number of cases view it as an abuse of power,[132] by acting inconsistently with a promise. Other cases have perceived it as a form of estoppel.[133] The confusion is exemplified by cases which Lord Denning decided in estoppel later being applied by 'legitimate expectation' cases.

Elements of the Doctrine

Primacy of statute

A legitimate expectation cannot obligate an authority to act contrary to its duties under statute.[134] Brennan J has gone further, arguing that an expectation can only be valid where the repository of the power was entitled to bind itself.[135] However, the general run of cases suggests that an obligation may be created if that is not inconsistent with statutory duties.[136] Where courts have found a legitimate expectation they have tended to favour the view that an undertaking must be upheld, with respect to those parties to whom it is made, unless there is a pressing public interest justifying departure.[137] Thus, even a legitimate change of policy should not be enforced against those individuals.[138] Equally clearly, the courts will find that where the undertaking was invalid, it cannot be enforced.[139] It is unclear whether the precise reason for this is that expectations cannot be legitimate if arising from an unlawful source, or whether the undertaking is simply void. However, in Launder[140] a promise was said to be effective even if its vires could be disputed.[141] The key issue then is not the source of the promise, but whether enforcing the promise would be detrimental to the public interest. A promise to act contrary to a statute will never be in the public interest.

Clear Undertaking

There must be a clear undertaking. This will be satisfied where there is a formal policy,[142] a clear representation,[143] or an existing practice.[144] A formal policy will create a legitimate expectation that this policy will be applied until it is formally changed, unless there are good reasons for departing from it:[145] 'nobody has a legitimate expectation that a policy will not change'.[146] Where the expectation is already in place, it cannot be frustrated except where there is pressing public interest demanding departure in that instance.[147]

Not every representation creates a legitimate expectation. What is needed is conduct 'equivalent, had they not been a public authority, to a breach of contract or a breach of representation giving rise to an estoppel';[148] an 'express promise' or a practice so well established that departure 'would be unfair or inconsistent with good administration';[149] where there is the 'character of a contract' .[150] Thus, legitimate expectations have been rejected where there was ambiguity as to the timing of a promised parole,[151] where a letter did not purport to state all the grounds for deportation,[152] and where an article written by the Prime Minister could be literally read so as to be consistent with actual practice.[153] Misunderstandings will not create a legitimate expectation.[154]

A practice must be well established in order to create a legitimate expectation. The House of Lords in Council of Civil Service Unions found a legitimate expectation because there was an 'invariable practice', although a 'regular practice' could be sufficient, the test being whether to resile 'would be unfair and inconsistent with good administration.'[155] In Te Heu Heu v Attorney-General[156] Robertson J found that a practice of consulting with Maori could give rise to a duty to do so, although none existed here .[157] Heron J has held that a legitimate expectation exists that the Crown will act as 'directed' to by the Court of Appeal.[158] However, the practice of an informal grace period did not give rise to a legitimate expectation even when the applicants were informed of it.[159] An existing policy may be subsumed by a well established practice.[160] Surely, the proper test is to look at what the applicant knew at the time in ascertaining whether the expectation was legitimate. This test accords with what was done in Waite.[161] Thus, knowledge of the contrary policy may make the expectation that normal practice would be followed less legitimate. In Pharmac Thomas J attached some significance to the fact that both policy and practice supported the legitimate expectation,[162] but noted that simple inconsistent treatment breached a duty of fairness.[163] He adopted a similar analysis in Attorney-General v E in which he used practice as a guide to the interpretation of policy.[164]

Policy can also be relevant, but the cases seem to indicate that it will not be determinative if there is a contrary practice.[165] Valid policy change cannot attract liability, so altering the retirement age[166] and fishing quota policy[167] were not vitiated. However, deviations from existing policy will constitute a breach. Thus, phone tapping contrary to policy founded liability,[168] although the High Court has viewed expectations arising 'merely...from guidelines approved by the Minister' unfavourably.[169]

Who Can Create a Legitimate Expectation?

A central question is who has authority to create a legitimate expectation. Expectations cannot always be protected,[170] and it can be said they are not legitimate if created by someone without authority. In MFKit was held that only a formal tax ruling would have been binding,[171] and in Matrix-Securities the House of Lords attached some significance to the fact the scheme had only been approved at a local level.[172] In Begbie it was held that a pre-election promise could not bind a public body because the politician involved was not part of the body at the time.[173] The question of authority has been addressed in two estoppel cases. Lord Denning held that statements bound any officer acting within 'his ostensible authority' .[174] Megaw LJ agreed with Lord Denning in that case, but in Western Fish retreated considerably. He argued the applicant needed reason to believe the statement was binding, and appeared to require actual authority.[175] The approach of Megaw LJ seems the better one, for it allows an authority to exercise control over its officers. The cases almost universally concern statements by people with the authority to give effect to the promise, and it seems reasonable to make this a requirement.

Circumstances Creating Legitimate Expectations

Legitimacy connotes a sense of objectivity, and requires more than that the plaintiff reasonably expected the result to follow.[176] Legitimate expectations will arise where a statement is made in circumstances in which it is objectively reasonable to expect the speaker to stand by that statement. Clearly, it will not be reasonable where there has not been proper disclosure or where it would involve the authority in a breach of statute. There must be some real consideration of the matter by the speaker.[177] The more demanding position, that the applicant must show that he had some reason to believe that the statement would be binding,[178] or that the speaker must have intended to be bound,[179] does not seem necessary. However, because the court focuses on fairness, the conduct of the applicant is also important, thus full disclosure is required.[180] It seems that where the undertaking is within the promisor's power and not contrary to law, it is entitled to make a promise about future conduct,[181] and existing states of affairs.[182]

A mistake of law will not create a duty,[183] but a mistake of facts can,[184] even if the courts will be 'slow to fix' the body with the effect of the mistake.[185] The tax cases[186] require full disclosure, but do not suggest that a unilateral mistake would vitiate the legitimate expectation, and Matrix-Securities suggested compensation for expenses incurred in reliance on the mistake. Both Steelfort and Lever found the mistake lay entirely with the authority, and upheld a duty.

Need the Applicant Know of the Assurance?

The use of the word 'expectation' suggests a subjective element, for there can be no expectation without knowledge of the undertaking.[187] An extreme example of this is a decision of the High Court of Australia in which the expectation was held by a committee, and thus individual members of the committee could not sue on it.[188] Many cases require reliance,[189] and this assumes knowledge. High authority supports the proposition that the undertaking must be clear and unambiguous.[190] These cases certainly assume the undertaking must be made to the person concerned, although logically this is not needed. The applicant in Ng Yuen Shiu was not present when the statement was made, but was clearly part of the class to which it was addressed and learnt of it. However, Sedley LJ has indicated that personal communication may be relevant. In Begbie he notes the key letter was not addressed to the applicant, and although she saw it she never accepted that representation by referring to it.[191] It may be significant that the letter was intended for one person only, and that it is therefore unreasonable for others to rely on that communication. However, the High Court of Australia has ruled that an 'expectation' can be found and enforced even when there is no subjective expectation. In Teoh[192] it was held that by merely ratifying a treaty, without incorporating it, parliament created an expectation. That the Teohs were unaware of it did not matter because the 'expectation' was a reasonable one.[193] Similar decisions have been reached in Haoucher v Minister of Immigration and Ethnic Affairs,[194] Kioa v West[195] and E v Attorney-General.[196] Ruddock may also be in this category.[197] The explanation for the very wide scope of these judgments, except Ruddock, lies in the perception of what legitimate expectations protect. The Australian courts universally perceive legitimate expectation as being merely a form of natural justice,[198] and the ratification is just a matter that must be taken into consideration. The 'expectation' of the applicant is actually irrelevant. Similarly, Thomas J recognised that the legitimate expectation upheld in the High Court resembled a relevant consideration.[199] This approach is then consistent with uncontroversial New Zealand cases where it has been suggested that international obligations may need to be considered.[200] On this view, legitimate expectations form part of the emerging duty of fairness[201] and the circumstances giving rise to them are simply mandatory considerations.[202]

The competing view of legitimate expectation, in which substantive remedies are available, properly requires actual awareness of the undertaking. Detriment also seems to be an essential circumstance. It is arguable that policies and guidelines create duties irrespective of knowledge [203] or detriment. However, when there is a deviation from the existing policy the courts have upheld the legitimate expectation thereby created. This favours those who are misled, and generates inequality between otherwise identical applicants. Thus, some limits are required and detriment seems a reasonable requirement in order to prevent applicants receiving windfalls.[204]

A Substantive or Procedural Protection?

Substantive remedies are available in England and New Zealand, but not in Australia and Canada. Lord Denning conceived the doctrine as providing procedural remedies only.[205] Thus, an assurance merely creates the duty to have regard to that assurance when making a decision,[206] or to allow the applicant to make representations.[207] Later cases have grafted substantive remedies. These hold there is a binding obligation that can only be overcome by proving an 'overriding public interest'.[208] The effect is almost as strong as that provided by private contracts.[209] The situation is complicated because the expectation can alter the range of rights available, from procedural to substantive protection.[210]

The House of Lords clearly favoured substantive remedies in Preston and Matrix-Securities, although the findings are obiter as there was no legitimate expectation. In Re Findlay, the House upheld a legitimate expectation, but found the expectation was only that the decision would be made in the light of whatever policy was in place at the time ofthe decision.[211] However, it seems an expectation can only be defeated in special circumstances, even once the policy is changed.[212] Although the House of Lords has not enforced a substantive expectation, the Privy Council gave effect to the content of a promise in Ng Yuen Shiu. In that case the promise was of procedure, and this has led some to conclude that it only provided procedural protection,[213] but this neglects the fact the promisor was required to do what was promised, not merely provide an opportunity for the applicant to explain why he should receive the benefit of the promise. A number of lower courts have enforced substantive expectations.[214] In a New Zealand context the Privy Council has said that:

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.[215]

The Court of Appeal held in Steelfort that 'ordinarily the Department will not be free to depart from the arrangement' .[216] The Court was clearly leaning in towards substance in Thames Valley,[217] and although Richardson J was strongly opposed to the concept in Bouzaid,[218] the other justices[219] were less definite. Significantly, Richardson P was later part of the unanimous full court decision in Steelfort. Thomas J has found for substantive rights in cases where the majority has rejected the case on the facts.[220] The High Court has generally preferred the view that a 'legitimate expectation is an expectation as to procedure',[221] but Court of Appeal authority to the contrary has not been cited.

The High Court of Australia has been reluctant to adopt this position. In Quin Mason CJ conceded 'there may be some cases' where substance was protectable but was clearly doubtful, and Brennan J categorically rejected it.[222] Kurtovic held that it merely strengthens procedural fairness, incorrectly dismissing Khan as procedural.[223] It has been suggested that Teoh[224] represents a move towards substantive rights,[225] but this seems doubtful, since it only created a right to a hearing and substance is contrary to all Australian authority.[226] Canada has also avoided substantive rights. Sopinka J, on behalf of a unanimous court, held that a contract between the state and a province did not create substantive rights,[227] although there was a right to consultation. He argued that there was no authority in Canada or England to the contrary.[228] The basis of this decision is that the applicant sought to interfere with the introduction of legislation, but the Court does not appear to restrict its decision to that.[229]

Legitimate expectations should not receive substantive remedies. The courts have struggled to fix any logical limit for the doctrine, and are undecided as to whether detriment is required or not. If detriment is required, it is hard to see in what way legitimate expectation would differ from estoppel. There has been some judicial confusion between the two doctrines as it is.[230] In Coughlan Woolf MR suggested that substantive rights will flow where there is the 'character of a contract',[231] but such cases would probably be covered by estoppel or contract in any case. Coughlan itself is based on reliance,[232] which is the language of estoppel. The similarity has been noted elsewhere.[233] Yet, if detriment is not needed, the doctrine becomes very broad and excessively generous. Where there has been no harm, there is no need for a remedy.[234]

It seems improper to allow administrative law concepts of fairness to provide the same remedies as are available to people who actually suffer a legal wrong.[235] Legitimate expectation is a species of judicial review,[236] and conventional judicial review remedies should be applied. Indeed, Forsyth argues the action must lie in public law because legitimate expectations are not rights.[237] This would seem to militate against his argument that substantive remedies are required. Moreover, the argument that substantive remedies are necessary[238] is incorrect. The prime example is Ruddock[239] in which activists were subjected to phone tapping in contravention of policy. However, in that case the decision could not be undone, and damages for invasion of privacy[240] would seem more appropriate. The cases of immigrants are harder to dismiss,[241] but where there is detriment estoppel would normally cover the injustice sufficiently.[242] Merely bringing the case under legitimate expectation is no guarantee of success in any case, for a legitimate expectation cannot defeat a public duty.[243]

It is certainly true that legitimate expectations will often be of results rather than processes, and that these can be thwarted if the authority is not bound by them, but only has to give a hearing.[244] But the reluctance to give effect to these expectations has a solid constitutional basis — courts feel that the expectation fetters the discretion of the authority, and that the court will be reviewing the decision on its merits.[245]

Should there be Such a Cause of Action?

Estoppel and legitimate expectation raise similar policy issues. The primary concern is that both doctrines strip authority from public bodies in a way unauthorised by public law. In particular, the doctrines risk fettering the discretion and allowing review on the merits of a decision. The courts have failed to resolve these criticisms, and it is essential to ask whether either doctrine should be applied.

Fettering Discretion

The most fundamental objection to a substantive view of legitimate expectation and estoppel is that it fetters the discretion of the decision maker.[246] If legitimate expectations create substantive rights, there is a fetter. This position has led a number of courts to conclude that such rights are merely procedural.[247]

Substantive remedies are justified in two ways. One approach is to argue the authority will be judging its own case if substantive remedies are not available.[248] However, if the policy change is lawful there is nothing for it to judge. Alternatively, it is argued that frustrating a legitimate expectation is an abuse of power.[249] However, judicial review does not provide substantive remedies, and the claim that 'an unfair action can seldom be a reasonable one'[250] is wrong if unfairness is merely associated with misfortune or disadvantage which frequently results from sound decision making.[251] If unfairness relates to unequal treatment existing remedies are adequate and the potential scope of the fetter is much reduced. This weaker version is certainly less objectionable.

Fettering is a problem because it can force a public body to abide by bad advice.[252] It may be possible to limit this risk by requiring a certain level of formality,[253] but it is difficult to arrive at an appropriate formulation.[254]

Reviewing the Merits of the Decision

Forsyth argues merit is not relevant to the review of decisions because the courts are not concerned with whetherthe decision is agood one, but whether it meets the legitimate expectation,[255] which can only have been created by a prior (lawful) undertaking. However, merit is relevant because the courts examine the public interest.[256] Woolf MR acknowledged this in Coughlan:

We consider that it is for the court to decide an arguable case whether such a judgment, albeit properly arrived at, strikes a proper balance between the public and the private interest.[257]

It is doubtful that the courts can make such assessments.[258] The review will produce inequalities between equally qualified applicants,[259] of which the court will often be entirely ignorant, and may disadvantage the community.[260] It also 'maximises uncertainty'.[261] Where the expectation is that an existing policy will be applied, there is no injustice, even though another person might not receive the benefit of the policy.[262] The question is harder where the assurance creates an anomalous exception to the existing policy. Yet, even here, there are some cases where a remedy is appropriate. This will naturally depend on the weight of the detriment and the nature of the public interest.

Stultifying Policy

The fear that policy development would be hindered[263] has been exaggerated, because a policy can be changed.[264] Those who have relied on the old policy may be entitled to have their case considered as if the old one applied,[265] unless there is an overwhelming public interest, but this proposition cannot significantly undermine new policies unless a very wide class is entitled to claim, and so far no such case has come to court.[266] However, no practical class restriction has yet been formulated.[267] There is no intrinsic reason why only small classes should benefit.[268] The best distinction is to allow only those who suffer meaningful detriment to recover, although this blurs the boundaries with estoppel.

Is the Doctrine Needed?

Legitimate expectations will often be protected by other remedies. Legitimate expectations may apply in five general situations. One may be promised a specific result;[269] be told of an incorrect 'fact';[270] reasonably expect an existing policy to be continued;[271] be misinformed as to which policy is in place;[272] or not receive the benefit of a policy that is in force .[273]

In the first four circumstances negligence and estoppel already cover the ground in most cases, and where they do not, there is no policy need to put a greater burden on public bodies than on private ones. In fact, this is contrary to the normal assumptions as to how courts should treat public bodies. Furthermore, extending substantive protection to these situations would dramatically increase the circumstances in which specific performance would be granted, and thus put the public sector at a distinct litigation disadvantage when compared to the private sector. The fifth situation is already covered by wide doctrines of judicial review and misfeasance. Legitimate expectation's utility will be limited here in any event, since if the body had a good reason for not applying the policy, the expectation is unlikely to have been legitimate. If the body did not have a good reason, it will probably have acted unreasonably and judicial review can provide an adequate remedy.[274]

Legitimate expectation is a useful doctrine when confined to traditional judicial review remedies. However, by extending its scope to cover substantive remedies, the courts have dramatically increased their own ability to review the executive and control the way it exercises its functions. They have done so without providing any convincing legal justification. In these circumstances, it seems inappropriate to continue with the doctrine. This is particularly so once it is realised that legitimate expectations often cover the same ground as established private law doctrines, but add a more potent remedy.

