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60 AT PRESENT THE JAA is made up of both substantive law[76] and procedural
provisions.[77] The HCR contain further procedural rules,[78] and regulate the procedures for the old common law remedies. Whilst the JAA is relatively straightforward, access to the common law remedies is via a more convoluted route.
61 At first sight the simple course is to amplify the Judicature Act 1908 to the minimum extent necessary for that purpose and leave the detailed rules within the HCR. But after careful thought and the advice of our expert consultants that course is not proposed.
62 The following options have been considered:
(1) Codification by statute of the substantive and procedural law of judicial review.
(2) By way of variant, setting out in an amendment to the JAA the substantive law as to judicial review and providing in the HCR for the procedures.
(3) Refer in general terms in a statute or rules to the different causes of action recognised by the former writs, a practice seen in various forms in different jurisdictions.
(4) Recognise that the substantive law is essentially judge made and to refrain from codification, providing for legislation only when considering the minimum required and leaving procedure to be dealt with in the HCR. This could be achieved by substituting for the procedural provisions in the JAA and the HCR a single procedure applying to all situations other than appeals where the High Court has the power to set aside decisions.
63 Each is discussed in turn. After careful consideration of the issues by the expert consultants, the preference expressed in this Paper is for the fourth option.
64 In its twelfth report the Public and Administrative Law Reform Committee recorded that it had been considering the option of codification. It recited the logical arguments in favour of this course:[79]
First, because it would clarify the law and thereby make it more accessible to members of the public and their legal advisers; or
Second because it would change the balance of the law in some appropriate way, for instance by increasing (or decreasing) the extent of judicial review.
The Committee however pointed out that:[80]
Far from clarifying the law, legislation might have the opposite effect. First, while the statute would probably in large part restate the law, in some degree it would not. But it will probably not be clear of every provision whether it merely restates the law or effects some change in it . . . Secondly, the particular drafting might introduce linguistic arguments not available (or not so readily available) under the present law.
65 In preparing this Paper an attempt at codification was made, to see whether it was practicable. That was done by seeking to update the JAA, although recognising the possible need for a residual provision in the HCR to deal with any cases that future experience might show had been omitted. The reasons for making that attempt were:
(a) the constitutional importance of the procedure; and
(b) the fact that it is so well known that it might be of advantage not to sacrifice the benefits of the present regime in an attempt to secure symmetry.
66 Some of the present difficulty derives from the limited scope of the JAA. As noted in the preface, this has resulted in the continued use in many cases of the common law procedures for review, a situation not expected in 1972. The limitation of judicial review to cases of exercise of a statutory power is drastically out of line with the present common law. It has been the subject of continued criticism and calls for reform.[81]
67 Early in the consultation process it was suggested that an application for review might be defined in terms of the review of “the performance of, proposed performance of, or refusal to perform a public function, power or duty”. This suggestion was reconsidered in view of the limitation of the study paper to “tidying” the procedures of judicial review; it was argued by some that amending the legislation in this manner might alter the substantive law of judicial review.
68 The draft proposal was that the legislation should provide for applications for review in respect of a “reviewable power”. “Reviewable power” would then be defined as embracing the present “statutory power of decision” as well as proceedings enforceable through the exercise of mandamus, prohibition, certiorari, declaration or injunction. Remedies would be set out in the legislation that encompass the current statutory and the traditional common law remedies. This would encourage applications to be made within the purview of the JAA, rather than resorting to the prerogative writs.
69 But insuperable difficulty was encountered in identifying what should be added to “statutory power”.
70 The option of using the general term “public function” to incorporate both “public interest” and “public duty”, which appear in the definitions of certiorari in rule 626 and mandamus in rule 623, was seen by some experts as broadening inappropriately the jurisdiction of the court; they preferred refining the extension to “power to perform a public duty”. Others considered that such formulation would be too narrow and repeat the experience of 1972 and 1977.
