Canterbury Law Review
Last Updated: 20 May 2013
LEGITIMATE ExPECTATION AND APPLICATIONS
– AN OUTDATED AND UNNEEDED DISTINCTION
Legitimate expectation is an area of administrative law that can be of
uncertain ambit. At times determining the boundaries of the
doctrine will rely
on fine judgements and slender distinctions. Applications for substantive
benefit are a case in point. Those who
already hold some ongoing benefit are
considered to have rights that those applying for one do not.1 In
the words of Megarry VC in McInnes v Onslow Fane,2 applicants
have a “mere hope”, and not an
“expectation” in the administrative law sense. This
paper will argue that this is a false distinction. Borrowed from the private
law, it does not
transfer easily into a public law context.3 It uses
a narrow application of procedural fairness founded on the existence of a
contractual relationship between the parties. Persons
already party to a
contract of membership were viewed as having justiciable rights in contract, in
contrast to applicants without
such a contract.4 Since
Schmidt,5 judicial review has not been bound by this type of
analysis. Legitimate expectation encompasses the notion that the requirements of
fairness may arise outside of the constraints of a formal legal relationship.
Ongoing use of the distinction as a principle of
legitimate expectation is
therefore inconsistent with the principles of legitimate expectation in its
modern sense. It reflects
constraints that no longer apply. Moreover, the
distinction is aimed at a problem that is well captured within existing
The rule fulfils no useful purpose, and simply adds a further
layer of theory upon doctrines where it is submitted “the
ingredients of the problem at hand (should)
* Solicitor, Bell Gully, Auckland. email@example.com
2 McInnes v Onslow Fane  3 All ER 211.
4 Nagle v Fielden  1 All ER 689.
5 Schmidt v Secretary of State for Home Affairs  2 Ch 149 (CA).
6 Rt Hon Sir Robin Cooke in Judicial Review, A New Zealand Perspective, GDS Taylor
(LexisNexis Butterworths, 1991), at V, Foreword.
II. Legitimate Expectation in a Gener al Sense
The purpose and principles of legitimate expectation in its wider sense must inform our judgement of the specific issues examined here. We therefore begin with a survey of the evolution and general ambit of legitimate expectation in modern administrative law. In its simplest sense, the concept of legitimate expectation derives from the administrative law principle that governments and public authorities must act fairly and reasonably.7
The concept is a dynamic one, unique to public law,8 despite
having some similarities with private law concepts like estoppel. It was coined
by Lord Denning in Schmidt v Secretary of State for Home Affairs,
when he stated that: 9
The speeches in Ridge v Baldwin10 show that an
administrative body may, in a proper case, be bound to give a person who is
affected by their decision an opportunity
of making representations. It all
depends on whether he has some right or interest, or, I would add, some
of which it would not be fair to deprive him without
hearing what he has to say.
In Breen v Amalgamated Engineering Union, his Lordship expanded upon
the notion, stating that: 11
Seeing he had been elected to this office by a democratic process, he had, I
think, a legitimate expectation that he would be approved
by the district
committee, unless there were good reasons against him. If they had something
against him, they ought to tell him
and to give him the chance of answering it
before turning him down.
Legitimate expectation is therefore significant in that it provides that an
interest less than a legal right may warrant the protection
of the rules of
natural justice. Where a legitimate expectation can be shown, a decision- maker
may not act to defeat that benefit
without the requirements of procedural
fairness being met.12 As McHugh J explains in Haocher, before
Lord Denning’s statements in Schmidt and Breen, the common
law rules of natural justice only protected a persons existing rights and
interests, implying a right to be heard before
a statutory power only where a
matter arose which might prejudice those rights and interests.13 The
introduction of the concept of legitimate expectation under public law extended
the range of protection given, so that prospective,
as well as existing, rights,
interests, privileges and benefits could come within the domain of natural
justice. But with such an
extension came the obvious need to develop principles
of application to prevent a snowball of unfounded claims. Thus a complex set
rules has been developed by the courts to govern when such an expectation will
7 New Zealand Association for Migration and Investments Inc v A-G  NZAR 45 at 52.
9 Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149.
