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Endnotes

[1] See Glanville Williams Crown Proceedings (Stevens & Sons Ltd, London, 1948); H Street, Governmental Liability (Cambridge University Press, Cambridge, 1953); PW Hogg and PJ Monahan Liability of the Crown (3rd ed, Carswell, Toronto, 2000)

[2] Under s 17 CPA and s 8 JAA.

[3] See Ex parte Factortame Limited [1990] 2 AC 85, 145, cited by McCowan LJ (dissenting) in M v Home Office [1992] 1 QB 270 at 309.

[4] Royster v Cavey [1947] 1 KB 204: see Cornford "Legal Remedies Against the Crown and its Officers" in M Sunkin and S Payne (eds) The Nature of the Crown (Oxford University Press, Oxford, 1999) 240.

[5] Section 17 provides:

(1)In any civil proceedings under this Act by or against the Crown or to which the Crown is a party or third party the Court shall, subject to the provisions of this Act and any other Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that_

(a) Where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may instead make an order declaratory of the rights of the parties; and

(b) In any proceedings against the Crown for the recovery of land or other property, the Court shall not make an order for the recovery of the land or the delivery of the property, but may instead make an order declaring that any person is entitled as against the Crown to the land or property or to the possession thereof.

(2) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown. [Emphasis added]

[6] Save that by s 34(5) there was saved the discretion to grant relief by way of mandamus in cases in which such relief might have been granted before the commencement of the Act. There were two forms of mandamus: the prerogative writ and the statutory writ created by the Common Law Procedure Act 1854 (UK): Armstrong v County of Wairarapa South (1897) 16 NZLR 144. The former was issued for the performance of a public duty; the latter to enforce a duty owed to the plaintiff personally, in effect by mandatory injunction. Section 34(5) appears to relate to the former: [1962] NZLJ 113, 114. The prerogative writ procedure has now been subsumed within (r 623) of the HCR; no writ is now issued: Judicature Act 1908 s 89A. At common law the Crown as such was immune from mandamus: R v Powell (1841) 1 QB 352, 361; 113 ER 1166, 1170. Nor was the remedy available against a Crown servant if its effect would be to compel performance of an obligation owed by the Crown: R v Lord Commissioner of the Treasury (1872) LR 7 QB 387. But "where a duty was imposed by statute for the benefit of the public, upon a particular Minister, then even though he was under a duty to perform that duty in his official capacity, orders of mandamus were regularly granted against Ministers": S De Smith, H Woolf and J Jowell Judicial Review of Administration Action (5th ed, Sweet and Maxwell, London, 1995), 217.

[7] Passage in parenthesis added in 1972.

[8] See for example R v Powell above, n 6.

⁹ Cornford "Legal Remedies Against the Crown and its Officers" in Sunkin and Payne above n 4, 242.

[10] Above n 9.

[11] See PW Hogg Liability of the Crown (2nd ed, Law Book Company, Sydney, 1989) 38, and text at fn 115; D Clark and G McCoy Habeas Corpus: Australia, New Zealand, the South Pacific (The Federation Press, Sydney, 2000) 80_81 citing Re Garvey, Gasparini's Case (1888) 6 NZLR 604 (SC); Ex parte Bouvy (1900) 18 NZLR 593 (CA) and Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] AC 459 (PC). In D Clark and G McCoy The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Clarendon Press, 2000), 94, they argue that:

... it would be a very odd result to say that a head of State with powers of detention was immune from review since this would in effect countenance unaccountable Executive detentions such as existed in England prior to the Habeas Corpus Acts. Such an argument has no place in a constitutional state.

[12] [1994] AC 377.

[13] It provides:

(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:

(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:

(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

(2) 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.

(3) Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the Court may specify. [Emphasis added]

[14] Section 17(2).

[15] Above n 12.

[16] Section 6 JAA provides:

Where 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.

There is a complication: s 8(2), which proscribes the making of mandatory orders against the Crown, deals only with interim relief. It could be argued that since the case of final relief is not mentioned, at that stage the common law to make mandatory orders against Crown officials remains unaffected by the JAA. But such approach is hardly consistent with the ordinary principle that in "filling gaps" in legislation the Court will apply by analogy such pointers to Parliament's presumed intention as may be available: Northern Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530; Ervin Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731. Here the best pointer is s 8(2). A second complication is the doubt whether at common law interim declarations could be ordered at all. See paras 101_7 below.

[17] Section 27(3) of the New Zealand Bill of Rights Act 1990 provides some analogy:

Every person has the right to bring civil proceedings against, ... the Crown and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals".

It is no more than analogous, because of their nature judicial review proceedings are available only against those exercising public authority and not against individuals acting in a private capacity.

[18] In M v Home Office, above n 12, 395, where he observed:

The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown.

[19] Above n 18.

[20] It originally meant that the King was not privileged to commit illegal acts but was later treated as conferring immunity from suit. See Hogg and Monahan, above n 1, 4_5 and 11.

[21] P Cane An Introduction to Administrative Law (2nd ed, Clarendon Press, Oxford, 1992) 64.

[22] It may be added for completeness that Crown immunity from suit quite properly remains, not only in relation to the Crown as monarch, but also in relation to the Crown as executive in respect of non-justiciable issues such as immigration policy and the conferment of honours. It may also exist by reason of a specific ouster clause enacted by Parliament to provide the protection necessary for the proper performance of state functions such as execution of a search warrant. But where an issue is justiciable and there is no necessity for immunity, it should be removed.