71 As was pointed out by the Public and Administrative Law Reform Committee in their twelfth report, there is a limitless range of administrative powers and situations which it is impracticable to express in legislation with the degree of specificity that would be useful. This Paper reproduces the following statement from that report:[82]
If the principles did take that form, they would take insufficient account of such matters as the following:
Different deciders: the Governor-General in Council, Ministers, officials of central government, statutory boards, local government councils and officials, administrative tribunals . . . ;
Different impact of the powers: investigative, initiating, reporting, recommendatory, or definitive (either final or subject to appeal); applicable to one or two individuals or to a much larger group;
Different interests subject to the power: personal liberty, reputation, property, trade, profession, interest created by statute . . . ;
Different formulations of the power: subjective or objective; bare or limited by purpose or by relevant considerations;
Different safeguards on the exercise of the power: explicit procedural safeguards, rights of appeal, rights of review . . . ;
Different contexts in which the power is exercised: emergency, routine . . . .
72 It is doubtful whether the most prescient legislator could have provided for such cases as R v Panel on Takeovers and Mergers ex parte Datafin plc,[83] Electoral Commission v Cameron,[84] Peters v Davison[85] and Royal Australasian College of Surgeons v Phipps.[86] No doubt the future will require further developments of the procedures for review.
73 This option is impracticable, as it would suffer from the same defects identified above in the discussion of option 1. Any attempt at codification carries the risk of unintentionally altering the substance, or freezing further development, of the law of judicial review.
74 This is the course adopted in England.[87] But section 31 of the English Supreme Court Act 1981 does not elucidate what is meant by the orders of mandamus, prohibition and certiorari and unlawful acting in an office, to which they refer. Nor does Part 54 of the Rules of the Supreme Court[88] cast light on the question. To answer it one must look at the standard texts of administrative law.
75 English practice has been bedevilled by the unhappy attempt in O’Reilly v Mackman[89] to establish impermeable barriers between public law proceedings usually commenced by application for judicial review, and private law proceedings. The attempt resulted from the differences between their respective procedures (leave being required to commence a proceeding for judicial review, private law claims being usually brought as of right), different forums (judicial review being brought in the Crown Office List and private law claims elsewhere), and the differences in substantive law. Wade subsequently claimed that:[90]
The courts held that there must now be a dichotomy between public and private law, with mutually exclusive procedures – a retrogressive step which substituted new anomalies for the old ones and which caused great uncertainty and cost much time and money to litigants.
He later described those problems as being a serious setback to administrative law, causing many meritorious cases to fail merely because of the wrong choice of action.[91]
76 In Dennis Rye Pension Fund v Sheffield CC[92] Lord Woolf MR sought to restore order by directing the court to look at the practical consequences of the choice to be made, rather than just technical questions between public and private rights. Ready transfer from one forum to another was one of the techniques proposed. More recently in Boddington v British Transport Police[93] the House of Lords has held that a defendant may raise in a criminal prosecution the contention that a bylaw or administrative act undertaken pursuant to it is ultra vires and unlawful. The challenge was to the vires of by-laws prohibiting the smoking of cigarettes in a railway carriage.[94]
77 The unhappy English experience demonstrates the need to avoid unnecessary attempts at prescription, something facilitated by the unitary jurisdiction of the New Zealand High Court, each judge of which may exercise both judicial review and private law jurisdiction.
78 The reference in section 31 to the orders of certiorari, mandamus, prohibition, declaration and injunction directs the focus of enquiry to the ancient history of their genesis. The common law of judicial review no longer requires such a prop and may be allowed to stand on its own feet. The English model is not recommended.