10 Ridge v Baldwin  UKHL 2 (1964) AC 40.
11 Breen v Amalgamated Engineering Union (1971) 2 QB 175 at 191.
12 Haoucher v Minister for Immigration and Ethnic Affairs  HCA 22; (1989) 169 CLR 648 per Dawson J at
13 Ibid, per McHugh J at 679-680.
In general, this will be in four key situations: where assurances or promises
are given by a decision maker, whether express or implied,14 where
statements of intent are made by a decision maker, like in policy
manifestos,15 where a regular practice gives rise to the reasonable
implication that the practice will continue,16 and from the creation
of machinery for a hearing process.17 Where a public authority makes
an undertaking, they must honour it, provided it does not conflict with any
statutory duty18 and there is no “satisfactory reason”
not to do so.19 However in the same way that statements or conduct
may create a legitimate expectation, they may also defeat one. Reliance cannot
be made on one statement or action while others that form an equally relevant
part of the overall scheme are disregarded.20 Improper conduct by
the party claiming the expectation or changes in government policy may also
defeat a claim.21 In Hughes, the House of Lords explained
“the more the decision challenged lies in what may be inelegantly
described as the macro- political field, the less intrusive
will be the courts
supervision. Governments must be free to pursue policies in the public interest,
even if a change of direction
defeats expectations generated by an earlier
In this regard a fundamental tension exists between the public interest in holding an authority to promises made and the conflicting interest of allowing an authority the freedom to change policy as circumstances dictate.23 In addition, decision-makers are subject to a general requirement under administrative law that they will not embark upon any course of conduct that will prevent them from exercising the discretion given to them in each individual case.24
The doctrine of legitimate expectation may be incompatible with this requirement, because as Professor Joseph notes, on orthodox principles public bodies must retain the right to extinguish substantive legitimate expectations, whether or not the interested parties should have an opportunity to object.25
On the other hand, public bodies may enter contracts that fetter their
discretionary powers, provided the contract promotes the
functions or purposes.26 The need to uphold the requirements of
14 Vea v Minister of Immigration  NZAR 171 (HC).
15 Haoucher v Minister for Immigration and Ethnic Affairs, above, n 11, per Mc Hugh J at 681.
16 Council of Civil Service Unions v Minister for the Civil Service  AC 374 at 415 per Lord
17 Lawson v Housing New Zealand  2 NZLR 474 at 488.
18 Thames Valley Electric Power Board v NZ Forest Products Pulp & Paper Ltd  2 NZLR
641; R v Secretary of State for the Home Department; Ex p Ruddock  2 All ER 518 (QB).
19 NZ Maori Council v Attorney-General  1 NZLR 513;  1 AC 466 (PC); Council of Civil Service Unions v Minister for the Civil Service  AC 374.
20 R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators’ Association;  2 QB
299;  2 All ER 589;  2 WLR 1262.
21 Chen v Minister of Immigration  NZAR 261 (CA).
22 Hughes v Dept of Health and Social Security  AC 776,  2 WLR 866, HL.
23 Attorney General of Hong Kong v Ng Yuen Shiu  2 AC 629; 2 All ER 346 (PC); NZ Maori Council v Attorney-General  1 NZLR 513;  1 AC 466 (PC).
24 The Power Co Ltd v Gore District Council  1 NZLR 537 (CA) at 548, citing Birkdale
District Electric Supply Co Ltd v Southport Corporation  AC 355 per Lord Sumner at
25 Joseph, above, n 1, at 965.
26 The Power Co Ltd v Gore District Council, above, n 23, at
also mean that a contract that fetters powers will be upheld if to strike it down would be unfair or contrary to some legitimate expectation, or would amount to an abuse of discretion.27 One key factor that is considered in balancing these considerations is the nature of the expectation and the number of people affected. Where a policy induces an expectation of a substantive outcome affecting a small and specific group of people, this will be more likely to be sufficient to ground some reliance.28 By contrast, where the expectation is vague, and is not made to any person or specific group in particular, this will be less likely to require substantive compliance. In New Zealand Association for Migration and Investments Inc v Attorney-General,29 for example, the fact a policy “applied to a large number of individuals where no specific promises have been made, nor settled practice adopted” meant that while it had the potential for unfairness in some cases, it was not sufficient to ground a binding legitimate expectation.
In a general sense, legitimate means reasonable.30 The question
of whether or not an expectation is reasonable depends on the conduct of the
decision maker; what it had committed itself
to, and what the applicants
expected and were entitled to expect.31 Thus it cannot be based upon
a misinterpretation of an assurance, undertaking or dealing,32 or a
mere unsubstantiated belief of the person asserting it.33 The
representation on which the expectation is based must be clear and
unambiguous.34 Because legitimate expectation does not constitute
a form of public law estoppel, detrimental reliance need not be proven for a
expectation to arise.35 The two concepts do overlap, both
being based upon fairness and unconscionability of action, but as Professor
Joseph notes: “Estoppel
has its roots in private law and is unsuited to
public law needs”.36 But while proving detrimental reliance
is not necessary to establish a legitimate expectation, it will strengthen an
exists and that it would be unfair to thwart it.37 On
the other hand, decision-makers should not be constrained to continue a practice
they have voluntarily engaged upon to better the
quality of the decision making
process. To do so would punish them for taking their ‘best practice’
duty to consult seriously.
In Te Heu Heu v AG, Robertson J noted that:
27 Lemmington Holdings Ltd v Commissioner of Inland Revenue  NZHC 77;  2 NZLR 214; R v Inland
Revenue Commissioners, ex parte Preston  UKHL 5;  1 AC 835;  2 All ER 327.
28 R v North and East Devon Health Authority; Ex p Coughlan  QB 213.
29 New Zealand Association for Migration and Investments Inc v Attorney-General  NZAR
45 at 62.