IV. Estoppel

The Crown derives authority to act from two sources. Where the authority is derived from statute, or exercised in relation to some statute, the terms of the statute are pre-eminent and no estoppel will apply if it defeats the statute. Where the authority is exercised by force of the Crown prerogative it appears estoppel can apply. Separating the two sources is to some extent arbitrary, for a prerogative statement will often touch on areas of statute; nevertheless, it is a distinction that needs to be made. It seems reasonably settled that an estoppel can be applied where it will not contravene statute (or other public duty), where there is a clear undertaking and detriment. There is thus considerable similarity with legitimate expectations, a link made by both courts[275] and authors.[276]

Estoppel of Prerogative Powers

The prerogative is a power to be used in the public interest, and it is unclear whether this power can be fettered. Surprisingly, there has been little judicial analysis of the position. Logically, estoppel should apply in every case where contract is possible, but substantial authority throughout the Commonwealth opposes applying estoppel to the prerogative.[277]

Most recently, Hammond J has held that the Crown 'cannot be estopped...even though this may work some injustice to a private individual',[278] and even Lord Denning has found that a proper use of the prerogative would not found an estoppel.[279] Canadian[280] and Australian authority supports this approach. In Quin, Mason CJ argued the policy against fettering statutory powers applied in every case where 'they involve the making of decisions in the public interest'.[281]

However, Mason CJ did note that estoppel was acceptable where it would not 'significantly hinder' the discretion, and that individual justice was part of the public interest,[282] and Toohey J in Verwayen found that waiver could apply since it 'offended no statutory provision.. .and no rule of public policy'.[283] Verwayen involved the waiving of Limitation Act 1958, but the waiver was not a power created by statute, nor for the exclusive use of the Crown. It seems proper to characterise this case as an exercise of the prerogative. Mason CJ concluded that government involvement 'is not in this case a point of distinction'.[284] Although Toohey J argued the case based on waiver, his reasoning is consistent with estoppel arguments: waiver 'offended no statutory provision.. .and no rule of public policy' .[285] Gaudron J, also arguing in waiver, held that the case should be treated just as 'proceedings between subject and subject are'.[286] In fact, a number of cases have applied estoppel, leading several authors to claim that the prerogative can be estopped.[287] Several Privy Council decisions apply proprietary estoppel,[288] and acceptance of rent has deprived the Crown of the right to evict.[289] In Robinson v State of South Australia, the Privy Council noted 'it would derogate from the King's honour to imagine that what is equity against a common person should not be equity against him'.[290] In Plimmer v Wellington Corporation[291] action by the Crown, in requesting a person to make improvements to a wharf on Crown land, created a compensatable interest in the land when the Crown asserted its ownership. The Court of Appeal appeared to apply normal principles in West Coast RC v Attorney-General,[292] while rejecting estoppel on the facts.

Neither case addressed the question of fettering the prerogative. In Robertson v Minister of Pensions[293] Lord Denning found an estoppel barring the Ministry from disputing the cause of the plaintiff’s injuries and subsequently relied on that judgment in statutory estoppel cases. But Robertson was rejected by the House of Lords in Howell.[294] However, there are two inherent difficulties in prohibiting estoppel. First, the prerogative can be bound by contract.[295] There can be no objection to applying estoppel to the same subject matter, at least where that results from contractual negotiations. Secondly, if estoppel only arises in a statutory context, it would be necessary for the statute to explicitly authorise the fetter. If the statute did not authorise the fetter, the Crown must be acting from some other source of power (the prerogative) and this could not give rise to the estoppel, even if it was not contrary to the legislative scheme. As discussed below, the courts appear to have preferred to allow estoppel where it will not defeat the statute, even where a statutory body has not had the power to make the concession in the first place.[296] There is no good reason for granting the Crown, with access to prerogative powers, an additional exemption that is not available to other public bodies. It is also unnecessary to prohibit all estoppels. Some must bind the Crown, for example issue estoppel.[297] Furthermore, it may be that the public interest is generally better served by upholding estoppels in individual cases except where there really is some pressing public interest at stake, as suggested in JL Holdings,[298] although determining the public interest is an uncertain process.[299] Where effecting the undertaking itself will cause difficulties, compensation is still available.[300]

A further argument, that estoppel cannot operate to extract revenues without parliamentary consent,[301] is much too narrow. Contracts will bind even where statutory authority is lacking, but may be unenforceable if the allocation of funds does not eventuate.[302] Estoppel should be no different, where the subject matter of the estoppel relates to things within the Crown's authority.

If it is true that the prerogative cannot be fettered by estoppel, this may provide aprincipled approach forthe application of legitimate expectations. Since CCSU the prerogative has been reviewable in public law, so legitimate expectations could apply even where estoppel did not. The English courts appear to have used legitimate expectation to allow estoppel concepts into this area by awarding substantive remedies, but have also applied the substantive doctrine to statutory powers where estoppel is accepted as permissible.

Estoppel of Statutory Powers

Powers exercised pursuant to a statute may attract estoppel where that is consistent with the terms of the statute and the other elements of estoppel are present. Manifestly, estoppel cannot apply to acts that are beyond the ability of the authority, for this would legitimate unlawful power.[303] It is therefore necessary to have a permissive statute,[304] show detriment and a clear representation.

Permissive Statutory Regime

Where finding an estoppel is consistent with statute, the mere fact that the party being estopped is a public body will not be a distinguishing feature. However, statutes may be read strictly to disallow an estoppel. This is well illustrated by the Canadian case Maritime Electric,[305] in which the public authority significantly undercharged a company for electricity. The Privy Council found that the authority was entitled to demand back payment, even though the company was in no position to recover the charges, and had relied on the costings.[306] The case was reconsidered on facts that were 'identical' in Hydro Electric.[307] In both cases, the legislation made it illegal to sell electricity at the rate it was actually sold. However, in Hydro a defence was provided for inadvertent errors and no express duty was placed on customers to pay the standard rate.[308] The majority held that in these circumstances it was not inconsistent with statute to find an estoppel. The test adopted was whether the estoppel would 'nullify the statutory provision':[309]

A statute can only affect the operation of the common law principle of restitution and bar the defence of estoppel or change of position where there exists a clear positive duty on the public utility which is incompatible with the operation of those principles.[310]

Thus, estoppel will apply unless it is inconsistent with statute.[311] Express authorisation by statute to bind the authority is not needed. This approach seems well established. Estoppel has been rejected where the statute was 'unconditional',[312] and where it would 'repeal' the statute.[313] North J has found that as the statute permitted a power board to charge at any rate, while requiring equality of treatment, there had been no breach, especially as the nominal charge had been the same and was merely mismeasured.[314]

Estoppel therefore applied as it would not 'nullify' the statute.[315] Other New Zealand cases have applied estoppel where that occurred in 'furtherance of its functions',[316] or where it would not undermine statute.[317] Khouri is particularly interesting, because representations made in ultra vires contractual negotiations could not found estoppel because this would offend statute[318] by giving effect to an ultra vires contract.[319] However estoppel was applied to subsequent representations which were not made in a contractual setting and to which the statute was thus inapplicable.[320] The importance of inconsistency with statute is demonstrated by the Court of Appeal which, following a statutory amendment, reversed its view on whether the Commissioner of Inland Revenue could be estopped,[321] and earlier explicitly distinguished English cases because of the more permissive regime operating there.[322] English[323] and Australian[324] authority is consistent with this approach.

There may be a limit where estoppel would hinder the discretion unduly, but it is not clear in what circumstances that would apply.[325] The position seems no different to that adopted with respect to legitimate expectations. Both operate where to do so would not frustrate statute, although estoppel is discussed in terms that give the court less discretion, for the wider public interest is not so dominant.

Nature of the Representation

There must be an undertaking of sufficient clarity[326] which is intended to affect the relationship of the parties.[327] There is little discussion of what sort of representation is needed, and no distinction has been drawn between that sufficient to create a legitimate expectation and that required for an estoppel. It seems likely that the same rules as apply to estoppel between private persons would apply — that is that there be a 'clear and unequivocal'[328] assertion, although contractual clarity is unnecessary.[329] Thus, several cases have been rejected for lack of clarity in the representation,[330] and representation by conduct was considered by McKay J in Brierley Investments.[331] Promises are less likely to lead to estoppel than representations of fact, because it is less reasonable to rely on promises.[332] If the promisee should have known the promisor could resile, there will be no estoppel.[333]

The most difficult question in this area is whether the representation must be made by someone with the power to make such representations.[334] A number of authors suggest that ordinary rules of agency apply,[335] but this would seem to legitimate unlawful expansions of powers.[336] In Khouri Elias J suggested that an estoppel would bind if the representation was not ultra vires the council, even if it was ultra vires the officer making the representation, so long as there was ostensible authority[337] and the estoppel would not defeat statute.

Detriment

Unlike legitimate expectation, all estoppel authorities require detriment.[338] However, the level of detriment needed is uncertain. Although the standard is unconscionability,[339] this is an inherently slippery concept.[340]

The first aspect to consider is types of loss. Clearly, financial loss is detriment but can normally be remedied through compensation,[341] although there may be some cases where this is not possible.[342] The High Court of Australia has expressed a preference for financial remedies where possible.[343]

Non-financial matters can also constitute detriment. Thus, an irrevocable change of position may be detriment even if it does not, of itself, produce financial loss.[344] Expectation loss will rarely be compensatable.[345] Psychological stress can also amount to detriment.[346] In Verwayen, Deane J found the expenditure of money and time relevant but 'far more important, he subjected himself to the stress, anxiety and inconvenience' of bringing a suit.[347] These elements seem to come very close to tort concepts,[348] for stress cannot be an act of reliance. At best, stress can only be a matter going to the unconscionability of not enforcing the promise. If Verwayen is correct, detriment will often be found. There is no guidance as to how much stress or inconvenience is required, or even whether it needs to be reasonable. In fact, the Court in Verwayen made no attempt to ascertain how much stress was suffered by the plaintiff. Probably compensation is appropriate so long as the acts of reliance causing the stress were reasonable ones.

Normal estoppel principles apply,[349] so that loss incurred that is not in reliance on the statement,[350] or after the true position has become known,[351] will not found an estoppel. Rootkin held that missing the deadline to appeal a school allocation was insufficient where there was little chance of success,[352] whereas in Tay the certain loss of access to the Malaysian public school system constituted detriment, although no estoppel was applied. In Brickworks v Warringah Corporation estoppel was completed by reliance; the fact that reliance was profitable before the consent was reversed was irrelevant.[353] In Rubrico Lee J suggested that estoppel might apply because re-entry permits were granted after immigration authorities became aware of the pertinent facts, but indicated a need for detriment.[354] It must be assumed from this that leaving the country (thereby accruing expense and risking reconsideration of her status) was insufficient. The difficulty in applying concepts of unconscionability to public bodies is that the body will normally be able to point to a public interest justifying its breach. While this may produce real hardship to the individual, unconscionability is a global concept, and it is surely not unconscionable to resile. The courts have been caught between two equities, and appear to have taken the approach that where it would be inequitable to allow the injury to go uncompensated, but unjust to require specific performance, the appropriate solution is damages.[355]

V. Enforcement of Promises in Negligence

In general, normal negligence principles apply to public bodies.[356] It is necessary to establish a duty of care, breach and harm. The courts must also assess whether there are any policy reasons for excluding liability. In relation to public bodies, the policy inquiry is particularly relevant. The dominant approach has been to hold public bodies liable for operational activities but not for policy decisions.[357] Although this is a very difficult distinction, and has been rejected in some cases,[358] the underlying sense of the distinction has been maintained.[359] With respect to this paper, it is only relevant to consider the liability of public bodies as far as this relates to promises of future conduct.

Liability for Undertakings

Since Hedley Byrne & Co Ltd v Heller & Partners Ltd[360] negligent statements can lead to damages even if the only loss is economic. Liability will arise only where reliance on the statement is both foreseeable and reasonable, and where a special relationship exists between the recipient of the statement and the maker of it.[361] This is normally taken to mean the speaker must know that the statement is directed to a specific class[362] for a known purpose.[363] However, it no longer seems that the defendant must claim special expertise or that the information be given in the course of professional duties.[364]

Liability can attach for failure to execute a promise, even where not accompanied by consideration. The leading case is Meates v Attorney-General,[365] in which the Court of Appeal held the government liable for a failure to implement promised economic relief to a struggling company. It was held that the plaintiff had relied on the promise by not applying for receivership. In McDonald v Attorney-General a promise by the wheat board that it would accept wheat of a certain quality also created liability, and in Unilan Holdings Pty Ltd v Kerin[366] the Federal Court of Australia found that the minister owed a duty of care in making statements regarding the future exercise of his powers. In W v Essex CC[367] plaintiffs were permitted to sue for breach of a promise (made to the plaintiffs' parents) not to place sex offenders with the adopting family. In Parramatta CC v Lutz[368] a council was liable for not performing its promise to remove a fire risk. Actions have also been brought in the private sphere, and the applicability of the action has not been doubted.[369] It is equally clear that the promise is not to be read as a guarantee.[370] Tort only requires 'reasonable care', so that if a reasonable effort is made to effect the promise and fails, there will be no liability. Nor will performance of the promise necessarily produce the result expected by the promisee.[371]

The statement must be sufficiently clear to justify any reliance.[372] Thus, a proposed planning document was never more than 'an expression of present intention and future expectation' with no warranty that it would be 'continuously and inflexibly applied in the future'.[373] However, a sufficiently clear undertaking would bind.[374]

The cases do not make clear the basis on which liability rests. This has led Todd to wonder whether a promise can ever really be negligent.[375] It is certainly necessary to establish the foundation for the action, and the best way to do this is to link it to the undoubted heads of negligent representation of fact,[376] and negligent advice.[377] A promise is subtly different to either of these, but is similar to both.

It is possible to rest liability for promises on four overlapping notions of duty. The first three relate to the circumstances in which the promise was made and the fourth to the performance of the promise.

• The promise may be a misrepresentation of fact, that is that the promisor is in a position to effect the promise[378] or will be in the future.
• The promise represents current intention, misrepresentation of this fact[379] could attract liability.[380]
• A promise may be advice as to how the promisor will act.[381]
• The promise may create a duty to effect that promise in so far as that is reasonable, because the promise induces the plaintiff to rely on the promised action.[382] Although there is no duty to act, an undertaking to do so requires reasonable performance.[383] This duty is sometimes restricted when dealing with public bodies,[384] but clearly does exist.[385] Induced reliance explainsMcCulloch[386] andMeates. Cooke's Jjudgment clearly envisions the creation of a duty to act in accordance with the promise: 'he will be bound to do what is reasonably within his power, consistently with his other responsibilities, to bring about that result' .[387] This explanation was explicitly approved in Shing and fully applied in Westport Sawmilling.[388]

The normal rules of proximity and foreseeability still apply. Thus, it will be unlikely to have any effect in the context of general election promises,[389] where the affected classes are so large and the modes of reliance so various.

Problems with the Rule

The immediate objection to the enforcement of promises is that it undermines both contract and estoppel.[390] Both these criticisms appear well founded but ultimately unconvincing, but an argument that it may place too great a burden on public agencies is compelling.

Undermining Contract

The Privy Council expressed concern with Meates because it required payment of moneys for a promise that was not a contract.[391] There is some force in this view, but tort has long since covered much of what used to be exclusively contractual.[392] Promises not involving payment can lead to damages if not performed.[393] There seems no reason to distinguish promises to pay money from promises of other sorts.[394] All sorts of conduct that can be contracted for attracts liability in tort, and this happens even where a contract is in place,[395] so the absence of a contract cannot be a convincing reason for denying liability in tort.[396] Since an undertaking can carry liability in tort, it is hard to see why a remedy should be denied merely because the undertaking occurred in circumstances where a contract may have eventuated. This does not mean that every pre-contractual negotiation will carry liability in tort, for the undertaking may not be negligent or the reliance may not be reasonable. Often it may be unreasonable to act as if there is a contract when there is not.

In Shing v Ashcroft Cooke J held that promises were to be enforced in contract but certainly permitted damages for foreseeable loss flowing from reasonable reliance on an undertaking. This is because a promise can be part of the duty of care.[397] Cooke J did regard the fact that Shing concerned contractual negotiations as distinguishing Meates,[398] but nevertheless applied tort principles to the case at hand and failed to find negligence on the facts.[399] This does trespass on contractual territory, but is justifiable given the modern relationship between tort and contract.

