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• Background
• The Problems

2. Judicial review: the problems

BACKGROUND

49 THE COURTS have increasingly asserted a right to review government

decisions and other decisions seen as having a public content.[50] Judicial review in New Zealand derived from the English common law prerogative writs and the public law manifestations of provisions for declaratory and injunctive relief. These remedies were received into New Zealand law. But the complicated procedural rules which governed them were a major obstacle to litigants. Deficiencies in these processes led to the enactment of the JAA(72) and the Judicature Amendment Act 1977 (JAA(77)) to simplify the procedure. The legislation was based on a draft Bill prepared by the Public and Administrative Law Committee (in turn based upon the Judicial Review Procedure Act 1971 of Ontario).[51] The Act provided for a single action, known as an application for review, which would enable applicants to claim any relief that they would have been entitled to in proceedings for mandamus,[52] certiorari,[53] declaration,⁵⁴ prohibition⁵⁵ or injunction.[56] The action had to relate to the exercise, refusal to exercise, proposed or purported exercise of a statutory power.[57]

50 The JAA was not intended to bring about significant substantive change, but rather to simplify the procedures for applying for relief and to extend the nature of the relief that could be granted. In its fifth report the Public and Administrative Law Reform Committee[58] stated:

The proposed bill to introduce the new remedy effects procedural changes only and does not attempt, as it might have done, to codify the grounds of an application or to enumerate the tribunals to which the new procedures apply or in any other way to alter (except to the extent noted below) the remedy that may be granted on such an application. The exception relates to the Court’s power to refer a matter back to the tribunal for further consideration and decision, and to validate a decision defective in form or because of technical irregularity. A review of the grounds for an application will form part of our future programme.

The JAA did not abolish the old remedies which continued as an alternative to the new application for review, although it was expected that the old actions would wither away as practitioners became used to the new proceedings.[59]

51 Parliament refrained from attempting to codify the substantive law. It has allowed the High Court to exercise its general jurisdiction under section 16 of the Judicature Act 1908:

The Court shall continue to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.

For the most part procedures are settled by rules made by the Rules Committee under section 51C of the Judicature Act 1908. They include the rules made under Part VII, known as the “extraordinary remedies”, providing as to the exercise of the ancient procedures of certiorari, mandamus, quo warranto and the power of injunction. Flexibility is maintained by rule 9 of the HCR.[60]

52 The statutory procedure for judicial review has been highly successful. It has allowed New Zealand to compete with, and in many respects surpass, comparable jurisdictions in the provision of effective and acceptable processes for judicial review. There has been a revolution in appreciation by those who exercise public functions of the need when doing so to comply with the law; we do not doubt that that has been significantly influenced by the efficient and accessible procedures of the JAA(72) and JAA(77), as well as other reforms, including the Official Information Act 1982 and the legislation effecting state sector reforms.

53 But it has too often been necessary to have recourse to the extraordinary remedies.[61] The continuation for nearly three decades of a split jurisdiction for judicial review is unacceptable. The present reference was initiated to review the procedure.

THE PROBLEMS

54 Problems with the JAA became apparent soon after its enactment. The restriction of applications for review to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power[62] excluded a number of situations in which relief could be obtained under the common law.[63] In an attempt to resolve these problems, the JAA(77) was passed extending the definition of “statutory power”. Fortunately, again no attempt was made to achieve codification.[64]

55 In most cases of judicial review the JAA can be employed as the mechanism by which to bring proceedings. But because it is limited to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, in a significant number of cases it cannot. In some cases, determining whether the JAA or the common law procedures should be used can be problematic and confusing. For example:

• The statutory remedy does not cover decisions made by the Crown in the exercise of the prerogative.[65] In Burt v Governor-General the applicant had been tried and convicted for murder. His application to appeal the conviction was dismissed by the Court of Appeal, and the Governor-General declined his petition to exercise the prerogative of mercy and grant a full pardon. The applicant applied for judicial review of the Governor-General’s decision. The Court of Appeal held that while the exercise of a prerogative power was not a “statutory power of decision”,[66] in the right circumstances it could be subject to judicial review:[67]

... the claim that the Courts should be prepared to review a refusal to exercise the prerogative of mercy, at least to the extent of ensuring that elementary standards of fair procedure have been followed, cannot by any means be brushed aside as absurd, extreme or contrary to principle. For example, it is obvious that allegations in a petition, unless patently wrong, should be adequately and independently investigated by someone not associated with the prosecution: the Court could at least check that this has happened.

• It can be unclear whether the statutory remedy covers decisions by non-statutory bodies. In Finnigan v New Zealand Rugby Football Union Inc[68] the applicants sought a declaration that the Football Union was acting ultra vires by deciding to accept the invitation of the South African Rugby Board for a New Zealand representative rugby tour of South Africa. The applicants also sought an injunction to prevent implementation of the decision. The Football Union challenged the standing of the applicants to make such application. While accepting that judicial review was available, Cooke P found it unnecessary to declare whether it was available under the common law or the JAA, stating:[69]

While technically a private and voluntary sporting association, the Rugby Union is in relation to this decision in a position of major national importance ... . In truth the case has some analogy with public law issues. This is not to be pressed too far. We are not holding that, nor even discussing whether, the decision is the exercise of a statutory power – although that was argued. We are saying simply that it falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn.

• Similarly, in establishing that Royal Commissions of Inquiry are subject to judicial review under the common law where their findings may have the effect of damaging a person’s reputation,[70] the Privy Council did not determine whether the JAA might also apply:[71]

As jurisdiction exists at common law we do not find it necessary to determine some of the difficult issues which arise in relation to the Act. In particular we express no opinion on the much debated question of whether the words “rights” in the definitions of “statutory power” and “statutory power of decision” in s 3 of the Judicature Amendment Act 1972 are wide enough to include the findings of a Commission of Inquiry the effect of which is to damage reputation or expose a person to risk of prosecution.

56 The problem of the statutory limits of the JAA has increased as the scope of the common law remedy has expanded. As a consequence, the statutory based “application for review” has not supplanted the common law actions as was expected. Recourse has been required to the extraordinary remedies in Part VII of the HCR[72] instead of to the JAA, or both have been offered in the alternative.

57 Section 6 and rule 628 effect a limited linking of the procedures for the extraordinary remedies to those for the statutory application for review. Section 6 provides that:

[w]here proceedings are commenced for a writ or order of or in the nature of mandamus, prohibition, or certiorari, in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, the proceedings shall be treated and disposed of as if they were an application for review.

Rule 628 provides:

(a) The procedure prescribed in Part I of the Judicature Amendment Act 1972 shall apply, subject to these rules, to applications for review under that Part.

(b) Section 9 of the Judicature Amendment Act 1972 shall apply in respect of an application for review under Part I of that Act as if the reference to a motion were a reference to a notice of proceeding filed in accordance with these rules.

(c) In an application for review under Part I of the Judicature Amendment Act 1972, a Judge may exercise the powers conferred by section 10 of that Act.

Rule 628 provides some but limited direction for practitioners attempting to navigate the dual procedures for judicial review.

58 In addition to its jurisdiction under section 16 of the Judicature Act 1908[73] and under the JAA, the court may have recourse, in respect of claims at public law, to the statutory jurisdiction under the Declaratory Judgments Act 1908. The Declaratory Judgments Act 1908 extends beyond judicial review.[74]

59 While the range of overlapping options and their underlying concepts is well understood by specialists, in other hands it is, at best, awkward and potentially confusing and therefore productive of injustice. The need for reform has been repeatedly proclaimed.[75]