30 Attorney General of Hong Kong v Ng Yuen Shiu  2 AC 629; 2 All ER 346 (PC).
31 University of Auckland v Tertiary Education Commission  2 NZLR 668 (HC).
32 Lawson v Housing New Zealand  2 NZLR 474.
33 Te Heu Heu v A-G  1 NZLR 98.
34 Ng Siu Tung v Director of Immigration (2002) 1 HKLRD 561.
35 Minister for Immigration and Ethnic Affairs v Teoh  HCA 20; (1995) 183 CLR 273; R v Secretary of State for Education and Employment; Ex Parte Begbie  EWCA Civ 2100;  1 WLR 1115; R (Bibi) v Newham London Borough Council  EWCA Civ 607;  1 WLR 237.
36 Joseph, above, n 1, at 965.
37 R v Secretary of State for Education and Employment; Ex P Begbie  EWCA Civ 2100;  1 WLR 1115; R (Bibi) v Newham London Borough Council  EWCA Civ 607;  1 WLR 237.
38 Te Heu Heu v AG  1 NZLR 98.
... it is important that the courts do not quickly find a willingness to talk
has given rise to a Legitimate expectation when all
it has done is demonstrated
an openness of process and a willingness to be receptive to ideas.
This principle was affirmed in NZ Assn for Migration and Investments v
A-G,39 where a prior practice of information sharing and
co-operation was considered to simply reflect a degree of good faith existing
the parties, and did not establish a binding expectation of prior
consultation about policy changes and their implementation. A balancing
the competing public interest factors involved will again be
III. Specific Issues Relating to Applications
In addition to the general considerations applying to all arguments of legitimate expectation, applications for benefit raise a number of specific policy considerations. The operation of these factors is illustrated by the distinction drawn by the courts between so-called ‘license’ or ‘forfeiture’ cases and ‘application’ or ‘membership’ cases’. In McInnes,41 Megarry VC explained that license or forfeiture cases involve a decision which takes away some existing right or position, as where a member of an organization is expelled or a license revoked, and as such the right to an unbiased tribunal, to take notice of the charges and to be heard in answer to these charges will apply.42 By contrast, in application or membership cases, the decision involves a refusal to grant the applicant the right or position that they seek, such as membership of the organization, or a license to do certain acts. Nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity to be heard in response to the charges. Instead there is the far wider and less defined question of the general suitability of the applicant for membership or a license. The distinction is well recognized, for in general it is clear that the courts will require natural justice to be observed for expulsion from a social club, but not on an application for membership to it. As a result, the question of whether a particular case is a license or a membership case often becomes a key element in arguments as to the existence of a legitimate expectation.43 According to De Smith, the distinction hinges on the existence of a vested interest to defend, because as opposed to the holder of an existing benefit, an “applicant will be adversely affected by a refusal of something which he does not yet have only to the extent that he is disappointed and may have suffered some “transaction costs” in the process of the application.”44
This approach can also be justified on the traditional principles of
when an expectation can be reasonably expected to arise,
for an ongoing pattern
of substantive action provides a stronger basis from which to infer a legitimate
expectation than representations
in relation to action that is only
39 NZ Assn for Migration and Investments v A-G  NZAR 45 at 61-64 (HC).
40 Hughes v Dept of Health and Social Security  AC 776 at 788 (HL).
41 McInnes v Onslow Fane, above, n 2, at 218.
42 Ridge v Baldwin  UKHL 2;  2 All ER 66 at 114.
43 White v New Zealand Stock Exchange & Anor  NZAR 297.
44 De Smith, Woolf & Jowell, Judicial Review of Administrative
Action, (5th ed, Sweet & Maxwell, London, 1995)
a possibility in the future. In broad terms, legitimate means
reasonable,45 and therefore imports a requirement that the
expectation is one that is sufficiently strongly grounded so as to sustain a
that it would at least be closely considered before action is taken
which overrides it. Generally it will be difficult to establish
that a decision
maker has a sufficiently proximate relationship with an applicant, particularly
as proving a legitimate expectation
requires showing not only that the
applicants expected some benefit, but that they were reasonably entitled to do
so.46 Flowing out of this distinction is the implicit
principle that an application, compared to a licence, generally provides a mere
of achieving the substantive outcome desired, and “a hope is not an
expectation in public law terms”.47 While this classification
will often be an accurate one in terms of the ability of the party to
successfully sustain an argument of
a legitimate expectation the issue of
causation must be examined further. In a great number of cases where the
distinction is said
to preclude the existence of an enforceable expectation,
the failure is simply attributable to the threshold requirements imposed
normal principles, and is entirely unrelated to the particular nature of the
IV. The True Principle of Mcinnes v Onslow-Fane
In McInnes v Onslow-Fane,48 where the notion of a “mere hope” was first used, Megarry VC noted the “substantial distinction between the forfeiture cases and the application cases”.49 In application cases nothing is being taken away, and in normal circumstances no charges are involved, so there is also no requirement that an opportunity is given to answer those charges. However, his honour also considered that clear and exhaustive classification of these cases would not be possible, and as a result argued for at least the existence of a further class that he called the expectation cases. Such cases would differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that their application would be granted, like where an existing licence-holder must apply for renewal or a person already elected seeks some confirmation from a higher authority.50
The addition of the category implies the need for a substance over form
approach. Without this the requirements of natural justice
could be defeated by
simply transferring the claim into one involving an application, like by
considering matters of discipline only
upon reapplication after expiry, and not
at the time they arise. So while classification as either an application or a
may provide a useful starting point for the courts, ultimately it
must subordinate the particular facts of each case.