Undermining Promissory Estoppel

A similar difficulty is posed by the apparent undermining of promissory estoppel and its arguably more stringent requirements, particularly the need for unconscionability.[400] However, several cases have considered both causes of action, and have not suggested the relationship between the two was problematical. Thus, in McDonald Holland J awarded damages in estoppel but indicated he would have found negligence had it been required,[401] and Westport Sawmilling found liability in estoppel and negligence.[402] In Herd Hansen J found no cause of action under either head because there was no 'unequivocal undertaking'.[403] The courts have shown a willingness to restrict the promises that can be enforced to categorical ones.[404] This clarity combined with the requirement for reasonable reliance will mean that negligence will rarely be available when estoppel is not. Todd suggests that estoppel covers the ground adequately and that there is no need to import tort duties into this field,[405] but it is well established that negligence includes statements covering facts and advice. A promise is a form of advice as to how the promisor will act, and should therefore be covered, especially as advice as to how third parties will act can attract liability.[406] It may be that where the promise is of a contractual or economic nature tort should be excluded. However authority suggests otherwise,[407] and it seems inconsistent given that tort normally applies to economic matters. A rational basis for the distinction is hard to articulate. It is unsound to allow recovery in tort for a failure to remove a fire risk causing physical loss,[408] but deny recovery for a failure to provide insurance[409] or register a mortgage[410] causing only economic loss. It may be that liability can be excluded purely on policy grounds, for example undermining existing heads of liability,[411] but this is probably not warranted. Estoppel is normally used to protect financial losses and there is no doctrinal reason for excluding tort from this area alone, especially given the possibility of mixed losses.

The cases so far decided seem to suggest the result will be the same whether the case is argued in estoppel or negligence. This may not always be so, for the doctrines are based on different concepts. So when a public body exercises due care at the time of a promise but even exercising due care cannot effect the promise, there will be no negligence.[412] However, the change may leave a plaintiff in an unconscionable position and thus warrant an estoppel. Likewise, an action can be negligent without being unconscionable.

Burdening Public Bodies

A major problem with the promise cases is that they come very close to interfering with legitimate policy and place a significant burden on the public. Interfering with policy was a concern particularly evident in the judgment of Brennan J in San Sebastien, but is not reflected in later judgments. Meates is particularly apposite. The entire subject matter of the promise was highly influenced by policy concerns, as the Court of Appeal recognised,[413] but only Cooke J expressed any concern with inhibiting decision making,[414] and found a duty nonetheless. The question was addressed in Unilan Holdings where Lockhart J argued that the executive could not be fettered, but that this did not stop legal consequences.[415] This argument is reminiscent of that adopted in Newfoundland,[416] but ignores the fact that anyone may act negligently so long as damages are paid. If tort law has any deterrent value it must act as some sort of fetter. It may be that this issue is adequately dealt with by examining normal tort principles. If the policy change is motivated by genuine policy concerns this cannot be negligent, and reliance will only be reasonable in some circumstances.[417] Matters of proximity are also likely to restrict the potential liability.[418]

Public bodies have not been negligent in setting policies affecting road maintenance,[419] discontinuing an elk feeding programme[420] and allocating funds to inspection regimes.[421] The courts should not apply radically different principles to the question of public body liability for promises than they do in other spheres of negligence. This is particularly so when dealing with negligent words — a field in which courts have often remarked on the greater capacity for words to do ill beyond which the speaker could have foreseen. [422] This usual caution has arguably been forgotten in relation to words spoken by public bodies. However, there is no objection to applying tort principles to non-policy areas, so long as the standard of care is not pitched too high. [423] It is not possible to present a truly convincing reason why promises should never attract liability, and what authority there is supports the idea of a duty. Once this is realised, there is no objection to applying a duty to public bodies so long as broader policy factors are borne in mind. Thus, the same concerns that have exercised the courts in protecting public bodies from excessive vulnerability for negligent advice and negligent conduct should be employed with rigour to negligent promises.

VI. Dealings With Prosecution Officials

It is particularly important to know to what extent public officials are bound by undertakings in the field of criminal prosecutions. Two broad situations occur. The first involves an explicit bargain, as where a suspect is offered immunity or other benefit in return for cooperation. The second is where there is no bargain but the prosecution fails to raise an issue at the appropriate time, and later seeks to revive the issue.

Express Bargains with Police or Prosecution

The courts have expressed concern at the practice of making bargains with criminals,[424] but are nevertheless generally prepared to enforce the bargain. Thus, plea bargains have been upheld even when the sentence is excessively lenient,[425] and promises not to prosecute have resulted in stays of proceedings[426] and quashed convictions.[427] This area of law appears to have little relationship to other areas in which state promises are enforced, as the decisions are based on the inherent jurisdiction of the courts to supervise the procedures of the court,[428] rather than general notions of estoppel, contract or legitimate expectation.[429] Nevertheless, it is notable that when they do intervene the courts always, in this context, grant substantive relief. The courts are not involved in granting relief where there is merely a sense of grievance. The primary concern is with the abuse of the procedures of the court, rather than unfairness to the defendant per se,[430] although unfairness can be so manifest as to be an abuse.[431] Bargains may be analysed closely, with almost contractual vigour. So, in R v Vialoux[432] it was held the immunity deal was not concluded until the police could tell whether the suspect was truthful; in Wv R[433] the immunity was not upheld because the witness was unreliable, and in R v Sproule[434] there was no breach because a term of the promise not to prosecute was that the information had to lead to an arrest. The most severe example of this concerned a public promise by the police not to prosecute which was held not to bind the Ministry of Transport because the suspect was never led to believe that no charges would be laid by any state body.[435] In comparison, in R v Georgiadis[436] the court enforced a promised immunity even though the suspect was later discovered to be actively involved in the crime rather than just present at the crime as originally believed. Consistent with the contractual approach, promises have been disregarded where the promisor lacked authority, or where the promise was illegal. Thus, purported pardons have been read down where they have been given improperly[437] or attempted to apply to future crimes.[438] Even here, however, it has been suggested that the courts might provide some protection to recipients of a promise to receive a pardon.[439] In Hewison v Attorney-General,[440] Williams J applied normal contractual standards and found the police in breach of their contract with an informant. It was important in Hewison that the plaintiff had suffered detriment and provided valuable consideration.[441]

The contractual analogy is not entirely accurate. In several cases courts have permitted the Crown to change its position, as breach will not always be an abuse of process.[442] Thus, in McQuire and Porter[443] the Attorney-General was allowed to appeal a sentence, despite the assurances of the prosecution counsel, in part because it was believed that the defendant would have pleaded guilty in any case. In Attorney-General v Fox[444] charges were allowed to be re-laid primarily because there was no prejudice to the defendant's position. In R v Crneck[445] a prosecution was stayed because the deal caused a co-accused to give slanted testimony, not because breaking the promise was unfair.[446] This case seems representative of a much stricter Canadian approach where relief is only granted in the 'clearest of cases',[447] despite earlier authority that conforms with the rest of the Commonwealth.[448] Two English cases apply legitimate expectation principles to prosecution conduct,[449] without undertaking any examination of the legitimate expectation rules. Legitimate expectations must arise, and there can be no reason for excluding the principle from this area of state activity. Choosing whether to protect the expectation would then be a matter of discerning the public interest, which is necessary when considering abuse of process anyway. [450] There is no logical reason for not applying legitimate expectations. However, courts may be reluctant to use legitimate expectation as there is an alternative remedy, and employing it may embroil courts in technical discussions as to the precise scope of what is still a controversial doctrine. For example, under legitimate expectation it is arguable that promises could not bind unrelated departments; yet this has not generally been problematic for courts applying their inherent jurisdiction.[451]

It now appears settled that it does not matter which branch of the executive makes the promise, for all branches will be bound. The leading case in this regard is Attorney-General v Chu Piu-wing,[452] where undertakings by a special anti-corruption committee were held to bind the police. Dean justifies this rule because the effect on the recipient is the same regardless of who makes the promise, and the courts are concerned with abuse of procedure rather than strict issues of authority.[453] Most recently, Peverett has declared that 'for this purpose the Crown and its agents are indivisible'.[454] This declaration is consistent with the ability of investigative bodies to grant 'use immunities' for witness testimony.[455] However, there is some authority in the contrary direction. Several cases have held that since the prosecution and the Attorney-General are separate entities, the prosecution cannot bind the Attorney-General not to appeal an excessively light sentence.[456] Bloomfield held that although the prosecution was not the Attorney-General, it must have at least ostensible authority to bind the Attorney-General.[457] However attractive the result in Bloomfield, its argument must be wrong. Any criminal lawyer would be expected to understand the distinction between branches of the executive and this knowledge must be imputed to the defendant. The approach in Dean is preferable, as it focuses on whether there is an abuse rather than on technical questions of authority. In England, the Attorney-General has recently released guidelines on prosecution conduct, emphasising that prosecutors should always emphasise that sentences can be appealed.[458] The impact this is likely to have is uncertain. On the one hand, it demonstrates that the Attorney-General believes that prosecution conduct is not binding but alternatively it is arguable that a failure to disclose would enhance the argument for abuse of process.

Acquiescence by Prosecuting Authorities

There is also the common situation where the prosecuting authorities fail to exercise a right, but without demanding any reciprocation. This most commonly occurs where counsel fail to contest sentencing, or themselves provide inadequate advice to the court. In these cases, the courts are far less willing preserve the position. Rather, the Crown position is regarded as one relevant factor in the Court's discretion.

Acquiescence at sentencing is well demonstrated by R v Tipene,[459] where Crown counsel recommended a sentencing regime that was accepted by the trial court, but an appeal was successful because of the 'manifestly inadequate' sentence.[460] This approach has been applied elsewhere,[461] although the courts are careful to retain discretion to bar the appeal. This discretion has been used in several cases. In Rona v District Court of South Australia the prosecution was held bound to the charges it had 'categorically' confirmed were the only charges relied upon.[462] Correspondingly, in Everett v R[463] the High Court of Australia refused the Crown leave to appeal and indicated that this should rarely be given.[464] The most startling example of acquiescence not binding the Crown is R v Skanes,[465] where authorities were permitted to prosecute a witness for perjury even though they knew his testimony was dishonest at the time it was made and did not challenge it.[466] It is hard to draw clear guidelines from the cases. The general rule seems to be that a sentence will not be increased if the Crown does not act reasonably to prevent the error,[467] although a failure by the Judge to ask for a prosecution view on the sentence will go to what is reasonable.[468] Active contribution to the error does not seem determinative,[469] although it has appeared to influence courts in some cases.[470] Likewise, passive acceptance of the sentence has not caused courts to allow the appeal with any greater regularity.[471] The ambiguity results from the role policy issues play which produce highly fact specific cases, where the degree of actual detriment to the individual and the size of the error are more important than the actual conduct of the parties. So, in Queen v Wilton[472] there was no abuse of procedure because Crown counsel had been given no warning of the likely penalty. The courts in Qi and Allpass both emphasised that the degree of error was relevant — both cases concerned non-custodial sentences for serious offending.[473] In Fletcher-Jones the court increased the sentence because the Crown approach had been 'entirely misconceived', but still limited the sentence to reflect the hardship caused to the accused by changing the sentence.[474] Decisions upholding an undertaking have also emphasised the discretionary nature of the remedy, so the position taken by the Crown must be weighed even where the judge has 'erred in a fundamental way'.[475]

Discussion

There are strong arguments for not binding the state where there has merely been an oversight at sentencing. There has usually been no detriment, except disappointment, and courts have pointed to the importance of sentencing parity[476] and the idea that justice should not be thwarted through oversight.[477] Alternatively, there is much force to the argument that litigants cannot normally retract a position conceded at trial,[478] especially if the sentence is viewed as akin to punitive damages award. A plaintiff could not appeal an award reflecting that requested, or where no argument was presented for a more severe one. Even errors of fact or law are normally not reviewed on appeal if counsel accepted those misconceptions at trial. Criminal trials should demand a higher level of prosecutorial conduct than is expected at civil trials. There is also the possibility that an estoppel has arisen.[479]

However, the courts must find an abuse of procedure, and where there has been no detriment or deliberate misuse of the system there would not seem to be an abuse. Smellie J has held there will only be an abuse where the defendant is unable to resume his previous position.[480] This approach is too narrow, as it fails to recognise that prejudice to the defendant is not an essential element for abuse of process.[481] The question is simply one of whether reviving a position conceded at trial is an abuse. At least where the Crown was in a position to contest the sentence at trial, re litigating the sentence seems unfair and abusive. Altering the alleged facts of the offending in order to defeat an alibi is an abuse,[482] even though the defendant could resume his position. Conceding matters relating to sentencing should not be any different. Generally, a different position cannot be taken on appeal,[483] although it is sometimes possible.[484] The Crown should have no more leeway, probably less, than the accused.

An interesting point may arise if the sentence passed is actually less than that required by law. Generally, there would be no objection to bringing sentences in line with the minimum requirements of the law, but s 372 of the Crimes Act 1961 only notes that such sentences 'may' be contested. It would seem from this that no special rule need apply. There are sound pragmatic grounds for requiring issues to be dealt with correctly at trial, including the appearance of justice, and the efficient running of the judicial apparatus. It is perhaps in this context that applying concepts of legitimate expectation can be useful, as this could be used even where there was no abuse of procedure.

Where the Crown breaches an agreement, there is a much stronger claim for abuse of procedure. The courts have articulated this in terms of the public interest, although there has been some criticism as to whether such bargains can be in the public interest in the first place.[485] Although merely finding a public interest is not the same as finding an abuse of procedure, Hunter v CC of West Midlands[486] has widened the concept of abuse to include conduct that brings the administration of justice into disrepute, and the application of this to deals with state agents seems unobjectionable.

The abuse is particularly clear where the promise has led to certain conduct at trial, which is then appealed from. Such a situation is analogous to the position that no miscarriage of justice will flow from events the defence did not object to.[487]

Criminal matters are located in a distinct pocket of law, isolated from other issues of state conduct. This is appropriate because of the broad discretion available. However, there can be no justification for depriving applicants of rights they have against the state in other contexts, particularly legitimate expectation. The highly discretionary nature of the jurisdiction renders general principles impractical, but there is a clear recognition that integrity is required by state agents in this field. Thus, aspects of public benefit will be considered, but the courts maintain the right to assess the validity of those claims for themselves. This scrutiny is very different from the incompetence claimed by the courts in assessing the public interest in other fields. It is also significant to note the importance the courts place on granting substantive remedies in this area. This recognises that receiving a fair procedure is not a sufficient protection in all cases, despite assertions to the contrary in other contexts.

VII. Conclusion

The five types of remedies discussed in this paper all derive from very different conceptual bases, yet a certain commonality is discernible. In all cases the courts are concerned about trespassing on the legitimate scope of governmental authority, but regard some level of judicial scrutiny to be appropriate. The discussion in this regard is most clearly enunciated by the courts when dealing with tort and legitimate expectations but is also present in contract, estoppel and, to a much lesser degree, the criminal context.

The task is to establish what factors delimit judicial control. Two factors are crucial. First, courts will provide remedies where doing so will not defeat statutory provisions. This concern is particularly acute in estoppel and contract, but is also given weight in legitimate expectations. Of course, conceptions as to what violates statute do vary somewhat, but the general approach is to require the statute to be prohibitory. However, damages can flow in tort for negligent undertakings not mandated by statute, as shown by the planning cases. Secondly, individual claims will be defeated by the public interest. This element pervades all inquiries, although it is arguably often given less weight in legitimate expectations where the public interest must be 'overriding'.

In some contexts, the courts appear to view the conduct as if the actions concerned private parties. This tendency is particularly evident in contracts with public bodies, where the public interest is scarcely mentioned. In contrast, when the contracting party involves central government functions the public interest is heavily weighed. Interestingly, estoppel against public bodies is closely scrutinised for the public interest. This scrutiny is perhaps justifiable given the role equity plays in estoppel. The public interest dimension is most obviously dealt with in the legitimate expectation and tort cases.

Despite these differences there is a clear trend in all doctrines towards controlling executive power. The balance seems to have been struck between control and government autonomy by focusing on the routine activities of government. Where a wrong is committed in this sphere, the courts will intervene under all heads. However, where the wrong is more intimately connected with policy and actual governance interference is less likely. Legitimate expectation is the most suitable argument when dealing with policy because of its administrative law heritage, but even it will not strike down a policy but will only control the application of the policy.

At a certain level of generality it is possible to suggest five attributes that all remedies require:

• The promise or undertaking must have been made intra vires. There may be some dispute as to what this means, as when officers make promises which they actually lack authority to make, but in general no body can expand its statutory powers. Tort represents an exception to this rule, as does the apparent ability of prosecutors to bind the Solicitor- General. However, the latter case is not truly one of binding, but of the combined conduct representing an abuse.
• The promise will not be enforced if doing so unduly affects the broader public interest.
• The promise must not defeat statute. The current trend is for reading statutes narrowly, particularly in the estoppel context, so the statute will not be considered defeated unless it clearly requires a different result.
• The representation must always be clear.
• There must always be detriment. This element is uncertain with respect to legitimate expectation, but in so far as the authorities demand substantive rights, detriment is required. Contract does not strictly require detriment but needs consideration which can be thought of as a type of detriment, in that it involves a concession of something of value.