79 This is considered the best option.
80 Professor Anderson has proposed a simple and elegant reform. It is to distinguish among:
• rules which reverse old common law rules concerning the substance of judicial review, which might appear in a schedule to an amending Act;[95]
• the substantive rules of judicial review, which are judge made, and do not require mention in a statute (unless they are to be changed – the Commission has not undertaken such task);
• rules which tell litigants how to apply for an exercise of the powers of the court, which are essential elements of the procedural statute or rules; and
• rules which tell judges and officials how to process such an application. These too are vital elements of the procedural statute or rules. 96
81 Professor Anderson’s argument, with which most of our other advisers agree, is persuasive. 97 It is that there is simply no need for the procedural rules to describe the qualifications needed to be a defendant any more than in respect of a plaintiff’s standing. If a company is liable to judicial review, it is because of its functions and not because it is a company. The matter is one of substantive law, in the present context better left to development by the judiciary.
82 But the parts of the JAA that change the old common law rules should be re-expressed as part of the body of the JAA, rather than being set out in a schedule, as proposed by Professor Anderson – these are important rules of substance.
83 The substantive law would be discerned, as is predominantly the case at present, from the law reports containing the decisions which created it, except to the extent necessary to remove anomaly and to maintain essential elements of the JAA where the common law is or may be inadequate.[98] Those essential elements are:
• section 4(2), which provides that where an applicant is entitled to a declaration that the decision is unauthorised or invalid, the Court may simply set aside the decision;
• section 4(2A), which provides that the fact that a decision-maker was not under a duty to act judicially shall not be a bar to relief;[99]
• sections 4(5), (5A), (5B), (5C) and (6) which set out the Court’s powers to give directions; and
• section 5, which provides that where the sole ground for relief is a defect in form or a technical irregularity that is not accompanied by a substantial wrong or miscarriage of justice, the Court may make an order validating the decision.
The substantive provisions relating to the liability of the Crown should be re-expressed – this issue is discussed in more detail below.
84 Procedural provisions would appear in the HCR.[100]
85 Chapter 1 contains the arguments in favour of subjecting the Crown to mandatory orders.
86 To summarise, at common law there has always been jurisdiction to order injunctive relief against Crown servants.[101] In principle parallel relief should have been available in terms of the prerogative writs.[102] Further, interim injunctive relief ought also to have been available against the Crown as executive.
87 Until M v Home Office[103] the distinction between the differing functions of the Crown had been obscured. Many common law decisions asserted, erroneously, that injunctions and other coercive orders such as specific performance, mandamus and discovery, were unavailable against the Crown in its capacity as executive.[104]
88 Likewise, high authority rejected the grant of interim declaratory relief against the Crown – see paragraphs 101–107 below.
89 The New Zealand Parliament reacted to the perceived problem by enacting section 8(2) of the JAA, which provides:
Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order:
(a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:
(b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.
90 Rule 627B of the HCR provides in general terms for the making of interim orders. It is proposed that Parliament repeal section 8(2) and specifically empower the grant of injunctions against the Crown.
91 In 1991 Professor Sir William Wade presented an irresistible argument in favour of a common law power to issue interim injunctions against the Crown.[105] He observed that there has always been such power at common law, but argued that the judiciary had lost its way in applying that power. In the United Kingdom this reasoning was adopted by the Law Lords in M v Home Office.[106] In M v Home Office Lord Templeman made the famous observation:[107]
The argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.
92 As to the present context, in its report Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick[108] the Law Commission expressed the view that:[109]
The Crown and other public bodies should have no power or immunity beyond those of the citizen, except to the extent necessary to allow its public functions to be duly performed. Anything more would impact adversely upon the rights of the citizen; anything less would impair the efficiency of government by inhibiting public officials in the proper performance of their functions.
93 If the argument in chapter 1 for subjecting the Crown in its capacity as executive to judicial review is accepted, section 8(2) of the JAA, which empowers the courts to make interim orders of prohibition, is expressed over-narrowly.