45 Attorney General of Hong Kong v Ng Yuen Shiu  2 AC 629; 2 All ER 346 (PC).
46 University of Auckland v Tertiary Education Commission  2 NZLR 668 (HC).
47 Ibid; White v New Zealand Stock Exchange  NZAR 297 (HC); Haoucher v Minister for
Immigration and Ethnic Affairs  HCA 22; (1989) 169 CLR 648.
48 McInness, above, n 2.
49 Ibid at 218.
50 Weinberger v Inglis (No 2)  AC 606; Breen v Amalgamated Engineering Union (1971)
2 QB 175; Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149; R v Barnsley
Metropolitan Borough Council; Ex parte Hook  1 WLR 1052.
“Expectation cases”, for example, although in form involving not forfeiture but a mere application that fails, nonetheless involved a legitimate expectation of confirmation or renewal of the applied for item which raised the question of “what had happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.”51 As a result, the fact an applicant may have a “mere hope”, and not an expectation may simply denote that that person has fallen short of meeting the legal rigours required to meet that threshold, and not that there is a blanket classification which prohibits a particular form of action from ever sustaining a finding of legitimate expectation. The case on the facts was an example, involving an applicant who had made five consecutive prior applications for the license in question and had all of them declined. As a result there was no factual basis on which such an expectation could be considered reasonable, a finding that is clearly consistent with the orthodox principles applying to all cases of legitimate expectation.
An equivalent case considered by the New Zealand Court of Appeal that same year reached a similar conclusion. Stininato v Auckland Boxing Association52 also involved an applicant for a boxing licence, and one who had held such a licence in the past. During the period the applicant held the licence, a number of complaints were received about him that the
Association considered well founded. Because the appellants licence was due to expire within a few months, and it was clear no association in New Zealand would employ him in the intervening period, the council decided to take no action and simply allow his licence to lapse, with the intention of avoiding the difficulties associated with terminating an existing benefit. A letter was sent telling him that the complaints had been received, but that the council had decided to take no action. Upon expiry of the initial licence, the appellant applied for a new licence but was rejected on the basis of those previous incidents. He then made a number of subsequent applications, all of which were unsuccessful. The appellant then sought judicial review of the decisions on the basis that when the council refused to grant him a licence they acted unfairly by failing to indicate to him, before reaching a decision as to the granting of the licence, that they intended to take into account the views which had been arrived at when the initial complaints were received.
While on the facts the members of the Court concluded that no breach of
proper procedure had taken place, all agreed that the fact
the Association had
handled the situation so as to deal with his case as an application and not a
termination did not allow them
to evade the general requirements of procedural
fairness in considering that application. Cooke J (as he then was), concluded
Taking all those points together, I think that a refusal by the council of a
professional boxer’s licence application, for misconduct
giving him any opportunity of answering the charge, is well capable of being
regarded as an unreasonable restraint
51 McInnes v Onslow-Fane  3 All ER 211 (CA).
52 Stininato v Auckland Boxing Association  1 NZLR 1.
53 Ibid per Cooke J (as he then was) at 24.
of trade and a breach of natural justice. In substance that is what the
appellant alleges happened here. In my opinion, proof of such
give the court jurisdiction to grant a declaration; and in some cases an
injunction would be appropriate.
Many years down the track, the difficulty of applying the simple
classification of the licence/application approach remains. In the
Court case of White, Gendall J noted that:54
Whilst categorization may assist in some circumstances, and lawyers
delight in the precision said to arise from such an exercise-
the obligation to
afford procedural fairness, in the sense of a right to be heard, is a general
one. It depends upon the nature of
the power exercised, the interests of the
person affected and any perceived or actual detriment, whether a person has
been led to
believe that a hearing will occur, and there may be other general
aspects of “fair play in action”.
One simple alternative would be for the distinction to create a starting presumption which was ultimately subject to the same evidential burdens applied to all other cases of legitimate expectation. For while the licence/ application distinction is founded on reason, the utility that it provides is largely subsumed within the larger question of whether on all the facts of a particular case the relevant factors in establishing a legitimate expectation have been met. The fact an argument of expectation involves an application would simply become another factor in the decision, and not the decision itself, or as some have put it, it would be a starting point but not the finish line.55 To do so would in some respects recognize the criticisms made of the doctrine of legitimate expectation as a whole- that it is overly complex and adds little to established existing principle.56 Megarry’s “expectation” classification, for example, which recognizes the existence of applications that “in form”57 raise the same sort of expectations of a license case, provides an example of how a more flexible approach to classification could be applied.