In addition to these elements, each doctrine has its specific requirements designed to restrict the ambit of the doctrines, such as proximity, unconscionability and so on. However, there is a strong argument that in the public sphere the remedies have got out of kilter. Thus, in cases where estoppel or legitimate expectation have been argued, the detriment could often have been sufficiently alleviated through tort. This position is particularly so in the early estoppel cases in which parties were put to expense in reliance on a representation that they had appropriate zoning permission. It is a lot simpler to compensate that reliance than to find an estoppel and then attempt to weigh the competing public interests. In fact, more recent estoppel cases have taken to awarding damages. Likewise, the expansion of legitimate expectation blurs the boundaries between public law and estoppel, despite the different theoretical backgrounds of the actions. Given the move estoppel has taken towards negligence, it is not far fetched to suggest that legitimate expectations may one day begin to incorporate tort principles.

The move towards controlling the Crown is to be welcomed. Undertakings by public bodies have the capacity to cause real suffering, and to provide no potential remedy is unjustifiable. However, there is a need not to move too far. Public bodies should not be made to keep promises in circumstances where private bodies are not, especially as there is often a public interest in not honouring the promise. Often compensation will be preferable to requiring the promise to be performed, although this must depend on the nature of the promise, and here again the standard must not be set higher than private bodies. Whether the standard of conduct should be set as high as for private bodies is a difficult question, and depends on the doctrine used. Where legitimate expectation and estoppel are argued, the public nature of the body must be relevant to the equities involved. Indeed, legitimate expectation must be used very carefully for there is no counterpart in private law. Where the action lies in tort policy issues are often likely to lower the standard expected of a public body, but should not do so prima facie. Contract remains the exception; so long as the claim meets statutory criteria, there is no reason for not enforcing the original decision to enter into a contract.


[*] The author is a solicitor practising in Auckland. This paper was awarded the Canterbury Law Review Prize for the best undergraduate Honours paper completed in 2001.

[1] Some cases suggest that statutory authority is necessary for all contracts, for example Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421; Commonwealth v Colonial Ammunition Co Ltd [1924] HCA 5; (1924) 34 CLR 198; Australian Woolen Mills PtyLtd v Commonwealth [1954] HCA 20; (1954) 92 CLR 424, but this is not the generally recognised position: see Aronson and Whitmore,Public Torts andContracts (1982) 187-8; P A Joseph, Constitutional and Administrative Law in New Zealand (1993) 526.

[2] For example, Attorney-General v Barker Bros [1976] 2 NZLR 495, and such rights can be assigned to private parties: Randle v Contact Energy Ltd (25.9.00, Hansen J, HC Dunedin, CP44/98).

[3] State Sector Act 1988 (NZ). England has reached the same conclusion in R v Lord Chancellor's Dept, expNangle [1992] 1 All ER 897.

[4] For example, Ansett Transport Industries v Commonwealth of Australia [1977] HCA 71; (1971) 139 CLR 54; E Campbell 'Agreements About the Exercise of Statutory Powers' (1971) 45 Australian Law Journal 338, 342.

[5] [1990] NZHC 632; [1991] 2 NZLR 323.

[6] For a criticism of this aspect of the decision see Hogg and Monahan, Liability of the Crown (3rd ed, 2000)215.

[7] Westco Lagan Ltd v Attorney-General [2001] 1NZLR40.

[8] For example, New South Wales v Bardolph (1934) 52 CLR 455, 474-5: 'he [the King] never seems to have been regarded as being less powerful to enter into contracts than one of his subjects': see Hogg, Liability of the Crown (2nd ed, 1989) 163; New Zealand Law Commission, Crown Liability and Judicial Immunity, Report 37 (1997) para 19. This doctrine is criticised by Aronson and Dyer, Judicial Review of Administrative Action (1996) 355.

[9] Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623; Ransom and Luck v Surbiton BC [1949] 1 Ch 180; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416; Commissioner of Crown Lands v Page [1960] 2 QB 274; Board of Trade v Temperley Steam Shipping Co (1927) 27 Ll LR 230.

[10] Rederiaktiebolaget Amphitrite v TheKing [1921] 3 QB 500 ( hereafter The Amphitrate).

[11] Aronson and Whitmore, above n 1, 194; Bradley and Ewing, Constitutional and Administrative Law (12th ed, 1997) 847 consider that it applies to all discretions to be used in the public interest.

[12] Commissioner of Crown Lands v Page [1960] 2 QB 274; Board of Trade v Temperley Steam Shipping (1927) 27 L1 LR 230; Buttigeig v Cross (PC Malta) 10/10/1946.

[13] [1994] 1 NZLR 741, 761. (This is clearly obiter since the case concerned the acts of two statutory bodies.) It is also relevant that the contract was found not to be a fetter in any case.

[14] Aronson and Whitmore, above n 1, 197; Joseph, above n 1, 559; Hogg, above n 8, 171; Wade and Forsyth, Administrative Law (8th ed, 2000) 124. It is favoured by Bradley and Ewing, above n 11, 847 and in restricted form by Mitchell, The Contracts of Public Authorities (1954).

[15] Ansett Transport Industries v Commonwealth of Australia [1977] HCA 71; (1971) 139 CLR 54,113; also Robertson v Minister of Pensions [1949] 1 KB 227; Director of Posts and Telegraphs v Abbot (1974) 2 ALR 625.

[16] The Steaua Romana [1944] P 43.

[17] Robertson v Minister of Pensions [1949] 1 KB 227. Note however that Mitchell, above n 14, 30 persuasively argues that it was part of the ratio.

[18] Director of Posts and Telegraphs v Abbot (1974) 2 ALR 625 explains the decision as deciding that no estoppel applies where the undertaking falls short of contract. See also Robertson v Minister of Pensions [1949] 1 KB 227.

[19] For example, Commissioner of Crown Lands vPage [1960] 2 QB 274; Board of Trade v Temperley Steam (1927) 27 Ll LR 230.

[20] CudgenRutile (no 2) Pty Ltd v Chalk [1975] AC 520; Ransom and Luck v Surbiton BC [1949] 1 Ch 180; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rocca v Ryde Municipal Council [1962] NSWR 600; William Cory and Son v City of London [1951] 2 KB 476; Stringer v Minister of Housing [1971] All ER 65.

[21] Joseph, above n 1, 560, 685; Lewis, Judicial Review inPublicLaw (2000) 474. Also, Hamilton CC v Waikato Electricity Authority [1994] 1 NZLR 741; Hammersmith & Fulham Borough Council v Secretary of State for the Environment [1991] UKHL 3; [1991] 1 AC 521.

[22] There is further ambiguity as to whether the statute would have to authorise contracts, or whether the contract would be acceptable where contracting was not inconsistent with the statute.

[23] Joseph, above n 1, 559; Mitchell, above n 14, 55. Even contracts made under statute fetter, albeit with parliamentary authorisation, and so presumably would require express permission under statute.

[24] The Amphitrite [1921] 3 QB 500, 503.

[25] Mitchell, above n 14, 25-6, 54-5 although some special rules applied. Alcock v Cook [1829] EngR 341; (1829) 5 Bing 340; The King vAmery [1788] EngR 183; (1788) 2 TR 515; Attorney-General v Lindergren (1818) 6 Price 287; Thomas vR (1874) LR 10 QB 31; Banker's Case (1695) Skin 601; Windsor andAnnapolis Rly CovR (1886) 11 App Cas 607.

[26] Joseph, above n 1, 560; Hogg and Monahan above n 6, 215. State necessity was rejected in Entick v Carrington [1765] EWHC J98; (1765) 19 St Tr 1030, 95 ER 807.

[27] Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374; Burt v Governor- General [1992] 3 NZLR 672 (CA). Joseph, above n 1, 585-7.

[28] Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374.

[29] Aronson and Whitmore, Public Torts and Contracts (1982) 200.

[30] Petrocorp Exploration Ltd vMinister ofEnergy [1991] 1 NZLR 1 (Cooke and Bisson JJ).

[31] Mitchell, above n 14, 29, 65.

[32] Petrocorp Exploration LtdvMinister ofEnergy■ [1991] 1 NZLR 1 (Cooke and Bisson JJ); Banker's Case (1695) Skin 601; M Freedland, 'Government by Contract and Public Law' [1994] Public Law 86, 93.

[33] For example, Rothmans of Pall Mall v Attorney-General [1990] NZHC 632; [1991] 2 NZLR 323.

[34] An interesting example where this was allowed is Ransom and Luck v Surbiton BC [1949] 1 Ch 180 (CA) when the court held that the statute permitted agreements that were to be enforceable at the suit of the Borough only. However, it was held that the agreement was not really a contract, but a restrictive covenant so that no rights vested in the landholder.

[35] E Campbell, 'Agreements About the Exercise of Statutory Powers' (1971) 45 Australian Law Journal 338. De Smith and Brazier, Constitutional and Administrative Law (8th ed, 1998) 600 argue that certain contracts should either be void or capable of repudiation.

[36] Many writers support damages: Aronson and Whitmore , above n 29, 201, De Smith and Brazier, ibid, 601; Hogg, Liability of the Crown ( 2nd ed, 1989) 171; Wade and Forsyth, Administrative Law ( 8th ed, 2000) 825. Campbell, above n 35, 339 suggests compensation instead.

[37] RederiaktiebolagetAmphitrite v TheKing [1921] 3 QB 500, 503. Seddon, Starke and Ellinghaus, Law of Contract (6th ed, 1992) 187; Halsburys Laws of England (4th) vol 1, para 188. Joseph, Constitutional and Administrative Law in New Zealand (1993) 560.

[38] Ansett Transport Industries v Commonwealth of Australia [1977] HCA 71; (1971) 139 CLR 54, 113 (HCA); Mitchell, The Contracts of Public Authorities (1954) 23.

[39] Aronson and Whitmore, above n 29, 195 point out that The Amphitrite itself was arguably a commercial contract.

[40] Campbell, above n 35, 342.

[41] [1991] UKPC 10; [1991] NZLR 641. This case involved statute but the illustration is a useful one.

[42] De Smith and Brazier, above n 35, 600 argue the Crown should not be bound over matters of 'primary importance' which suggest an operational/policy distinction.

[43] Although Commonwealth of Australia v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 60 ALJR 619 considered whether the function was 'peculiar to government' and Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, 116 suggests that the distinction may apply to estoppel.

[44] See Malcolm Shaw, International Law (4th ed, 1997) ch 13.

[45] Analogies between international law and domestic law cannot be taken very far because the justifications for the doctrines are very different. Sovereign immunity rests on the equality of sovereigns, whereas the fettering argument lies on the idea of the public interest.

[46] For example, Schooner Exchange vMcFadden (1812)7 Cranch 116; The Parlement Belge (1878-79) 4 PD 129; PortoAlexandre [1920] P 30; Baccus SRL vServicioNacional del Trigo [1957] 1 QB 438.

[47] For example, Philippine Admiral [1975] UKPC 21; [1976] 1 All ER 78; Trendtex Trading Corp v Credit Suisse [1982] AC 679; Thai-Europe Tapioca Service Ltd v Government of Pakistan [1975] 1 WLR 1485; ICongresso delPartido [1981] 1 All ER 1964.

[48] Marine Steel v Govt of the Marshall Islands [ 1981 ] 2 NZLR 1.

[49] State Immunity Act 1978 (UK).

[50] Foreign Services Immunities Act 1976 (USA).

[51] See also, Westco Lagan Ltd v AG [2001] 1 NZLR 40; Lumber Specialties v Hodgson [2000] 2 NZLR 347.

[52] Mitchell, above n 38, particularly at 55. However he concedes that the precise limits of this rule could not be defined. He indicates that such functions are 'not limited to the military protection of the state'.

[53] Seddon, Starke and Ellinghaus, above n 37, 187; J Burrows, J Finn and S Todd, Law of Contract in New Zealand (1997) 157, though the latter authors note that intention will be assumed where the subject matter is a simple sale.

[54] John Cooke & Co. v Commonwealth [1922] HCA 60; (1922) 31 CLR 394.

[55] South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130; Reference Re Canada Assistance Plan [1991] 2 SCR 525.

[56] South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130, 154.

[57] Coogee Esplanade Surf Motel v Commonwealth [1944] ArgusLawRp 72; (1976) 50 ALR 363. In West Coast Regional Council vAttorney-General (CA, 253/95, 10.6.97, Gault, Blanchard, Cartwright JJ) 8, the Court of Appeal noted the document relied on was made 'in a relatively casual manner'. Often these cases have lacked enough formality for a normal contract: Placer Developments v Commonwealth of Australia [1969] HCA 29; (1969) 121 CLR 353; South Australia v Commonwealth of Australia (significant details left to Crown discretion); or merely repeated government policy West Coast Regional Council vAttorney-General (CA, 253/95, 10.6.97, Gault, Blanchard, Cartwright JJ) 8 where the court concluded that the third recital to the Forests Accord 'merely summarised a government policy'. Administration of Papua and New Guinea v Leahy [1961] HCA 6; (1961) 105 CLR 6. See D Rose, The Government and Contract' in P D Finn, Essays on Contract (1987).

[58] Seddon, Starke and Ellinghaus, above n 37, 188; Hogg and Monahan, Liability of the Crown (3rd ed, 2000), 213.

[59] CudgenRutile (no 2) PtyLtd v Chalk [1975] AC 520, 536 (PC) (Wilberforce L); Hughes Aircraft Systems International vAirservices Australia [1994] HCA 61; (1997) 126 ALR 1 suggests a greater duty of fairness in tendering.

[60] L Hullier v State of Victoria [1996] VicRp 79; [1996] 2 VR 465, criticised in Hogg and Monahan, above n 58, 232- 3.

[61] [1979] 1 NZLR 1. See also T1T2 Limited Partnership v Canada (1995) 24 OR (3d) 546.

[62] Devonport BC v Robbins [ 1979] 1 NZLR 1,23.

[63] Westco Lagan Ltd vAG [2001] 1 NZLR 40; Comalco Power (NZ) LtdvAG (19.12.86, Heron J, HC Wellington, 404/86)..

[64] Newfoundland vR [1999] 3 SCR 199; Reference Re Canada Assistance Plan [1991] 2 SCR 525. In contrast, see Reilly v The King [1934] AC 176 (PC). This is also the position in Europe: New Zealand Law Commission, Crown Liability and Judicial Immunity, Report 37 (1997), para 37.

[65] Newfoundland vR [1999] 3 SCR 199, para 41.

[66] T1T2 Limited Partnership v Canada (1995) 24 OR (3d) 546. At the time of judgment the bill had not been passed, but there is no doubt that once it became legislation there could be no liability.

[67] ABCv Redmore (1989) 166 CLR 451.

[68] AG (Ceylon) vADSilva [1951] AC 461; Hunter Bros v Brisbane City Council [1984] Qd R326. See also Colin Turpin, British Government and the Constitution (4th ed, 1999) 577.

[69] For example, Petrocorp Exploration Ltd vMinister of Energy [1991] 1 NZLR 1; Hamilton CC v Waikato Electricity Authority [1994] 1 NZLR 741; Birkdale District Electricity Supply Ltd v Corporation ofSouthport [1926] AC 355.

[70] Hamilton CC v Waikato Electricity Authority [1994] 1 NZLR 741; Hammersmith & Fulham Borough Council v Secretary of State for the Environment [1991] UKHL 3; [1991] 1 AC 521; Gore Power Co v Gore DC [1997] 1 NZLR 537. Joseph, Constitutional and Administrative Law in New Zealand (1993) 560, 685; Lewis, Judicial Review in Public Law (2000) 474.

[71] S Arrowsmith, 'Protecting the Interests of Bidders for Public Contracts; the Role of the Common Law' (1994) 53 Canadian Law Journal 104, 115, 124 criticises this approach on the grounds that there is no true bargain, and the proper remedy should lie in promissory estoppel or legitimate expectation. Estoppel does present an alternative possibility, but the principle of a contract to uphold the tender process is well established in New Zealand.

[72] Markholm Construction Co Ltd. v Wellington City Council [1985] 2 NZLR 50;Pratt Contractors v Palmerston North CC [1995] 1 NZLR 469; Gregory v Rangitikei DC [1995] 2 NZLR 208; Blackpool & Fylde Aero Club v Blackpool Borough Council [1990] 3 All ER 25; R v Lord Chancellor, ex parte Hibbit & Saunders (a firm) The Times, 12/3/93; The Queen in Right of Ontario v Ron Engineering 1981 CanLII 17 (SCC); (1981) 119 DLR (3d) 267; Calgary v Northern Construction [1982] 2 WWR 426; Canamerican v Canada (1989) 77 NR 141.

[73] Markholm Construction Co Ltd v Wellington CC [1985] 2 NZLR 50.

[74] Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 146 ALR 1.

[75] Ibid 49.

[76] Markholm Construction Co Ltd v Wellington CC [ 1985] 2 NZLR 50.

[77] Pratt Contractors v Palmerston North CC [1995] 1 NZLR 469.

[78] Ansett Transport Industries v Commonwealth of Australia [1977] HCA 71; (1971) 139 CLR 54, 77.

[79] This appears to presuppose that the legislation clearly requires a discretion to be maintained.