94 As noted in paragraph 12, section 8(2) derives from the CPA which was enacted to consolidate the law relating to private actions by and against the Crown.[110] Section 17 of the CPA111 (which provides that in civil proceedings against the Crown the court shall not grant an injunction or specific performance, but shall instead make a declaration) does not apply to the prerogative writs which provide a public law remedy. Nor does it apply to proceedings for judicial review under the JAA to the extent that relief sought is in the nature of mandamus, prohibition or certiorari.[112]
95 The New Zealand position in relation to injunctions and the Crown has developed thus:
• at common law, jurisdiction existed to order relief against the servants of the Crown as executive (paragraph 2 above). M v Home Office decides that such relief extends to mandatory orders against high officers of state sued in their capacity (paragraph 9 above);
• by excluding proceedings in relation to the prerogative writs from the definition of civil proceedings in section 2(1) the CPA carefully left untouched the common law in relation to such writs; and
• thus the court’s powers to make mandatory orders against Crown servants by way of the prerogative writs (now orders under Part VII of the HCR) were not restricted.
96 But[113] section 8 of the JAA72,114 which authorised interim prohibiting or staying orders, prohibits making of such orders against the Crown in relation to the exercise of statutory powers. Only a declaration may be made.
97 The JAA does not state whether “Crown” includes “Crown servants”; it has generally been taken that it does.
98 Sections 6 and 7 of the JAA provide that:
• where proceedings commenced for mandamus, prohibition or certiorari are in relation to the exercise[115] of a statutory power the Court must[116] treat and dispose of the proceedings as if they were an application for review; and
• where the proceedings seek declaration or injunction or both in relation to the exercise of a statutory power the Court may[117] direct that the proceedings be treated and disposed of as if they were an application for review.
99 The illogical result is that:
• In the case of applications for interim relief in relation to the exercise of a statutory power, where the Crown (probably including a Crown servant) is a respondent to an application for review, the combined effect of sections 6 and 8 is that the Court has no power to make a mandatory order against Crown servants, but may only make a declaration.
• Orders for mandamus, prohibition or certiorari in relation to the exercise of non-statutory powers are made outside the JAA under the common law and, at least since M v Home Office, may be made against Crown servants in their official capacity (paragraph 9 above).
• In the case of final orders for mandamus, prohibition or certiorari in relation to the exercise of statutory power:
(1) the Court must deal with the proceedings as if they were an application for review; but
(2) while there is no explicit limitation upon the Court’s common law power to make against Crown servants what are in effect injunctive orders at public law, by analogy with section 8 it is likely that no such order can be made (see footnote 13 above).
• In the case of applications for final declaration or injunction at public law, the judge may choose whether to have the proceedings dealt with under the JAA or not. It would seem to follow from M v Home Office that the Court may elect at common law to order an injunction against a Crown servant (even though, by section 17 of the CPA,[118] it may not do so at private law. It is as yet unclear whether a New Zealand court may at common law make an interim declaration: paragraphs 101–107 below).
• In the case of such applications in relation to the exercise of non-statutory power the common law or the Declaratory Judgments Act 1908 are employed.[119]
100 The most logical option is to repeal section 8(2), leaving the procedure in rule 627B of the HCR to govern all interim orders. The proposed new section 8 provides for the making of injunctions against the Crown: whether that formulation is adopted will depend on which of the options in chapter 1 is selected.
101 The English judges were loath to develop the common law by making interim declarations, on the basis that a court always adjudicates definitively. The apprehension was that it could and should not make a declaratory decision in sense N on an interim basis and in sense non N at substantive trial.[120]
102 Such approach is mechanistic and wrong, for the reasons stated by Zamir and Woolf in The Declaratory Judgment.[121]
103 Interim relief is awarded on the balance of convenience rather than entailing an assessment of rights. Interim declaratory relief is likely to have little to do with substantive rights.