This level of emphasis also seems appropriate when we consider the
original purpose for which the distinction was used. In each
of the cases
discussed above, the need to consider the licence/application distinction
arose from the fact that they involved
non-statutory bodies for which it was
necessary for the courts to establish the jurisdictional question of whether
they were open
to review. Traditionally, the right to review was said to arise
from the fact that members of such a club had a contractual relationship
that gave rise to obvious obligations absent of a mere applicant. As Salmon LJ
explained in the foundational case of Nagle v
There can be no doubt that it is permissible to exclude anyone for any reason
or no reason from membership of a social club just as
anyone (unless he has a
statutory right of entry) may be excluded from one’s home. Once however, a
man is elected to a club,
he acquires contractual rights and cannot be expelled
save in accordance with its rules and processes which do not offend against
54 White v NZ Stock Exchange  NZAR 297 at 309.
55 Halsbury’s Laws Of England, Administrative Law- Volume 1(1) (2001 Reissue, Judicial Control, Procedural Fairness, Natural Justice in General: 96. Application and Scope Of The Duty To Act Fairly.
56 R v North and East Devon Health Authority; Ex p Coughlan  QB 213 at 645-646 (CA);
Daganyasi v Minister of Immigration  2 NZLR 130 at 141 per Cooke J (CA).
57 McInnes, above, n 2 at 218.
58 Nagle v Fielden  1 All ER 689 per Salmon LJ at
However even in that situation, the existence of an existing relationship was
not necessarily determinative, with exceptions being
made where a private
body held a monopolistic or ‘closed shop’ style control over an area
of significant importance to
the lives of citizens.59 So not only
is the distinction not an absolute, it is also a specific private law concept,
with no general application to government
bodies whose amenability to review
does not rest upon a purported contractual basis.
V. Treatment by the New Zealand Courts
Examination of the decided New Zealand cases reflects this limited
application, with no mention of the distinction made in any of
the cases that
involve a direct statutory body.60 As a result, treating the
application/licence distinction as simply a rebuttable presumption, or even
doing away with it entirely,
would not result in any real change to the ambit of
judicial review. Focusing solely on applying the orthodox criteria to
retains the greatest hurdle to establishing legitimate expectation
on an application - establishing that there was a sufficiently
unambiguous course of conduct to give rise to a reasonable expectation. The law
would therefore continue to recognise
that while a legitimate expectation may
arise to protect an interest less than a recognised legal right, it will not do
This is an important consideration, for as Cooke J noted in
Stininato v Auckland Boxing Association Inc,61 while
legitimate expectation is undoubtedly an area of ongoing development, that does
not give a basis for allowing the doctrine to
creep further into new areas of
application unless there is a principled basis to do so. Indeed:
... concern for the development of administrative law as an effective and
realistic branch of justice must imply that the discretionary
not be granted lightly. After all, progress is not synonymous with giving
judgement for the plaintiffs.
The need to proceed with caution has been reflected in the approach taken by the New Zealand courts in dealing with arguments of legitimate expectation made with regards to an application for benefit, and show that even if an application were able to sustain a legitimate expectation, proving that on the facts would be very difficult.
One of the most recent of these cases, Attorney-General v E,63
is a case in point, and involved an application for a temporary New
Zealand visa by immigrants seeking refugee status. From the outset,
it is worth
noting that while the area of immigration policy is one in which legitimate
expectation is often argued,64 it is a particularly difficult area in
which to obtain a favourable
59 Ibid, affirmed in White v NZ Stock Exchange & Anor  NZAR 297.
60 See the detailed examination of the New Zealand cases later in this paper.
61 Stininato v Auckland Boxing Association Inc  1 NZLR 1 (CA) at 29.
63 Attorney-General v E  3 NZLR 257.
64 See, for example, Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR
648; NZ Assn for Migration and Investments v A-G  NZAR 45
(HC); Lalli v Attorney- General (Minister of Immigration)  NZAR
720; Ng Siu Tung v Director of Immigration  HKCFA 6; (2002) 5 HKCFAR 1 and Vea v
Minister of Immigration:  NZAR 171 (HC).
outcome. As the Court of Appeal noted in Ashby v Minister of Immigration:
“It has long been established that immigration policy is a sensitive
and often controversial political issue.” 65 As a
Subject to compliance with the statute and other legal obligations,
substantial weight will normally be accorded by the Courts to
perceptions of the national interest inherent in the setting of immigration
policy and its necessary review from time
Notwithstanding this contextual difficulty, the applicants in the case argued that an Immigration Service Operations Manual created a presumption that temporary Immigration permits would be issued to refugee claimants. In the High Court, Fisher J considered the breadth of discretion expressed in the governing Immigration Act 1987, the provisions of the Manual, a United Nations convention referred to by the Act, evidence from an Immigration service official that temporary permits are normally granted to refugee status claimants, and s 22 of the New Zealand Bill of Rights Act 1990. He concluded that the combination of these factors meant that there was intended to be a strong, although rebuttable, presumption in favour of granting temporary permits which he saw as providing a basis for a legitimate expectation. While the judge himself stated that the decision was prepared “under some urgency”,67 it is relevant to note that at no point did he consider the fact this was an application for a desired benefit as impacting upon the legitimacy of the argued expectation.