[80] The meaning of 'approval' is ambiguous. Ansett itself concerned an explicit approval, but it appears that what was meant was that the contract be consistent with the statute. Thus, the statute 'may expressly or impliedly amend...the pre-existing law providing for the exercise of the discretion' and the question is 'whether the agreement is authorized by statute, or is prohibited, or incompatible with it' (77).

[81] Aronson and Whitmore, Public Torts and Contracts (1982) 197.

[82] CudgenRutile (no 2)Pty Ltd v Chalk [1975] AC 520, 533;Khouri v Waitakere CC (6.8.97, Elias J, HC Auckland, M 62-94), although minor defects can be overlooked: ABC v Redmore (1989) 166 CLR 451.

[83] Comalco Power (NZ) Ltd v AG (19.12.86, Heron J, HC Wellington, CP404/86); Westco Lagan LtdvAG [2001] 1 NZLR 40.

[84] Newfoundland v R [1999] 3 SCR 199; T1T2 Ltd Partnership v The Queen in Right of Canada (1995) 23 OR (3d) 81. However, in Reference Re Canada Assistance Plan [1991] 2 SCR 525, 559 the court held that applying legitimate expectations to legislation would 'paralyse' government.

[85] Gore Power Co v Gore DC [1997] 1 NZLR 537, 548.

[86] Petrocorp Exploration Ltd v Minister of Energy [1991] UKPC 10; [1991] 1 NZLR 641.

[87] Ibid; DevonportBC v Robbins [1979] 1 NZLR 1.

[88] Hamilton CC v Waikato Electricity Authority [1994] 1 NZLR 741.

[89] Attorney-General v Steelfort Engineering Co Ltd (CA, 143/98, 3.3.99, Richardson P, Henry, Thomas, Blanchard, Tipping JJ) 6.

[90] William Cory and Son v City of London [1951] 2 KB 476; Stringer v Minister of Housing [1971] All ER 65; Placer Developments v Commonwealth of Australia [1969] HCA 29; (1969) 121 CLR 353; South Australia v Commonwealth of Australia; Administration of Papua and New Guinea v Leahy [1961] HCA 6; (1961) 105 CLR 6; Reference Re Canada Assistance Plan [1991] 2 SCR 525, 548.

[91] William Cory and Son v City of London [1951] 2 KB 476; Stringer v Minister of Housing [1971] All ER 65.

[92] See the judgment of Hardie-Boys J at 51.

[93] Reilly v The King [1934] AC 176 (PC); Mitchell The Contracts of Public Authorities (1954) 17.

[94] This allows a principled approach - focusing on the nature of the claimed need rather than the source or type of the contract.

[95] Joseph, above n 70, 559 argues that, because of this, The Amphitrite doctrine is unnecessary.

[96] Commissioner of Crown Lands v Page [1960] 2 QB 274. This case is unusual in that the court found there was no breach, rather than that the breach was justified - but the reason for finding there was no eviction was because the power was used for a public purpose, not pursuant to the contract. It is therefore a case of an independent public interest power (to requisition property) overriding separate contractual rights.

[97] Board of Trade v Temperley Steam (1927) 27 Ll LR 230 (refusal to grant a licence for repair to a vessel chartered by the board); William Cory and Son v City of London [1951] 2 KB 476 (introduction of more stringent bylaws making contract unprofitable).

[98] An example of an agreement explicitly seeking to limit a statutory discretion was Stringer v Minister of Housing [1971] All ER 65 in which a private agreement to limit housing in an area was struck down, although here the contract was truly ineffectual for being ultra vires anyway.

[99] [2000] 2 NZLR 347. McGechan J noted (at 371) that: The Ministers were specifically required to see that (inter alia) Timberlands "exhibits a sense of social responsibility by having regard to the interests of the community in which [Timberlands] operates ..." It seems to me incontrovertible that a conservation ethic would come within the phrase, "a sense of social responsibility”’.

[100] A force majeure clause provided contractual protection against all but one plaintiff.

[101] Under s 13 of the State Owned Enterprises Act 1986 (NZ). However, liability was 'very properly' not contested (see 372).

[102] Newfoundland vR [1999] 3 SCR 199.

[103] Ibid, para 41. An example of a statute expressly excluding compensation is the Forests (West Coast Accord) Act 2000 (NZ).

[104] Newfoundland vR [1999] 3 SCR 199, para 49. D Rose, 'The Government and Contract' in P D Finn Essays on Contract (1987) 252-3 argues that constitutional rules may require the Australian Federal government to provide compensation when modifying contracts as this may amount to an 'acquisition of property' under s 51 of the Constitution. A similar argument under Magna Carta and the Bill of Rights Act was rejected in Westco Lagan Ltdv Attorney-General [2001 ] 1 NZLR 40 despite the suggestion in Lumber Specialties v Hodgson [2000] 2 NZLR 347, 374 that the Bill of Rights Act might apply. See N Wheen, 'Desperate Remedies and the West Coast Sawmillers' (2001) 19 New Zealand Universities Law Review 239.

[105] Newfoundland vR [1999] 3 SCR 199, para 52.Rothmans of PallMall v Attorney-General [1990] NZHC 632; [1991] 2 NZLR 323 took a strict approach and held that government and parliament were separate, but this view was deliberately rejected by the Supreme Court as 'disingenuous'. William Cory and Son v City of London [1951] 2 KB 476 also rejected the self-frustration argument when a local body passed by-laws.

[106] T1T2 Ltd Partnership v The Queen in Right of Canada (1995) 23 OR (3d) 81 (affirmed (1995) 24 OR (3d) 546 (Ontario CA). A similar argument was rejected in Westco Lagan Ltd v Attorney- General [2001] 1 NZLR 40,48. Once the bill was passed it would seem that the judgment would cease to have any effect, since the bill declared that the contracts never come into force and barred any compensation to the other party.

[107] However, Petrocorp can only be weak support for this approach because the contract was found to be an illegitimate fetter by the Privy Council.

[108] Even on this view, Cory (changed view of public interest represented by new by-laws) is inconsistent with Newfoundland and Hodgson so must now be doubted.

[109] E Campbell, 'Agrreements About the Exercise of Statutory Powers' (1971) 45 Australian Law Journal 338.

[110] Mitchell, The Contracts of Public Authorities (1954), 20.

[111] Rose, above n 104, 243.

[112] Entick v Carrington [1765] EWHC J98; (1765) 19 St Tr 1030, 95 ER 807; Simpson v Attorney-General [1994] 3 NZLR 667.

[113] Hogg, Liability of the Crown (2nd ed, 1989) 172; Hogg and Monahan, Liability of the Crown (3rd ed, 2000) 229-30.

[114] This is less likely to be true of interim injunctions but given the likelihood of legislation, the balance of convenience is likely to favour the Crown in any case. Hogg and Monahan, ibid, 229 favour legislative variation of judgments if need be.

[115] It may be that opposition parties are trying to embarrass the government, but concessions occur in all legislation and courts do not enforce legislation in the form that the government would ideally have wanted it to take.

[116] Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1, 46-7.

[117] [1991] UKPC 10; [1991] 1 NZLR 641, 653. Presumably the same principles would apply to other public interests.

[118] Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1, 34. However, he did suggest that issues such as efficient supply or national security would be different. De Smith and Brazier, Constitutional and Administrative Law (8th ed, 1998) 600 claim 'the courts must retain power' to examine the repudiation. See also J Mitchell, 'Executive Discretion Again' (1960) 23 Modern Law Review 672, 674; Mitchell, above n 110, 17, 19, 56

[119] Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1, 50.

[120] Pharmaceutical Management Agency Ltd v Roussel UclafAust Pty Ltd [1998] NZAR 58, 83, but compare the English approach under R v Secretary of State for Health, exp US Tobacco [1992] QB353.

[121] Pharmaceutical Management Agency Ltd v Roussel UclafAust Pty Ltd [1998] NZAR 58, 92.

[122] [1999] 3 NZLR 399. But see the dissent of Thomas J at 408.

[123] Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 401.

[124] The Zamora [1916] 2 AC 77 (PC); Robinson v State of South Australia (no 2) [1931] AC 704, 716 (PC); Ruddock v Secretary of State for the Home Department [1987] 2 All ER 518.

[125] C. Czarnikow v Centrala Handlu Zagravnivcznego Rolimpex [1979] AC351.

[126] As the Court of Appeal did inPetrocorp. See also Mitchell, 'Executive Discretion Again', above n118, 674.

[127] C. Czarnikow v Centrala Handlu Zagravnivcznego Rolimpex [1979] AC 351, 363-364. This is described as 'novel' by Aronson and Whitmore, Public Torts and Contracts (1982) 199.

[128] Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 401.

[129] R v Secretary of State for the Home Department, ex p Hosenball [1977] 1 WLR 766.

[130] Choudry v Attorney-General [1999] 3 NZLR 399, 408 et seq.

[131] Schmidt v Secretary ofStatefor Home Affairs [1969] 2 Ch 149,170. C Forsyth, 'The Provenance and Protection of Legitimate Expectations' (1988) 47 Cambridge Law Journal 238.

[132] In Re Preston [1985] 2 AC 835, 864, 867 (Scarman and Templeman LL); R v IRC exp Matrix- Securities [1994] 1 WLR 334, 356. Forsyth, above n 131, 239 sees it as a form of natural justice.

[133] R v IRC ex p MFK Underwriting Agents [1990] 1 WLR 1545, 1569 (Bingham LJ) 'rooted in fairness'; Lever Finance Ltd v Westminster (City) LBC [1971] 1 QB222, 230 (Denning MR), the authority cited for this position was his own judgment in Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 (in which a statement by the council that consent to build was not needed was found to be binding). See R v Devon CC ex p Baker [1995] 1 All ER 73.

[134] For example, R v MAF exp Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 731.

[135] Attorney-General (NSW) v Quin (1990) 64 ALJR 327, 343.

[136] R v IRC expMFK Underwriting Agents [1990] 1 WLR 1545; Northern Roller Milling Co v Commerce Commission [1994] 2 NZLR 747.

[137] Attorney of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.

[138] Brierley Investments v Bouzaid [1993] 3 NZLR 655.

[139] R v MAF ex p Hamble (Offshore) FisheriesLtd [1995] 2 All ER 714, 731; Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204, 219.

[140] Launder v Governor of Brixton Prison [1998] EWHC 172.

[141] New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, 525 (PC) makes a very similar comment in similar circumstances, but without questioning the vires of the statement (even though it would fetter future conduct).

[142] Rv Secretary of State for the Home Department, expRuddock [1987] 2 All ER 518.

[143] For example, Attorney of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.

[144] For example, Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 401.

[145] Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643, 707 (Denning MR); R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 730; HTV v Price Commission [1976] ICR 170; In Re Preston [1985] 2 AC 835, 865 (Templeman L); Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 401 (Fraser L); Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222, 230 (Denning MR).

[146] R v MAF ex p Hamble (Offshore)Fisheries Ltd [1995] 2 All ER 714, 735. See also Hughes v Department of Health and Social Security [1985] AC 776, 788; R v Secretary of State for the Home Department ex p Hargreaves [1996] EWCA Civ 1006; [1997] 1 WLR 906, 918; Re Findlay [1985] AC 318, 337.

[147] R v Secretary of State for the Home Department, ex p Khan [1984] EWCA Civ 8; [1985] 1 All ER 40, 46, 48 (Parker LJ); Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643, 707 (Denning MR).

[148] In Re Preston [1985] 2 AC 835, 852 (Scarman L) quoting HTV v Price Commission [1976] ICR 170,185-6; Northern Roller Milling Co v Commerce Commission [1994] 2NZLR747, 754;AG v Steelfort Engineering CoLtd(CA, 143/98, 3.3.99, Richardson P, Henry, Thomas, Blanchard, Tipping JJ), 6.

[149] Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 401 (Fraser L). Thomas J has held that the Treaty of Waitangi creates legitimate expectations: New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140, 183 (the majority at 166 rejected arguments based on legitimate expectations because doing so would require scrutinising legislation).

[150] R v North and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850.

[151] R v Secretary of State for the Home Department ex p Hargreaves [1996] EWCA Civ 1006; [1997] 1 WLR 906, 922, the case is a harsh one as other documentation, seen by the prisoner at the time, did provide the requisite certainty.

[152] Minister for Immigration, Local Government and Ethnic Affairs vKurtovic (1990) 92 ALR 93, 108.

[153] R v Secretary of State for Education and Employment exp Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, 1126.

[154] R v Secretary of State for the Home Department, expArif The Times, 29/11/96.

[155] Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374, 401 (Fraser L).

[156] [1999] 1 NZLR 78.

[157] Ibid 126-7.

[158] New Zealand Maori Council v Attorney-General (21.9.90, Heron J, HC Wellington, CP785/90) 8.

[159] Kumar v Minister of Immigration (8.7.98, Salmon J, HC Auckland, M275/98).

[160] Hughes v Department of Health and Social Security [ 1985] AC 776, 788 (Diplock L); Waite v Government Commission Headquarters [1983] 2 AC 713, 723 (Fraser L);R v IRC, exp Unilever [1996] STC 681. See also, Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222. Western Fish Products LtdvPenwith DC [1981] 2 All ER 204, 219 explains Lever because of the established procedure (both cases are argued in estoppel, but there would seem to be no reason to apply a different test for legitimate expectations involving practice not policy).

[161] Waite v Government Commission Headquarters [1983] 2 AC 713, 723-4 (HL) (retirement age to be determined by looking at practice of the department).

[162] Pharmaceutical Management Agency Ltd v Roussel Ucl afAust Pty Ltd [1998] NZAR 58, 83.

[163] Ibid 92-95, Thomas J dissenting. The exact applicability of this to legitimate expectation is unclear as he also held that an inconsistent action met the Wednesbury unreasonableness test, and the context of the judgement was the treatment of two applicants, rather than an outright violation of past policy. Although this should not be a distinguishing feature, most cases lack this element.

[164] AG v E [2000] 3 NZLR 257, 281. The majority were content to find that the policy did not create a clear undertaking. See 270-1(Henry and Keith JJ for Richardson P and Gault J).

[165] R v IRC, ex p Unilever [1996] STC681; Waite v Government Commission Headquarters [1983] 2 AC 713, 723-4 (HL); Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222.

[166] Hughes v Department of Health and Social Security [1985] AC 776.

[167] R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714. However, sometimes the expectation is that there will be no policy change and so the expected result must follow: Brierley Investments v Bouzaid [1993] 3 NZLR 655; R v Secretary of State for the Home Department, ex p Khan [1984] EWCA Civ 8; [1985] 1 All ER 40; R v North and East Devon Health Authority ex p Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850.

[168] R v Secretary of State for the Home Department, ex p Ruddock [1987] 2 All ER 518.

[169] Jiuming v Department of Labour [1998] NZAR 219, 226. The case was rejected because the guidelines related to a different provision.

[170] They 'are protected not guaranteed': Forsyth, 'The Provenance and Protection of Legitimate Expectations' (1988) 47 Cambridge Law Journal 238,260.

[171] R v IRC ex p MFK Underwriting Agents [1990] 1 WLR 1545, 1569.

[172] Only Lord Browne-Wilkinson attached any significance to this point: 356-7.

[173] R v Secretary of State for Education and Employment ex p Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, 1125.

[174] Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222, 230. Bradley and Ewing, Constitutional and Administrative Law (12th ed, 1997) 846 assert this is sufficient for creating a contract.

[175] Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204, 220-1.

[176] See Kumar v Minister of Immigration (8.7.98, Salmon J, HC Auckland, M275/98).

[177] R v IRC ex p MFK Underwriting Agents [1990] 1 WLR 1545, 1569; R v IRC ex p Matrix- Securities [1994] 1 WLR 334; Launder v Governor of Brixton Prison [1998] EWHC 172, para 34; Rv North and East Devon Health Authority ex p Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850.

[178] Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204, 234 (Eveleigh LJ). See also Maritime Electric Co v General Dairies [1935] 4DLR 196;Rv Secretary of State for Education and Employment ex p Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115.

[179] RvIRC, ex p Unilever [1996] STC 681; AG v ChuPiu-wing [1984] HKLR411.

[180] R v IRC ex p MFK Underwriting Agents [1990] 1 WLR 1545, 1569; R v IRC ex p Matrix- Securities [1994] 1 WLR 334.

[181] For example, In Re Preston [1985] 2 AC 835; Attorney-General v Steelfort Engineering Co Ltd (CA, 143/98, 3.3.99, Richardson P, Henry, Thomas, Blanchard, Tipping JJ); Attorney of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; R v Liverpool Corporation, ex p Liverpool Taxi Fleet [1972] 2 QB 299.

[182] For example, Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222; Western Fish Products Ltd vPenwith DC [1981] 2 All ER 204.

[183] See particularly Tay v Attorney-General [1992] 2 NZLR 693; In Re Preston [1985] 2 AC 835; Attorney-General v Steelfort Engineering Co Ltd (CA, 143/98, 3.3.99, Richardson P, Henry, Thomas, Blanchard, Tipping JJ).