104 The courts are not limited to declaring private rights; they can also declare public rights.
105 Zamir and Woolf suggest that change would be difficult to classify as procedural and so legislation is required. The author is inclined to disagree, preferring the view expressed by the Supreme Court of Israel in Yotvin Engineers and Construction Ltd v State of Israel.[122] It is to the opposite effect from the English case Rossminster[123] and is described by Zamir and Woolf as “very convincing”. The Supreme Court researched the origins of the English law and found that the Chancery Division traditionally made both interim and final injunctions. By their very nature interim orders were not final; rather they could be re-examined by the Chancellor before they were finalised.[124]
106 The New Zealand judiciary might, in exercise of their power to develop the common law, especially by analogy with statute law, choose to reject the English[125] authority. The legal maxim omne majus continet in se minus, that “the greater includes the less”, would justify such course.[126]
107 The express power in section 8(1) of the JAA to make interim orders[127] provides sufficient clarification in the area of judicial review. This power will be retained in the redrafted rules.
108 Section 4 of the JAA provides:
(5) ... on an application for review ... the Court if it is satisfied that the applicant is entitled to relief ..., may ... direct any person whose act or omission is the subject-matter of the application to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of any matter to which the application relates. In giving any such direction the Court shall—
(a) Advise the person of its reasons for so doing; and
(b) Give to him such directions as it thinks just as to the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
(5A)If the Court gives a direction under subsection (5) of this section it may make any order that it could make by way of interim order under section 8 of this Act, and that section shall apply accordingly, so far as it is applicable and with all necessary modifications.
(5B) Where any matter is referred back to any person under subsection (5) of this section, that person shall have jurisdiction to reconsider and determine the matter in accordance with the Court’s direction notwithstanding anything in any other enactment.
(5C) Where any matter is referred back to any person under subsection (5) of this section, the act or omission that is to be reconsidered shall, subject to any interim order made by the Court under subsection (5A) of this section, continue to have effect according to its tenor unless and until it is revoked or amended by that person.
(6) In reconsidering any matter referred back to him under subsection (5) of this section the person to whom it is so referred shall have regard to the Court’s reasons for giving the direction and to the Court’s directions.
109 These provisions go beyond the authority of the common law and can therefore be classified as substantive. They should be retained in an amended JAA.
110 Of particular note is the phrase “notwithstanding anything in any other enactment”. As demonstrated in Hauraki Catchment Board v Andrews[128] it can be of value to permit a reconsideration by the decision-maker which would otherwise have been impermissible. This provision should be retained in new legislation.
111 Rule 628(3) sensibly provides—
Where relief is claimed under this Part, the statement of claim may claim more than one of the remedies referred to in this Part and may claim any other relief (including damages) to which the plaintiff may be entitled.
112 While a damages claim may accompany a claim for relief under Part VII of the HCR, it has been held that this is not permitted in a judicial review application made under the JAA.[129] That creates an unfortunate inconsistency between the common law prerogative writs and the statutory application for review.
113 This power to permit damages claims to be pleaded in judicial review proceedings is a useful one, even if not commonly required. It will often be convenient to conduct such a case in stages – first the judicial review and then the damages proceeding (whether at common law or under the principle of Baigent’s case)[130] with appropriate directions as to pleadings and other matters. The proposals outlined in this Paper will remove this distinction.
114 If the option to permit mandatory orders against the Crown is adopted, the current procedural confusion would be resolved by replacing the JAA by a new Judicature Amendment Act 2001, which would empower the grant of injunctions against the Crown,[131] retain sections 4(2), (2A), (5), (5A), (5B), (5C), (6) and section 5, and re-draft Part VII of the HCR. This course has the advantage of removing unnecessary duplication in respect of both substantive law and procedural rules, and expressing what must remain in plain language and a more concise form.
115 The constitutional importance of this reform requires that the effect of the amendment be apparent. That is achieved by a recital in the new section 4(2) that the common law power of the courts to exercise their jurisdiction of judicial review is not affected by the reform.
116 Enactment of the consequential amendments to the HCR as a schedule to the Judicature Amendment Act 2001 will avoid any issue as to their validity. The drafting of these amendments will be a matter for the Rules Committee and Chief Parliamentary Counsel, who were consulted in the preparation of this Paper.
117 A draft of the proposed JAA is attached as appendix A.
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URL: http://www.nzlii.org/nz/other/nzlc/report/SP10/SP10-3_.html