On appeal to the Court of Appeal, however, the decision was overturned by 4-1
majority, the Court concluding that relevant conduct
fell well short of meeting
the requisite standard of a legitimate expectation in the binding legal sense.
The Court considered that:
... we are unable to read into (the section of the manual) or the practice
adopted anything more than a recognition that in the general
run of cases
claimants are likely to be granted temporary permits and that if a permit is
granted it will normally be a visitor permit.
That is a considerable distance
from imposing a fetter on the clear statutory discretion, particularly one of
the seriously inhibiting
Unfortunately, the Court made few statements as to the nature of
doctrine in general, simply stating that: “with respect,
we do not see
this as a case of legitimate expectation’.69 No comment at
all was made about the impact of the expectation arising from a new application
for benefit as opposed to some change
to an established course of affairs. As a
result, Attorney-General v E appears to provide only a reminder of the
clear and unambiguous representation necessary for a successful argument of
legitimate expectation,70 and cannot be treated as an authoritative
determination of the fact that people applying for a substantive benefit cannot
hold a legitimate
expectation that benefit will be received.
65 Ashby v Minister of Immigration  1 NZLR 222, 230-231 per Richardson J.
67 Attorney-General v E  NZAR 354 at 363.
68 Attorney-General v E & Ors  3 NZLR 257, per Richardson P, Gault, Henry and Keith
JJ at 270.
69 Ibid at 269.
70 Ng Siu Tung v Director of Immigration (2002) 1 HKLRD
The failure of the Court of Appeal to make a determinative finding on the
relevance of legitimate expectation to applications for
benefit is particularly
unfortunate considering the existence of a number of High Court decisions that
make differing comments upon
the issue. One of the first of these was the
decision of Williams J in Vea v Minister of Immigration,71
which involved an application for residency by a Tongan over stayer
during a declared amnesty by the Immigration Service. Although
the applicant did
not expressly plead legitimate expectation, the judge considered that it was
implicit in the factual matrix, in
which the Immigration Service failed to
consider his application within a reasonable time, and then declined that
the basis of an incident which had occurred some time after it
had first been made. His honour noted the comments of the Privy Council
Attorney-General of Hong Kong v Ng Yuen Shiu that:72
When a public authority has promised to follow a certain procedure, it is in
the interest of good administration that it should act
fairly and should
implement its promise so long as implementation does not interfere with its
and concluded that the existence of both express and implied representations
by the Immigration Service were sufficient to ground
a claim of legitimate
expectation. Unlike in Attorney General v E, there was:
... little doubt that the Immigration Service Circular, and statements made
both orally and in written form to the applicant on the
basis of the circular,
could be characterised as representations that the Immigration Service would act
in a certain way or take
a certain view of Mr Vea’s application.
Although the issue was not expressly considered, it was implicit in the finding that there is nothing inherent in an application for benefit that means only a “hope” and not an “expectation” would exist. Thus where an applicant can prove on ordinary principles that a reasonable expectation existed in the legal sense, the Court would act to protect that expectation, in this case by declaring that the Immigration Service was not entitled to refuse Mr Vea’s application on the basis that s 7 of the Immigration Act precluded him from the grant of residence.74
In NZ Association for Migration and Investments Inc v Attorney General,75
Randerson J also considered an immigration case in which an argument of
legitimate expectation was made, this time involving visa
expected that their applications, which were filed but not processed before a
date for policy changeover, would be
determined in accordance with the old
policy. Compared to the relatively simple application of legitimate expectation
in Vea, the Judge noted the complex matrix of factors which
will impact on the decision as to whether a disappointed assumption was
to ground a legitimate expectation in the legal sense, stating
71 Vea v Minister of Immigration  NZAR 171 (HC).
72 Attorney-General of Hong Kong v Ng Yuen Shiu  UKPC 2;  2 All ER 346 at 351.
73 Vea v Minister of Immigration  NZAR 171 at 180.
75 NZ Association for Migration and Investments Inc v Attorney General  NZAR 45 (HC).
76 Ibid at 55-56.
It is clear that the approach adopted by the Court in legitimate
expectation cases involving policy changes will be very much fact
response will depend on a range of factors including the degree of specificity
of the promise; the significance of
the consequences to the individual or class
concerned if the promise is not kept or the prior practice not followed;
decision maker has given proper consideration to the position of the
affected parties; what provision, if any, has been made to accommodate
affected by way of transitional provisions, whether by the creation of
exceptions from the application of the new policy or
by compensation or
otherwise; and the nature and strength of any countervailing public interest
factors justifying the course proposed.