[184] Rootkin v Kent CC [1981] 2 All ER 227 ( argued in estoppel) held that no duty could be created by a mistake of facts, in this case that a school was more than three miles away and therefore the family was entitled to a transport subsidy. This may be one example where estoppel and legitimate expectation deviate.

[185] R v Secretary of State for Education and Employment ex p Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, 1127.

[186] R v IRC ex p MFK Underwriting Agents [1990] 1 WLR 1545; R v IRC ex p Matrix-Securities [1994] 1 WLR 334, Brierley Investments vBouzaid [1993] 3 NZLR 655; In Re Preston [1984] UKHL 5; [1985] AC 835. These cases involve representations by authorities as to the tax status of certain transactions.

[187] Durant v Greiner (1990) 21 NSWLR 119. M Poole, 'Legitimate expectation and Substantive Fairness: Beyond Limits of Procedural Propriety' [1995] New Zealand Law Review 426, 444 criticises the doctrine for creating inequalities because of this requirement.

[188] Save the Showground for Sydney v Minister of Urban Affairs and Planning S 78/97, (1998).

[189] In Re Preston [1985] 2 AC 835; Western Fish Products Ltd vPenwith DC [1981] 2 All ER204. Arguably there may be a generalised reliance that the state will honour its undertakings - Sedley LJ argues that where the statement is made to the public reliance is not needed: R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR1115, 1127, 1133.

[190] R v Secretary of State for the Home Department ex p Hargreaves [1996] EWCA Civ 1006; [1997] 1 WLR 906; R v Secretary of State for Education and Employment ex p Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, 1127.

[191] R v Secretary of State for Education and Employment ex p Begbie[2000]1 WLR 1115,1133. Although he goes on to note that where public statements are made there is no need to show reliance. There seems no good reason for changing a reliance element just because it is said to more people.

[192] Minister of State for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273. Curiously Gaudron and McHugh JJ sat on this case and the radically different Save the Showground for Sydney v Minister of Urban Affairs and Planning S 78/97 (1998), although McHugh J dissented in Teoh.

[193] (Mason CJ and Deane J) 219.

[194] [1990] HCA 22; (1990) 169 CLR 648.

[195] [1985] HCA 81; (1985) 159 CLR 550.

[196] [2000] NZAR 354, 364 (Fisher J). The Court of Appeal did not address this aspect, but implicitly approved it by constructing the treaties in question in a different way: [2000] 3 NZLR 257.

[197] [1987] 2 AllER518. It is unclear from the judgment if the applicants knew of the relevant policy.

[198] For example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550;Minister of State for Immigration v Teoh (1995) 183 CLR273;Durant v Greiner(1990)21 NSWLR 119; Attorney-General (NSW) v Quin (1990) 64 ALJR 327 (Dawson J); Haoucher v Minister of Immigration and Ethic Affairs [1990] HCA 22; (1990) 169 CLR 648. Forsyth, 'The Provenance and Protection of Legitimate Expectations' (1988) 47 Cambridge Law Journal 238, 240.

[199] AG v E [2000] 3 NZLR 257, 275.

[200] Ashby v Minister of Immigration [1981] 2 NZLR 222 (CA); Tavita v Minister of Immigration [1994] 2 NZLR 257, 266 (CA).

[201] As suggested in O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 (HL) and Thames Valley Electricity Power Board v New Zealand Forest Products Pulp and Paper Ltd [1994] 2 NZLR 641.

[202] M Taggart, 'Legitimate Expectation and Treaties in the High Court of Australia' (1996) 112 Law Quarterly Review 50, 51.

[203] For example, R v Secretary of State for the Home Department, ex p Ruddock [1987] 2 All ER 518; Minister of State for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[204] Poole, above n 187, 444-5.

[205] For example, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.

[206] For example, Tay v Attorney-General [1992] 2 NZLR 693; R v Liverpool Corporation, ex p Liverpool Taxi Fleet [1972] 2 QB 299

[207] Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149; R v Liverpool Corporation, exp Liverpool Taxi Fleet [1972] 2 QB 299.

[208] For example, Attorney ofHongKong vNg Yuen Shiu [1983] 2 AC 629.

[209] As shown earlier the language of contract is often used.

[210] See the analysis in R v North and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850. Also P Craig and S Schonberg, 'Substantive Legitimate Expectation After Coughlan' [2000] Public Law 684, 689; Forsyth, above n 198, 245; S Foster 'Legitimate Expectations and Prisoners' Rights: The right to get what you are given' (1997) 60 Modern Law Review 727, 731.

[211] [1985] AC 318. This is supported by Hughes, R v Secretary of State for the Home Department ex p Hargreaves [1997] 1 WLR906;Rv MAF ex p Hamble (Offshore) Fisheries Ltd[1995]2 All ER 714.

[212] R v Secretary of State for the Home Department, expKhan [1984] EWCA Civ 8; [1985] 1 All ER 40.

[213] For example Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93. Poole, above n 187, 431.

[214] HTV, R v IRC ex p MFK Underwriting Agents [1990] 1 WLR 1545; R v IRC, ex p Unilever [1996] STC681;Rv Secretary ofState for the Home Department, expKhan [1985] 1 AllER40; R v Secretary of State for the Home Department, ex p Ruddock [1987] 2 All ER 519; R v North and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850; R v Secretary of State for Education and Employment ex p Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115.

[215] New ZealandMaori Council v Attorney-General [1994] 1 NZLR 513, 525.

[216] Attorney General v Steelfort Engineering Co Ltd (CA, 3.3.99, 143/98, Richardson P, Henry, Thomas, Blanchard, Tipping JJ).

[217] Thames Valley Electricity Power Board v New Zealand Forest Products Pulp and Paper Ltd [1994] 2 NZLR 641. See particularly Cooke P at 652-3 and Fisher J at 654. The language used was that of substantive unfairness, but the concept seems very similar, and both Ruddock and Preston are cited (both cases support substantive expectations).

[218] Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655, 661-664, in part this was a matter of statutory interpretation whether than doctrinal opposition.

[219] (Casey and McKay JJ).

[220] Pharmaceutical Management Agency Ltd v Roussel Ucl af Aust Pty Ltd [1998] NZLR 58; New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140.

[221] Ali v Deportation Review Tribunal [1997] NZAR 208, 217; Preston vMinister of Immigration [1998] NZAR 539, 555;Lumber Specialties v Hodgson [2000] 2 NZLR 347, 370; CoalProducers Federation of New Zealand v Canterbury Regional Council [1999] NZRMA 257, 271; Singh v Branch Manager of New Zealand Immigration Services [1998] NZAR 98; Jiuming v Department of Labour [1998] NZAR 219. There is some authority to the contrary: Leigh Fishermen's Association Inc vMinister of Fisheries (11.6.95, McGechan J, HC Wellington, CP 266/95) and, arguably, Kumar v Minister of Immigration (8.7.98, Salmon J, HC Auckland, 275/98).

[222] Other members of the court held that legitimate expectation was simply procedural fairness.

[223] This conclusion is clearly wrong. Parker LJ stated at 46 that the department could not resile 'without affording...a hearing and then only if the overriding public interest demands it'. The undertaking was binding. Gummow J also argued that Dunn LJ applied estoppel, despite his clear statement at 51 that he is not.

[224] (Mason CJ, Dean and Toohey JJ; McHugh J dissenting ).

[225] M Taggart, 'Legitimate Expectation and Treaties in the High Court of Australia' (1996) 112 Law Quarterly Review 50, 53 argues that this makes ratified treaties a mandatory consideration, and that to describe the right as procedural is 'disingenuous'. Thomas J has argued that Teoh makes a persuasive case for substantive rights: New ZealandMaori Council v Attorney-General [1996]3 NZLR 140, 185.

[226] For example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Haoucher vMinister of Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648; Attorney-General (NSW) v Quin (1990) 64 ALJR 327.

[227] ReferenceRe Canada Assistance Plan [1992] 2 SCR 525.

[228] Citing Old St Boniface Residents Association Inc v City of Winnipeg [1990] 3 SCR 1170.

[229] The decision is in stark contrast to R v Marshall (1999) 177 DLR (4th) 515, 535 where the Supreme Court found that it was entirely proper to imply terms into treaties with indigenous peoples on the basis that 'the law cannot ask less of the honour and dignity of the crown'. The court made the analogy with private contracts, an approach it spurned in Re Canada since it was 'not an ordinary contract' but 'an agreement between governments'. The basis for the different treatment is not immediately obvious but may be due to the lack of a direct attack on the sovereignty of parliament in Marshall.

[230] Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93. English courts have cited estoppel cases as authority for legitimate expectation, as if they were direct authority: R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 730; In Re Preston [1985] 2 AC 835, 865; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 637.

[231] R v North and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850, 872.

[232] Ibid 873. (Woolf MR).

[233] Rv Devon City Council exp Baker [1995] 1 All ER73; Northern Roller Milling Co v Commerce Commission [1994] 2 NZLR 747; R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER714,731. Shah, Ramnik, 'Estoppel and Legitimate Expectation' 145 New Law Journal 1615; Forsyth, 'The Provenance and Protection of Legitimate Expectations' (1988) 47 Cambridge Law Journal 238,239; WS Clarke, 'Criminal Procedure' (1985) 15 Hong Kong Law Journal 399, 403. Aronson and Dyer, Judicial Review of Administrative Action (2nded, 2000) 121.

[234] R vIRC ex p Matrix-Securities [1994] 1 WLR 334, 346 (Griffiths L); R v Secretary of State for Education and Employment ex p Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, 1131 (Laws LJ); Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374 also refers to the need for proportionality between the harm and the remedy ( Lord Diplock at 410).

[235] Poole, above n 187, 429.

[236] Pharmaceutical Management Agency Ltd v Roussel Uclaf Aust Pty Ltd [1998] NZAR 58; R v IRC expMFK Underwriting Agents [1990] 1 WLR 1545, 1869-70; R v North and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850, 876; Rv Secretary of State for the Home Department, expKhan [1984] EWCA Civ 8; [1985] 1 All ER 40, 52; InRePreston [1985] 2 AC 835 (where there was frequent reference to 'judicial review').

[237] Forsyth, above n 233, 260.

[238] Craig and Schonberg, above n 210, 694.

[239] Forsyth, above n 233, 253.

[240] This was not actionable at the time, but probably is now, at least in New Zealand: see S Todd (ed), The Law of Torts in New Zealand (3rd ed, 2001) 907-37. Taylor J found that there was no misfeasance or irrationality so declined to award damages.

[241] RvSecretary ofState for the Home Department, expPatel [1991] ImmAR 14; R v Secretary of State for the Home Department, exp Oloniluyi [1989] Imm AR 14.

[242] Gowa and Ors v Attorney-General [1985] WLR 1003; Rubrico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 86 ALR 681.

[243] R v Secretary of State for the Home Department, ex p Gangadia [1994] Imm AR 341; Christodoulidou v Secretary of State for the Home Department [1985] Imm AR 179. The same result was reached in estoppel in Tay v Attorney-General [1992] 2 NZLR 693.

[244] Forsyth, above n 233, 253.

[245] In fact, Cooke P notes in Thames Valley Electricity Power Board v New Zealand Forest Products Pulp and Paper Ltd [1994] 2 NZLR 641, 657 that 'the quality of an administrative decision...is open to a degree of review' (original emphasis).

[246] For example, Brierley Investments Ltd vBouzaid [1993] 3 NZLR 655.

[247] For example, Coal Producers Federation of New Zealand v Canterbury Regional Council [1999] NZRMA 257; Tay v Attorney-General [1992] 2 NZLR 693; Attorney-General (NSW) v Quin (1990) 64 ALJR 327; Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Reference Re Canada Assistance Plan [1992] 2 SCR 525.

[248] R v North and East Devon Health Authority, exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850.

[249] In Re Preston [1985] 2 AC 835, 864; R v Secretary of State for the Home Department, ex p Khan [1984] EWCA Civ 8; [1985] 1 All ER 40, 52l; Launder v Governor of Brixton Prison [1998] EWHC 172, para 34; R v IRC exp Matrix-Securities [1994] 1 WLR 334; R v IRC expMFK Underwriting Agents [1990] 1 WLR 1545; Pharmaceutical Management Agency Ltd v Roussel Uclaf Aust Pty Ltd [1998] NZAR 58, 92;RvIRC, exp Unilever [1996] STC 681.

[250] Rv Secretary of State for the Home Department, ex p Khan [1984] EWCA Civ 8; [1985] 1 All ER 40, 52.

[251] For example, deciding to deport a criminal (Kurtovic) or change fishing quotas (Hamble). Poole, 'Legitimate Expectation and Substantive Fairness: Beyond Limits of Procedural Propriety' [1995] New Zealand Law Review 426, 444.

[252] Poole, ibid 433. Tay v Attorney-General [1992] 2 NZLR 693; Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204.

[253] R v IRC exp Matrix-Securities [1994] 1 WLR 334; R v North and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850; InRePreston [1985] 2 AC 835, 864 (clearance only at local level); Western Fish Products Ltdv Penwith DC [ 1981 ] 2 All ER 204.

[254] See the doubting of Coughlan's criteria in R v Secretary of State for Education and Employment expBegbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, 1130, 1133.

[255] Forsyth, above n 233, 241.

[256] Although they have provided no test for determining how strong the public interest has to be: Craig and Schonberg, above n 210, 698. This criticism is slightly unfair, for courts have often referred to an (ambiguous) 'overriding' interest.

[257] R vNorth and East Devon Health Authority exp Coughlan [1999] EWCA (Civ) 1871; [2000] 3 All ER 850, 869.

[258] Aronson and Dyer, Judicial Review of Administrative Action (1996) 168; Poole, 'Legitimate Expectations and Substantive Fairness: Beyond Limits of Procedural Propriety' [1995] New Zealand Law Review 426, 445; Forsyth, above n 233, 243 argues that such assessments are regularly made in Germany.

[259] Poole, ibid 445; Y Dotan, 'Why Administrators Should be Bound by Their Policies' (1997) Oxford Journal of Legal Studies 23, 30.

[260] Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204. Examples include immigration (Tay v Attorney-General [1992] 2 NZLR 693; Minister for Immigration, Local Government and Ethnic Affairs vKurtovic (1990) 92 ALR 93) and environmental (R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714) matters.

[261] Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 123.

[262] Dotan, above n 259, 30.

[263] Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 97; Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643, 708; Attorney-General (NSW) vQuin (1990) 64 ALJR 327, 333.

[264] R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714; Hughes v Department of Health and Social Security [1985] AC 776; Re Findlay [1985] AC 318.

[265] R v Secretary of State for the Home Department, ex p Khan [1984] EWCA Civ 8; [1985] 1 All ER 40.

[266] Attorney of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 comes closest, but concerned a failure to uphold a policy rather than an exemption case.

[267] If detriment is needed this eliminates the need to restrict the class, but the question of detriment remains vexed.

[268] R Best, 'Legitimate expectation of Substantive Benefit' [2000] New Zealand Law Journal 307, 308.

[269] Tay v Attorney-General [1992] 2 NZLR 693; R v Secretary of State for Education and Employment expBegbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115, Ref Re Canada Assistance Plan [1992] 2 SCR 525; R v Liverpool Corporation, exp Liverpool Taxi Fleet [1972] 2 QB 299; Attorney General v Steelfort Engineering Co Ltd (Ca, 143/98, 3.3.99, Richardson P, Henry, Thomas, Blanchard, Tipping JJ); R v Secretary of State for the Home Department exp Hargreaves [1996] EWCA Civ 1006; [1997] 1 WLR 906; Re Findlay [1985] AC 318; Durant v Greiner (1990) 21 NSWLR 119.

[270] Christodoulidou v Secretary of State for the Home Department [1985] Imm AR 179. Such cases are often argued in estoppel: Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222; Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204; Gowa and Ors v Attorney- General [1985] WLR 1003.

[271] R v MAF ex p Hamble (Offshore) FisheriesLtd [1995] 2 All ER 714; Northern Roller Milling Co v Commerce Commission [1994] 2 NZLR 747; R v Ministry of Health, exp US Tobacco [1992] QB 353; Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374.

[272] R v Secretary of State for the Home Department, ex p Khan [1984] EWCA Civ 8; [1985] 1 All ER 40, 52l; Tay v Attorney-General [1992] 2 NZLR 693.

[273] Pharmaceutical Management Agency Ltd v Roussel Uclaf Aust Pty Ltd [1998] NZAR 58; R v Secretary of State for the Home Department, ex p Ruddock [1987] 2 All ER 518; Minister of State for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273; AG vE [2000] 3 NZLR 257.

[274] Judicial review involves delays that cannot always be made good (for example, Takaro Properties Ltd v Rowling [1987] 2 NZLR 700) but this applies equally to legitimate expectations.

[275] For example, R v MAF ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714.

[276] Aronson and Dyer, above n 261,127; Poole, above n 258.

[277] Ibid, Aronson and Dyer, 507; Bradley and Ewing, Constitutional and Administrative Law (12th ed, 1997) 847; De Smith and Brazier, Constitutional and Administrative Law ( 8th ed, 1998) 544.

[278] Lumber Specialties v Hodgson [2000] 3 NZLR 347, 370.

[279] Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643. Although in Robertson v Minister of Pensions [1949] 1 KB 227 he did apply estoppel. Other English authorities include Howell v Falmouth Boat Construction Ltd [1951] 2 All ER 278; R v Blenkinsop [1892] 1 QB 43.

[280] The King v Royal Bank of Canada (1919) 50 DLR 293; Bank of Montreal v The King (1907) 38 SCR 258; TheKing v Capital Brewing andCo. [1932] Ex CR 171.

[281] Attorney-General (NSW) v Quin (1990) 64 ALJR 327, 333. This expands the judgment of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93.

[282] Attorney-General (NSW) v Quin (1990) 64 ALJR 327, 333. This is consistent with the statement in Kurtovic that estoppel could apply in operational cases.

[283] Ibid 475.

[284] Brennan J agreed on this point but Deane J disagreed.

[285] Ibid 475.

[286] Ibid 486.

[287] Hogg and Monahan, Liability of the Crown (3rd ed, 2000) 261; G Williams, 'Notes' (1952) 15 Modern Law Review; J Mitchell, 'Executive Discretion Again' (1960) 23 Modern Law Review 672; F Farrer, 'A Prerogative Fallacy - 'That the Crown is not Bound by Estoppel" (1933) 49 Law Quarterly Review 511; Wade and Forsyth, Administrative Law (8th ed, 2000) 243 (although suggesting the courts have gone too far).

[288] Esquimault v Wilson [1920] AC 358; Canadian Pacific Railway v the King [1931] AC 414; Attorney-General for Prince of Wales v Collum [1916] 2 KB 204.

[289] R v Paulson [1921] 1 AC 271.

[290] Robinson v South Australia [ 1931 ] AC 704, 716 quoting from Pawlett v Attorney-General (1667) Hardres 465, 469.

[291] (1884)9 AppCas 699 (PC).

[292] (CA, 253/95, 10.6.97).

[293] [1949] 1 KB 227.

[294] Howell v Falmouth Boat Construction Ltd [1951] 2 All ER 278.

[295] See above. While this is arguable in England, it appears well settled in New Zealand.

[296] For example, Taranaki Electric Power Board v Proprietors ofPuketapu 3A Block [1958] NZLR 297.

[297] Farrer, above n 287, 511.

[298] JL Holdings Pty Ltd v State of Queensland [1997] 325 FC 15. It was held that there was no sufficient undertaking to bind an incoming government.

[299] Aronson and Dyer, Judicial Review of Administrative Action (1996) 167.

[300] Commonwealth of Australia v Verwayen (1990) 170 CLR395;McDonald v AG(20.6.91, Holland J, HC Invercargill, CP 13/86); Fairnington Investments Ltd v New Zealand Kiwifruit Marketing Board (6.7.95, Fisher J, HC Auckland, CP 364/94).

[301] Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 (Burchett and Gummow JJ.)

[302] NSW v Bardolph (1934) 52 CLR 455 (HCA); Hogg, Liability of the Crown (2nd ed, 1989) 166.

[303] Birkdale District Electricity Supply Ltd v Corporation Southport [1926] AC 355; Gore Power Co v Gore DC [1997] 1 NZLR 537. Aronson and Dyer, above n 299, 162; Wade and Forsyth, above n 287, 339.

[304] There is nothing unique in this as private dealings cannot normally defeat statute: Wilken and Villiers, Waiver, Variation andEstoppel (1998) 173; Cooke, TheModernLaw of Estoppel (2000) 137-42.

[305] Maritime Electric Co v General Dairies [1935] 4 DLR 196.

[306] Lord Denning describes this decision as 'unfortunate': Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643.

[307] Hydro Electric Commission ofKenora v Vacationland Dairy Co-operative Ontario Ltd (1994) 162 NR 241, 246.

[308] Ibid 251. The distinction between making it illegal to sell electricity at a certain rate, and creating an express duty to pay the statutory rate seems overly refined and was rejected by the minority.

[309] Ibid 246.

[310] Ibid 251.

[311] This largely reflects private law: J A Andrews, 'Estoppels Against Statutes' (1966) 29 Modern Law Review 1, 3.

[312] Simpson v Blacks Harbour (Village) (1995) 160 NBR (2d) 375, 385.

[313] The Queen in Right of Ontario vBaig (1979) 23 OR (2d) 730, 734.

[314] Taranaki Electric Power Board v Proprietors ofPuketapu 3A Block [1958] NZLR 297, 304. This distinction was rejected in the dissenting judgment of Iacabucci J in Hydro Electric Commission of Kenora v Vacationland Dairy Co-operative Ontario Ltd (1994) 162 NR 241, 271.

[315] Ibid 303. For cases where the statute has not allowed this see Challenge Realty v CIR [1990] 3 NZLR 43; Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655; Europa Oil (NZ) Ltd v CIR [1970] NZLR 321.

[316] Hamilton CC v Waikato Electricity Authority [1994] 1 NZLR 741, 761.

[317] Khouri v Waitakere CC (6.8.97, Elias J, HC Auckland, M 62-94) 74.

[318] Section 3 of the Public Bodies Contracts Act 1959 (NZ) requires that officers be acting 'by authority'.

[319] Khouri v Waitakere CC (6.8.97, Elias J, HC Auckland, M62-94) 74.

[320] Ibid 73.

[321] AGvSteelfort Engineering CoLtd(CA, 3.3.99, 143/98, Richardson P, Henry, Thomas, Blanchard, Tipping JJ). Earlier cases rejecting estoppel include Europa Oil (NZ) Ltd v CIR [1970] NZLR 321; Challenge Realty v CIR [1990] 3 NZLR 43; CIR v Lemmington [1982] 1 NZLR 17.

[322] Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655.

[323] Western Fish Products Ltdv Penwith DC [ 1981 ] 2 All ER 204; Brooks & Burton Ltd v Secretary of State for the Environment (1976) 75 LGR 285, 296. See also Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB; Rootkin v Kent CC [1981] 2 All ER 227; Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222; Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643. See also Robertson v Minister of Pensions [1949] 1 KB 227; R v Liverpool Corporation, expLiverpool TaxiFleet [1972] 2 QB 299; HT V v Price Commission [1976] ICR 170.

[324] Commonwealth of Australia v Verwayen (1990) 170 CLR 395, 406, 455, 482, 496 (Mason CJ, Dawson J, Gaudron J, McHugh J). Minister for Immigration, Local Government and Ethnic Affairs vKurtovic (1990) 92 ALR 93.

[325] Commonwealth of Australia v Verwayen (1990) 170 CLR 395; Aronson and Dyer, above n 299, 167-168.

[326] Woodhouse AC Israel CocoaLtd. S.A v Nigerian Produce Marketing Co. Ltd [1972] AC 741.

[327] Commonwealth of Australia v Verwayen (1990) 170 CLR 395 (relationship changed from alleged tortfeasor to acknowledged tortfeasor); Westport Sawmilling Co. Ltd v Attorney-General (18.10.95, Greig J, HC Wellington, CP 376/94). This point is rarely discussed in the cases. Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204, 220 required that the applicant show some reason for believing the undertaking to be binding, for example, widespread practice, but this has not been adopted in later cases and seems primarily directed at distinguishing Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222. Two judgments in Verwayen emphasised a history of waiving the available defences: Gaudron J at 484 and McHugh J at 503.

[328] Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co. Ltd [1972] AC 741 (HL). If the ambiguity is deliberately used to mislead the other party an estoppel can be found. Herd v Foodstuffs (South Island) Ltd (22.3.01, Hansen J, HC Dunedin, A44/00) 6; Westpac Banking Corp v Willoughby (24.12.97, Hansen J, DC Auckland, NP 2785/97).

[329] Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113 (PC); Cooke, above n 304, 72-5.

[330] Khouri v Waitakere CC (6.8.97, Elias J, HC Auckland, M62-94); West Coast RC v Attorney- General (CA, 10.6.97, 253/95, Gault, Blanchard, Cartwright JJ).

[331] More examples include Taranaki Electric Power Board v Proprietors of Puketapu 3A Block [1958] NZLR 297; Rubrico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 86 ALR 681.

[332] Spence, Protecting Reliance (1999) 61 citing Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 406; Commonwealth of Australia v Verwayen (1990) 170 CLR 395, 445.

[333] For example, Kirton v Nethery [1997] ANZ Conv R 53; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485. Spence, ibid 62. Cooke, above n 304, 92 indicates that 'cynical reliance' cannot found an estoppel.

[334] Lever Finance Ltd v Westminster (City) LBC [1970] EWCA Civ 3; [1971] 1 QB 222; Western Fish Products Ltd v PenwithDC [1981] 2 All ER 204.

[335] De Smith and Brazier, Constitutional and Administrative Law (8th ed, 1998) 599; Aronson and Whitmore, Public Torts and Contracts (1982) 203; Bradley and Ewing, Constitutional and Administrative Law (12th ed, 1997) 846. Khouri v Waitakere CC (6.8.97, Elias J, HC Auckland, M62-94) 69.

[336] Wade and Forsyth, above n 287, 339; Aronson and Dyer, above n 299, 162.

[337] P Craig, 'Representations by Public Bodies' (1977) Law Quarterly Review 398, 405 argues that if the act is ultra vires it cannot have ostensible authority.

[338] Commonwealth of Australia v Verwayen (1990) 170 CLR 395; Minister for Immigration, Local Government and Ethnic Affairs vKurtovic (1990) 92 ALR 93 (Neaves and Gummow JJ); Rubrico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 86 ALR 681; Taranaki Electric Power Board v Proprietors of Puketapu 3A Block [1958] NZLR 297; Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204 does not require this but generally seeks to limit the scope of estoppel. Re Smith andR (1974) 22 CCC (2d) 268, 272 suggests detriment is not needed but this is highly anomalous and clearly wrong.

[339] Khouri v Waitakere CC (6.8.97 Elias J, HC Auckland, M 62-94) 69; Fairnington Investments Ltd v NZ Kiwifruit Marketing Board (6.7.95, Fisher J, HC Auckland, CP 360/94); Burbery Mortgage Finance and Savings Ltd v Hinds Bank Holdings Ltd [I989] 1 NZLR 356; Walton Stores (Interstate) Ltd v Maher (1988) 1 64 CLR 387.

[340] Cooke, The Modern Law of Estoppel (2000) 98.

[341] Commonwealth of Australia v Verwayen (1990) 170 CLR 395; McDonald v Attorney-General (20.6.91, Holland J, HC Invercargill, CP 13/86); Fairnington Investments Ltd v NZ Kiwifruit Marketing Board (6.7.95, Fisher J, HC Auckland, CP 360/94).

[342] Cooke, above n 340, 97.

[343] Commonwealth of Australia v Verwayen (1990) 170 CLR 395, 413, 429, 476, 485, 504 (Mason CJ, Brennan J, Toohey J, Gaudron J, McHugh J). Deane J argued that the promise should be upheld unless 'it would be inequitably harsh' to do so at 443.

[344] Crabb vArun District Council [1976] Ch 179 (selling land in reliance on council promise that he would not be denied access to the road); Brickworks v Warringah Corporation [1963] HCA 18; (1965) 108 CLR 568.

[345] Spence, above n 332, 68, although it can if there is no other way to protect the interest.

[346] Commonwealth of Australia v Verwayen (1990) 170 CLR 395; Commonwealth of Australia v Clark [1994] VicRp 66; [1994] 2 VR 333.

[347] Commonwealth of Australia v Verwayen (1990) 170 CLR 395 at 447. See also Dawson J at 461 and Gaudron J at 487.

[348] Toohey J even suggests 'damages' to compensate for the stress at 504.

[349] HTV v Price Commission [1976] ICR 170, 185-6 indicates a similarity between the two tests. The position in private law is not absolutely clear either since detriment is a sliding scale: Cooke, above n 340, 97-100.

[350] Colin GeddesLtd v Wellington CC (5.5.96, McGechan J, HC Wellington, CP 211/94).

[351] Fairnington Investments Ltd v NZ Kiwifruit Marketing Board (6.7.95, Fisher J, HC Auckland, CP 360/94).

[352] Rootkin v Kent CC [1981] 2 All ER 227.

[353] [1963] HCA 18; (1965) 108 CLR 568, 578 (HCA). It is no doubt significant the case was decided under common law estoppel, because there was a representation of present fact.

[354] Rubrico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 86 ALR 681.

[355] Commonwealth of Australia v Verwayen (1990) 170 CLR 395; Fairnington Investments Ltd v NZ Kiwifruit Marketing Board (6.7.95 Fisher J, HC Auckland, CP 360/94).

[356] Markesinis and Deakin, Tort Law (4th ed, 1999) 354; Bradley and Ewing, above n 335, 835.

[357] Anns v Merton LBC [1977] UKHL 4; [1978] AC 728; Just v British Columbia [1990] 1 WWR385.

[358] Stovin v Wise [1996] UKHL 15; [1996] AC 923.

[359] Sutherland SC v Heyman [1985] HCA 41; (1985) 157 CLR 424; Bienke v Minister for Primary Industry and Energy (1996) 135 ALR 128; Pyrenees SC v Day [1998] HCA 3; (1998) 192 CLR 330; X v Bedfordshire BC [1995] UKHL 9; [1995] 2 AC 633.

[360] [1963] UKHL 4; [1964] AC 465.

[361] T v Surrey CC [1994] 4 All ER 577; Welton v North Cornwall DC [1996] EWCA Civ 516; [1997] 1 WLR 570; X v Bedfordshire CC [1995] UKHL 9; [1995] 2 AC 633; R v Cognos Inc [1993] 1 SCR 87.

[362] Haigh vBamford [1976] INSC 206; [1977] 1 SCR 477.

[363] Hercules Managements Ltd v Ernst & Young (1997) 146 DLR (4th) 577; Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 1 All ER 568.

[364] Mutual Life v Evatt [1970] UKPC 1; [1971] AC 793 rejected in Canada by R v Cognos Inc [1993] 1 SCR 87; in Australia by L. Shaddock and Associates v Parramatta CC (no 1) [1981] HCA 59; (1981) 150 CLR 225; in England by Es so Petroleum vMardon [1976] EWCA Civ 4; [1976] QB 801; and in New Zealand by Meates v Attorney- General [1983] NZLR 308.

[365] [1983] NZLR 308.

[366] (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993) CG 591 of 1992. Affirmed without of these issues at [1993] FCA 605; (1993) 44 FCR 481.

[367] [1998] EWCA Civ 614; [1998] 3 All ER 111.

[368] (1988) 12 NSWLR 293.

[369] Herd v Foodstuffs (South Island) Ltd (22.3.01, Hansen J, HC Dunedin, A44/00); Westpac Banking Corp. v Willoughby (24.12.97, Hansen J, DC Auckland, NP 2785/97);Allied Mortgage Nominees Ltd v McCulloch [1996] ANZ Con R 450; Shing v Ashcroft [1987] 2NZLR 154 (CA); Midland Bank Trust Co LtdvHett, Stubbs and Co [ 1979] Ch 3 84 (failure to register an option as promised).

[370] Meates v Attorney-General [1983] NZLR 308, 379 (Cooke J).

[371] Meates is a good example for Cooke J found that the promise had been discharged.

[372] Executive Holdings Ltd v Swift Current (city of) (1984) 36 Sask R 15 (announcement of a development); Dorsch v Weyburn (1985) 23 DLR (4th) 379 (possible acquisition of land).

[373] San Sebastien Pty Ltd v Minister Administering the Planning and Assessment Act 1978 (1986) 162 CLR 341 (HCA); Unilan Holding Pty Ltd v Kerin (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993) G591 of 1992.

[374] San Sebastien Pty Ltd v Minister Administering the Planning and Assessment Act 1978 (1986) 162 CLR 341 (HCA) 360. Brennan J at 374 indicated that compensation would only flow for fraud, but even this recognises the concept of a duty.

[375] S Todd (ed), The Law of Torts in New Zealand (2nd ed , 1997) 235.

[376] Ministry of Housing and Local Government v Sharp [1970] 2 QB 223, Jazabus v Botany Council [2000] NSWSC 58;L. Shaddock and Associates v Parramatta CC (no 1) [1981] HCA 59; (1981) 150 CLR 225.

[377] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465; Henderson v Merrett Sundicates Ltd [1994] UKHL 5; [1995] 2 AC 145; Arthur JS Halll and Co v Simons [1999] 1 Lloyds LR 47; SaifAli v Sydney Mitchell and Co [1980] AC 198; Chappel v Hart (1998) 195 CLR 232; Sykes v Midland Bank [1970] 3 WLR273.

[378] Shing v Ashcroft [1987] 2 NZLR 154.

[379] A state of mind is a fact: Buxton v The Birches Time Share Resort Ltd [1991] 2 NZLR 641, 646; Edginton v Fitzmaurice (1885) 29 Ch D 459, 483.