On the facts of the particular case, the judge concluded that while there may have been members of the plaintiff ’s association who held some assumption that the previous policy would be applied to their case, and even expended substantial time and effort on the basis of that assumption, it was not sufficiently specific or certain so as to give rise to a legitimate expectation in law.77 Nor would any assumption lead to such a finding unless it could be shown that there was a promise or settled practise to that effect.78
The unfairness of the case was regrettable, but applied to a large number of individuals to whom no specific promise had been made or settled practise established, and as such was not enough to make the change invalid. Again it is important to note that the fact this was an application for benefit, as opposed to an expectation arising in a different manner, was not considered relevant. Instead the case was simply determined according to the ordinary principles of when an expectation would arise in the traditional sense, and fell short upon that standard.
In White v New Zealand Stock Exchange & Anor,79
legitimate expectation arising under an application was considered
outside the often difficult area of immigration. The case involved
who partway through his career came to require membership of the New Zealand
Stock Exchange. He was denied this membership
because of a past proven case of
dishonesty, and appealed to the membership appeals board, arguing that he had a
to a substantive hearing in order to explain the past
dishonesty, and that in simply denying his application the requirements of
natural justice had been breached. Because the case involved an application to a
non-statutory organization, the licence/application
distinction became a major
factor in the case, Gendall J going back to the fundamental principle laid out
in Nagle v Feilden80 that the requirements of natural justice
would only apply to an application to a non-statutory body where it constituted
association”, that “controlled certain trades
or spheres of human activity in which no man can earn his living unless
admitted to membership of the association”.81 Yet even in such
a strictly delineated area of application, the judge questioned the utility of
the distinction, stating that strict
classification was of less value than the
factual determination of whether there was a valid expectation in the particular
case.82 Because the
77 Ibid at 61.
78 Ibid at 60.
79 White v New Zealand Stock Exchange & Anor  NZAR 297.
80 Nagle v Feilden  1 All ER 689 at 698-699.
81 Ibid at 698-699.
82 White v New Zealand Stock Exchange  NZAR 297 at
obligation of fairness was a general one, a blanket rule that one particular form of claim, like an application, would not succeed could not be made. Thus while the facts of this particular case were not considered to sustain such an expectation, the judge considered that there would certainly be cases in which it would, the obvious example being the established exception of applications which pertained to a person’s ability to work.83 Again this approach is consistent with the suggestion that where the distinction arises, it should be treated as a relevant but not determinative factor.
One example given by the judge was where a candidate sought admission as a
barrister and solicitor. His honour noted that: 84
A certificate of character is required from the Council of a District Law
Society. Lists of candidates for admission are notified
to the profession. If an
objection alleging some wrongdoing on the part of the candidate was
forthcoming, fairness would require
that he be told of this, so that at least it
could be answered. A formal oral “hearing” may not be required, but
to respond is.
In that case, the seriousness of the application would make it reasonable to expect that the principles of procedural fairness would be applied, and thus the presumptions arising from the fact the case involved a “mere application” for an unattained benefit would be overcome by the ability to nonetheless prove the expectation was a reasonable one in accordance with orthodox principles.
So even in the limited circumstances where the distinction arises, it is
already being treated as a starting point and not the finishing
line. This is
not surprising in light of the general reluctance to establish fixed rules of
application in administrative law. As
Cooke J noted in
The requirements of fairness or natural justice vary with the facts. If authority still be needed for that truism, it is enough to cite the latest House of Lords case on the subject: Fairmount Investments Ltd v Secretary of State for the Environment.[Fairmount Investments Ltd v Secretary of State for the Environment  1 WLR 1255, 1265;  2 All ER
865, 874, per Lord Russell of Killowen].
Taking the New Zealand cases on the matter as whole then, perhaps it is
unsurprising that there has not been any definitive statement
as to the
relevance of an argument of legitimate expectation arising in the context of an
application, for in the majority of cases
which involve statutory bodies it is
not a relevant issue, and in those few cases where it is relevant, exceptions
tend to be made
where the gravity of the situation warrants
83 De Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edition (Sweet & Maxwell, London, 1995) [8-022] to [8-026].
85 Stininato v Auckland Boxing Association (Inc)  1 NZLR 1
86 See for example the discussion of Stininato (above, n 52) and White (above, n 54), where the
Courts were willing to make an exception had the particular facts imported
VI. Erosion of the Distinction in Other Jurisdictions
Overseas authority also reflects that while the licence/application distinction provides one means of assessing what fairness requires in a particular situation, it should always be regarded as a starting point for analysis and not a definitive conclusion. In the United Kingdom, applications for a number of different types of benefit have been held to warrant a hearing, particularly where the failure to grant the application will cast some aspersion upon the applicant’s character. The need for a hearing will be particularly important where the application is considered according to broad and potentially ambiguous grounds, which in the absence of an opportunity to be heard would make it difficult for the applicant to contemplate where the focus of their submissions should lie. In R v Secretary of State for the Home Department, ex p Fayed,87 for example, an application for citizenship by a prominent Egyptian family was held to sustain the legitimate expectation of a fair hearing because of both the obvious substantive benefit they would be deprived of and the likely damage to their reputation it would cause. Lord Woolf MR explained that the legitimacy of this expectation was accentuated by the “rather nebulous” criteria used in judging such applications, which reinforced the need for court supervision in order to ensure that procedural fairness was adhered to.88
In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte
Everett, the English Court of Appeal came to a similar conclusion with
regards to an application for a passport by an English citizen living
Despite there being outstanding warrants for the arrest of the man in the United
Kingdom, this being the reason his application
was denied, the Court held that
the requirements of fairness still imported the need for him to be given reasons
for being declined
so as to allow him the opportunity to respond, should
exceptional circumstances that justified an exception from the standard policy
exist. The potential for a legitimate expectation to arise in application cases
is not limited to those which involve personal reputation.