[380] This would explain cases like Herd v Foodstuffs (South Island) Ltd (22.3.01, Hansen J, HC Dunedin, A44/00) ( promise that a supermarket would not be opened in Cromwell) and San Sebastien Pty Ltd v Minister Administering the Planning and Assessment Act 1978 (1986) 162 CLR 341 (draft planning documents). One passage inMeates (346) suggests this also: 'if they were made at a time when there was no fixed intention to meet the commitment'.

[381] Todd, above n 375, 235.

[382] For a discussion and endorsement of this approach see S Perry, 'Protected Interests and Undertakings in the Law of Negligence' (1992) 42 University of Toronto Law Journal 247.

[383] Al-Kandari v JR Brown & Co Ltd [1988] EWCA Civ 13; [1988] QB 665; Kostiuk v Union Accceptance Corp Ltd (1967) 66 DLR (2d) 430; Morash vLockhart & Ritchie (1978) 95 DLR (3d) 647.

[384] Harris v Evans [1998] I WLR 1285; Ancell v McDermott [1993] EWCA Civ 20; [1993] 4 All ER 355; Capital and Counties plc v Hampshire CC [1997] EWCA Civ 3091; [1997] QB 1004; OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897.

[385] Capital and Counties plc v Hampshire CC [1997] EWCA Civ 3091; [1997] QB 1004; Kent v Griffiths [2000] EWCA Civ 25; [2000] 2 WLR 1158 (failure by ambulance to arrive); San Sebastien Pty Ltd v Minister Administering the Planning and Assessment Act 1978 (1986) 162 CLR 341; Council of the Municipality of Waverley v Bloom (1999) Aust Torts Reps 81-517 (representation that life guards on duty); Brown vHeathcote CC [1987] 1 NZLR 720; Sutherland SC v Heyman (1985) 59 ALR 564 (both involving housing inspection regimes).

[386] Allied Mortgage Nominees Ltd v McCulloch [1996] ANZ Con R 450 (promise to register a mortgage).

[387] Meates v Attorney-General [1983] NZLR 308, 379.

[388] Westport Sawmilling Co. Ltd v Attorney-General and Ors (18.10.94, Greig J, HC Wellington, CP 376/94).

[389] Bromley LBC v Greater London Council [1983] 1 AC 768; Durant v Greiner (1990) 21 NSWLR 119.

[390] S Todd, 'Negligent Statements, Negligent Conduct and Negligent Promises' (1985) 1 Professional Negligence 6

[391] Meates v Westpac Banking Corp [1990] UKPC 27; [1991] 3 NZLR 385.

[392] S Todd (ed), Law of Torts in New Zealand (3rd ed, 2001) 7-8.

[393] Wilkinson v Coverdale (1793) 1 Esp 75; Kostiukv Union Accceptance Corp Ltd (1967)66DLR (2d) 430;Morash v Lockhart & Ritchie (1978) 95 DLR (3d) 647; (all involving promises to provide insurance); Al-Kandari v JRBrown & Co Ltd [1988] EWCA Civ 13; [1988] QB 665 (promise to secure hostile husband's passport); Kent v Griffiths [2000] EWCA Civ 25; [2000] 2 WLR 1158 (failure by ambulance to arrive as promised).

[394] For example to organise insurance: Wilkinson v Coverdale (1793) 1 Esp 75 or register a mortgage: Allied Mortgage Nominees Ltd v McCulloch [1996] ANZ Con R 450.

[395] Trindade and Cane, The Law of Torts in Australia (3rd ed, 1999) 394. Henderson v Merret Syndicates[1995]2 AC 145(England);Hawkins v Clayton(1988)164 CLR539;Bryan v Maloney (1994) 182 CLR 609 (Australia); BG Checo International Ltd v British Columbia Hydro and Power Authority [1993] 1 SCR 12 (Canada); Riddel v Porteous [1998] NZCA 171; [1999] 1 NZLR 1. But seeRM Turton and Co Ltd v Kerslakes and Partners [2000] NZCA 115; [2000] 3 NZLR 406.

[396] Edgeworth Construction Ltd v ND Lea & Associates Ltd [1993] 3 SCR 208.

[397] Shing v Ashcroft [1987] 2 NZLR 154, 158.

[398] Ibid 157.

[399] Ibid 159.

[400] Waltons Stores (Interstate) Ltd vMaher (1988) 164 CLR 387. It is actually arguable that estoppel has moved into negligence, rather than the other way around; estoppel can now be the source of a cause of action: McDonald v Attorney-General (20.7.91, Holland J, HC Invercargill, CP 13/86); Gold Star Insurance v Gaunt (1991) 3 NZBLC 102, 294 and damages are available: Fairnington Investments Ltd v NZ Kiwifruit Marketing Board (6.7.95, Fisher J, HC Auckland, CP 360/94).

[401] McDonald v Attorney-General (20.7.91, Holland J, HC Invercargill, CP 13/86) 35.

[402] Westport Sawmilling Co. Ltd v Attorney-General and Ors (18.10.94, Greig J, HC Wellington, CP 376/94) 21-2.

[403] Herd v Foodstuffs (South Island) Ltd (22.3.01, Hansen J, HC Dunedin, A44/00) 8, 9.

[404] For example, ibid 6.

[405] S Todd (ed), Law of Torts in New Zealand (3rd ed, 2001) 198.

[406] For example, Manwelland Pty Ltd v Dames & Moore Pty Ltd [2000] QSC 423 (promise by defendant that decontamination could be done for a certain price); T v Surrey CC [1994] 4 All ER 577 can arguably be viewed on this light also (incorrectly told that no reason why a child could not be left with minder who subsequently injured the baby) as might Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465 (advice that a third party was good for its debts).

[407] Allied Mortgage Nominees Ltd v McCulloch [1996] ANZ Con R 450; Herd v Foodstuffs (South Island) Ltd; Wilkinson v Coverdale (1793) 1 Esp 7; Kostiuk v Union Accceptance Corp Ltd (1967)66DLR(2d)430.

[408] Parramatta v Lutz CC (1988) 12 NSWLR 293.

[409] Wilkinson v Coverdale (1793) 1 Esp 7; Kostiuk v Union Accceptance Corp Ltd (1967) 66 DLR (2d) 430.

[410] Allied Mortgage Nominees Ltd v McCulloch [1996] ANZ Con R 450.

[411] South Pacific Manufacturing Co Ltd v New Zealand Security Consultants Ltd [1992] 2 NZLR 282; Bell-Booth Group Ltd v Attorney-General [1989] NZCA 9; [1989] 3 NZLR 148.

[412] Unilan Holdings v Kerin (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993) G591 of 1992 provides an example.

[413] Meates v Attorney-General [1983] NZLR 308, 335.

[414] Ibid 379.

[415] Unilan Holdings v Kerin (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993) G591 of 1992, para 78.

[416] Newfoundland v R [1999] 3 SCR 199. See the discussion under 'Contract'.

[417] San Sebastien Pty Ltd v Minister Administering the Planning and Assessment Act 1978 (1986) 162 CLR 341 illustrates that relying on a draft plan will not be reasonable will not be reasonable. See particularly the judgment of Brennan J at 374.

[418] Fairnington Investments Ltd v NZ Kiwifruit Marketing Board (6.7.95, Fisher J, HC Auckland, CP 360/94).

[419] Stovin v Wise [1996] UKHL 15; [1996] AC 923; Just v British Columbia [1989] 2 SCR 1228; Brown v British Columbia (1994) 19 CCLT 268; Barratt v District of North Vancouver [1980] 2 SCR 418.

[420] Diversified Holdings v Crown in Right of British Columbia (1983) 23 CCLT 156.

[421] Just v British Columbia [1989] 2 SCR 1228; Swinamer v Nova Scotia (AG) (1994) 19 CCLT (2d) 233.

[422] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465, 534; Fleming v Securities Commission [1995] 2 NZLR 514; Caparo Industries plc. v Dickman [1990] UKHL 2; [1990] 2 AC 605.

[423] W v Essex CC [1998] EWCA Civ 614; [1998] 3 All ER 111 is a clear example of a case where liability was appropriate ( see text accompanying n 364).

[424] R v Turner (1975) 61 Crim App R 67, 77. Also, P Darbyshire, 'The Mischief of Plea Bargaining and Sentencing Rewards' [2000] Criminial Law Review 895; Ralph Henham, 'Bargain Justice or Justice Denied? Sentence Discounts and the Criminal Process' (1999) 62 Modern Law Review 515.

[425] R v MacArthur (1978) 39 CCC (2d) 158, 160; Everett v R [1994] HCA 49; (1994) 124 ALR 529; but see R v Tipene [2000] NZCA 358; (2000) 18 CRNZ 311, R v Fletcher-Jones (1994) 75 A Crim R 561.

[426] Delellis v R [1989] NZHC 711; (1989) 4 CRNZ 601; R v Croydon Justices, ex p Dean [1993] QB 767; R v Georgiadis [1984] VicRp 82; [1984] VR 1030; Chu Piu-wing [1984] HKLR 411; R v Crneck, Bradley and Shelley (1980) 116 DLR (3d) 675.

[427] Townsend, Dearseley, Bretscher v R [1997] 2 Cr App R 540.

[428] Delellis v R [1989] NZHC 711; (1989) 4 CRNZ 601, 603.

[429] Note however that two English cases do apply the label of 'legitimate expectation': Townsend, Dearsley, Bretscher v R [1997] 2 Cr App R 540; Attorney-General's Reference no 44 of 2000 (Robin Peverett) [2001] 1 Cr App R 416. Hewison vAG (6.6.01, Williams J, HC Auckland, CP 415/98) was decided in terms of contract.

[430] Moevao v Department of Labour [1980] 1 NZLR 464.

[431] Townsend, Dearsley, Bretscher v R [1997] 2 Cr App R 540; R v Horseferry Road Magistrates Court ex p Bennett [1993] UKHL 10; [1994] 1 AC 42

[432] 3.3.99, Randerson J, HC Auckland, T 98/2337.

[433] 1.3.99, Smellie J, HC Auckland, T 98/2216.

[434] [1997] DCR 624.

[435] Harte v Attorney-General (4.8.92, Heron J, HC Palmerston North, CP 149/91).

[436] [1984] VicRp 82; [1984] VR 1030.

[437] R vMilnes and Green [1983] 33 SASR211, in this case by the police. However, in R v Croydon Justices, ex p Dean [1993] QB 767 the court held that the statutory bar on the police promising non prosecution did not prevent the court staying the prosecution.

[438] Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396. A promise not to prosecute future crimes is also invalid: R v D’Arrigo [1994] 1 Qd R 603; R v Stead [1994] 1 Qd R 665; R v Catagas (1977) 81 DLR (3d) 396 .

[439] R v Milnes and Green [1983] 33 SASR 211, 219. D. Kell, 'Immunity from Prosecution for Prospective Illegal Conduct' (1997) 71 Australian Law Journal 553, 555 argues that promises not to prosecute future crimes are clear breaches of the Bill of Rights Act 1688 which prevents the Crown from dispensing with laws.

[440] 6.6.01, Williams J, HC Auckland, CP 415 /98.

[441] Hewison v AG (6.6.01, Williams J, HC Auckland, CP 415/98) 28.

[442] Townsend, Dearsley, Bretscher vR [1997] 2 Cr App R 540, 551.

[443] [2000] QCA 40; (2000) 110 A Crim R 348.

[444] 11.7.01, Smellie J, HC New Plymouth, M 19/01.

[445] (1980)116 DLR (3d) 675.

[446] Townsend Dearsley, Bretscher v R [1997] 2 Cr App R 540, 551.

[447] R v Power (1994) 39 CCC (3d) 1, 10 (SCC).

[448] Attorney-General for Canada v Roy (1972) 18 CRNS 89; R v MacArthur (1978) 39 CCC (2d) 158; R v Kirkpatrick [1971] Que CA 337.

[449] Townsend Dearsley, Bretscher vR [1997] 2 Cr App R 540, 551; Attorney-General's Reference no 44 of 2000 (Robin Peverett) [2001] 1 Cr App R 416.

[450] R v Tipene [2000] NZCA 358; (2000) 18 CRNZ 311, 317;R v Croydon Justices, exp Dean [1993] QB 767, 778; AG v Chu Piu-wing [1984] HKLR411, 417-8.

[451] R v Croydon Justices, ex p Dean [1993] QB 767, 778; Attorney-General's Reference no 44 of 2000 (Robin Peverett) [2001] 1 CrAppR416; AG v Chu Piu-wing [1984] HKLR 411, 417-8.

[452] AG v Chu Piu-wing [1984] HKLR 411, 417-8.

[453] R v Croydon Justices, ex p Dean [1993] QB 767, 778-9.

[454] Attorney-General's Reference no 44 of 2000 (Robin Peverett) [2001] 1 Cr App R 416, 423. See also R v Georgiadis [1984] VicRp 82; [1984] VR 1030 where a promise by Commonwealth agents provided protection from state charges.

[455] L Aitken, 'AWitness's Civil Immunity from Criminal Prosecution' [1994] SydLawRw 25; (1994) 16 Sydney Law Review 394. A use immunity is granted to prevent testimony or other information in any proceeding other than the one for which the testimony was given.

[456] Attorney-General v Fox (11.7.01, Smellie J, HC New Plymouth, M 19/01); McQuire andPorter [2000] QCA 40; (2000) 110 A Crim R 348; Harte v AG (4.8.92, Heron J, Palmerston North, CP 149/91) produced the same effect, but this was achieved by looking at the content of the promise not the question of authority.

[457] [1997] 1 Cr App R 135, 139.

[458] Attorney-General's Guidelines on the Acceptance of Pleas [2001] 1 CR App R 425. It also notes that the prosecution should not discuss sentences in any event.

[459] [2000] NZCA 358; (2000) 18 CRNZ 311 (CA).

[460] Ibid 317.

[461] Zhen Qi (1998) 102 A Crim R 172; Queen v Wilton (1981) 28 SASR 362; R vAllpass (1994) 72 A Crim R 561; R v Fletcher-Jones (1994) 75 A Crim R 561; Townsend [1997] 2 Cr App R 540.

[462] [1995] SASC 4922; (1995) 77 A Crim R 16, 17.

[463] [1994] HCA 49; (1994) 124 ALR 529 (HCA).

[464] 536 (McHugh J).

[465] 44 CCC (2d) 273.

[466] This should be compared with R v Bloomfield [1997] 1 Cr App R 135 where acceptance that the accused was not guilty was binding.

[467] R vHoko (CA, 29/85, 12.2.86, Cooke, McMullin, Casey JJ); Everett vR [1994] HCA 49; (1994) 124 ALR 529, 538.

[468] R v T and T [1987] NZCA 29; (1987) 2 CRNZ 503.

[469] R v Tipene [2000] NZCA 358; (2000) 18 CRNZ 311; McQuire and Porter [2000] QCA 40; (2000) 110 ACrimR 348;R vFletcher- Jones (1994) 75 A Crim R 381.

[470] Everett v R [1994] HCA 49; (1994) 124 ALR 529, 538;R v Tait and Bartley (1979) 24 ALR 473, 476-7 (Brennan, Deane, Gallup JJ).

[471] See R v Tait and Bartley (1979) 24 ALR 473, 476-7; R v Allpass (1994) 72 A Crim R 561.

[472] (1981)28 SASR 362.

[473] Zhen Qi (1998) 102 A Crim R 172; R v Allpass (1994) 72 A Crim R 561.

[474] R v Fletcher-Jones (1994) 75 A Crim R 381, 390.

[475] EverettvR [1994] HCA 49; (1994) 124 ALR 529, 538.

[476] Ibid 537.

[477] R v Tipene [2000] NZCA 358; (2000) 18 CRNZ 311, 317; Queen v Wilton (1981) 28 SASR 362, 368. S Shute, 'Prosecution Appeals Against Sentence: The First Five Years' (1994) 57 Modern Law Review 745.

[478] EverettvR (1994) 124ALR529, 538. For a practical illustration see R v Bloomfield [1997] 1 Cr App R 135.

[479] Re Smith and R (1974) 22 CCC (2d) 268, 272. This seems notto have been considered elsewhere but there is an unambiguous representation, although in some cases it may be hard to show detriment or even reliance, particularly if the accused is able to resume his position. In Commonwealth of Australia v Verwayen (1990) 170 CLR 395 Gaudron J held that parties to litigation will be held to representations if the representation causes the relationship between the litigants to change.

[480] Attorney-General v Fox (11.7.01, Smellie J, HC New Plymouth, M 19/01) 17.

[481] Moevao v Department of Labour [1980] 1 NZLR 464.

[482] R v H (1996) 83 A Crim R 402.

[483] See, for example, R v Ahluwalia [1992] EWCA Crim 1; [1992] 4 All ER 889.

[484] R v Broadhurst (CA, 220/82, 30.3.83, Woodhouse P, Richardson and McMullin JJ); R v Ion (1996)89 A Crim R 81.

[485] R v Turner (1975) 61 Crim App R 67, 77; Also, P Darbyshire, 'The Mischief of Plea Bargaining and Sentencing Rewards' [2000] Criminal Law Review 895, 902.

[486] [1981] UKHL 13; [1982] AC 529.

[487] R v H [1997] 1 NZLR 673.


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