In R v Huntingdon
District Council, ex p Cowan,89 a commercial applicant for an
entertainers licence was held to be entitled to be told of all information on
which the decision was
to be founded and given an opportunity to make
representations orally or in writing by virtue of the overall scheme of the
Again “that truism”90 of administrative law,
that the requirements of fairness will hinge upon the particular circumstances
of the case, will again prevail
over any definitive
87 R v Secretary of State for the Home Department, ex p Fayed  EWCA Civ 946;  1 All ER 228.
88 Ibid per Lord Woolf MR at 237-238.
89 R v Huntingdon District Council, ex p Cowan  1 All ER 58,  1 WLR 501.
90 Stininato v Auckland Boxing Association (Inc) and Others  1
NZLR 1 per Cooke J at 29.
In Australia, the licence/application distinction has generally been considered of little significance in cases of legitimate expectation, being used in only the traditional sense of determining the amenability of clubs and domestic organizations to review. In Haocher, the High Court of Australia recognized the distinction between a mere hope and a bona fide expectation, but at least in the context of the review of a statutory body, treated the concept as simply a reflection of the high onus involved in establishing a legitimate expectation in the administrative law sense.91 On the facts, they concluded that a resident who applied for review of a deportation order did have a legitimate expectation that the findings of the appeal authority would not be overturned without a hearing being given. A series of other cases have reflected the principle that the primary problem with sustaining an argument of legitimate expectation on an application for benefit is simply the need to meet the threshold required, and not the existence of a principled base that precludes such a finding as a general rule.
In McDade v State Rail Authority,92 for example, guidelines
for determining promotions in a fair and unbiased hearing were held to generate
a legitimate expectation of
a person applying for promotion that the procedure
will be followed, although that case could be explained at least in part on the
traditional ‘right to work’ exemption. This exemption may also
stretch to pensions or other government benefits: in Courtney v Peters,
93 an applicant seeking to establish eligibility for the grant
of a pension was held to have an interest affected so as to imply procedural
fairness. In Consolidated Press Holdings Ltd v FCT,94
taxpayers making an application to the Commissioner of Taxation were held
to have a legitimate expectation that the material they
provided in support of
that application would not be communicated to anyone outside that office without
them first being consulted,
and thus being given the opportunity to consider the
impact that action may have upon their applications. That same year the
courts in Re Murphy and Minister for Minerals and Energy95
considered it at least arguable that applicants for assignments of
mining leases held a legitimate expectation that further material
sought from the applicant if it was necessary in order to grant that
91 Haocher  HCA 22; (1990) 169 CLR 648 (HCA) per McHugh J at 682.
92 McDade v State Rail Authority (1985) 4 NSWLR 383 at 391-5.
93 Courtney v Peters  FCA 526; (1990) 27 FCR 404; 22 ALD 557; 98 ALR 645 at 652.
94 Consolidated Press Holdings Ltd v FCT  FCA 1367; (1995) 57 FCR 348; 129 ALR 443 at 452, 453 per
95 Re Murphy and Minister for Minerals and Energy (1995) 2 QAR 94
In light of both New Zealand and overseas authority it is clear there is no
binding rule of policy that applications for benefit cannot
sustain a legitimate
expectation. Such applications may face greater obstacles to meeting the general
threshold involved, but they
are not predestined to fail. Nor should they be,
for the application/licence distinction is a private law concept that has
or no application in a public law context. The pseudo-contractual
analysis it is founded on is not relevant to public bodies, as
to review is based upon different grounds. In practice, the courts may often
find that there is no legitimate expectation
in application cases due to the
remoteness of the relationship between the parties. Such a finding only affirms
the adequacy of the
general principles to application cases. In particular, the
requirement that an expectation be reasonably held ensures that findings
legitimate expectation are not made too readily, while maintaining the
discretion necessary for ongoing fairness. According to
Lord Cooke, it is a
truism that the requirements of procedural fairness depend on the particular
facts of a situation. On this basis
alone, prescriptive rules of policy like the
licence/application distinction should be avoided wherever possible. The case
strengthens where the rule also lacks a principled foundation. The
quest for simplification may be a defining test of the doctrines
some judges already raising questions about its ongoing
96 The argument that legitimate expectation is overly complex and does not materially add to the abuse of power and substantive unfairness grounds of review is noted by Joseph, (above, n 1) for example, at 966, and led the English Court of Appeal in R v North and East Devon Health Authority; Ex p Coughlan  QB 213 at 645-646 to couch a simpler test of whether reneging on a promise was ‘so unfair [as to] amount to an abuse of power’.