[23] It may be argued that since the function of all state agents is to provide a public service to the community and its members, subject to such exceptions, the Crown as executive should be subordinate to the citizen..

[24] It was also expressed to be a goal of the Crown Proceedings Act 1947 (UK). See n 48 below.

[25] While recognising the supremacy of Parliamentary legislation, in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, the Court of Appeal observed that by virtue of the Bill of Rights:

... the Court ha[s] the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights ...

The inclusion of the legislature and the judiciary within the concept of "the Crown" represents an extension beyond its conventional sense of the executive: Hogg and Monahan, above n 1, 11.

[26] Accountability of the judiciary is secured by the appellate structure and other safeguards. They include the ultimate sanctions of removal from office: Constitution Act 1986 s 23; District Courts Act 1947 s 7 and the common law power to set aside for bias a decision at the highest level: Re v Bow Street Magistrate, ex p Pinochet (No 2) [2000] 2 AC 119.

[27] [1992] 3 NZLR 672. See also Hadfield "Judicial Review and the Prerogative Powers of the Crown" in Sunkin and Payne, above n 4, chapter 8.

[28] The decision was applied by the English Divisional Court in R v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349, setting aside the refusal to exercise the Royal Prerogative of mercy in favour of Bentley. Despite his execution in January 1953, on 30 June 1998 his appeal against conviction was subsequently belatedly allowed: R v Bentley (deceased) [1998] EWCA 3356. While under English practice that decision was made as against the Home Secretary rather than against the Crown in whose name the application for review was formally brought, its subject matter was the high Crown prerogative of pardon. It was in substance a mandatory _ quashing _ order against the Crown.

[29] "The State, the Crown and the Law" in Sunkin and Payne, above n 4, 72_3.

[30] "M v Home Office: Government and the Judges" [1993] Public Law 968, 977.

[31] Cornford "Legal Remedies Against the Crown and its Officers" in Sunkin and Payne above n 4, 265.

[32] The passage omitted reads "... when taken together with the state of affairs produced by the Crown Proceedings Act 1947 (especially if it were amended so as to allow interim declarations) ..." The Commission's first proposed option is to go further and authorise interim orders, not just declarations, against the Crown.

[33] NZLC R37, Wellington, 1997. Unless that test is met there is no good reason for special Crown immunity. The present paper does not address the difficult and important topic of when such immunity should exist. The essays of Professor (now Justice) PD Finn in chapter 6 of Law and Government in Colonial Australia (Oxford University Press, Melbourne, 1987) and Vol 2 Essays on Law and Government: The Citizen and the State in the Courts (Law Book Company, Sydney, 1995) contain a penetrating account of the Australian state legislative responses and their judicial interpretation (including Farnell v Bowman (1887) 12 App Cas 643, 648_50). He discusses three broad groupings of case law on civil proceedings involving the Crown:

1 "similar treatment" cases;

2 "differential treatment" cases;

3 "exceptional treatment" cases.

The discussion will be invaluable when the substantive issues fall to be argued.

[34] Para 24 above.

[35] NZLC SP6, Wellington, 2000.

[36] And by the majority of the experts whom we consulted and Professor Hogg above n 1, 38_39.

[37] See Choudry v Attorney-General [1999] 3 NZLR 399, 403. "The development of ... wider controls and the movement to more open government have, of course, been accompanied by balancing factors or limits, in particular in respect of matters of national security, an area which is often associated with defence and international relations. [13] Both Courts and legislatures have at times seen those areas as non-justiciable, or as barely justiciable, or as requiring judicial deference to ministerial exercises of discretion ...".

[38] See R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622.

[39] Reprinted Statutes Vol 30, 44.

[40] And in principle the proviso to section 17 of the CPA.

[41] In Sunkin and Payne, above n 4, chapter 2.

[42] Sunkin and Payne, above n 4, 26.

[43] Above n 12. See also above para 9.

[44] [1998] AC 1.

[45] [2000] 1 WLR 127, 142.

[46] See FW Maitland "The Crown as Corporation" (1901) 17 LQR 131.

[47] See Lord Blake and CS Nicholls The Dictionary of National Biography 1971_1980 (Oxford University Press, Oxford, 1986), 712.

[48] I was rather surprised that one of the points which the Attorney-General took, in commending the Bill, was that it made for the equality of all before the law. I should have thought that with regard to a great many of these provisions the Bill does the exact opposite, as I shall seek to show ... I do not know what the law of England is, but I know of nothing in the law of Scotland which prevents the subject obtaining an interdict against a servant of the Crown, including any Minister. I have never heard of any reason why that rule should be altered. It is easy to think up theoretical questions which might arise if there were an unreasonable judge on the bench. The only possible reason for altering that rule, if it is intended to alter it, for Scotland _ I am a little doubtful about it _ is that the Government are not prepared to trust those who are entrusted with jurisdiction in these matters to act reasonably. I see no reason whatever for taking away a right of that kind from the subject. We have got through two wars without this alteration, or the other alterations to which I am coming.

The existing rules did not cause trouble in what we hope will prove to have been the most disturbed period of our history. Are we really looking forward to a period in future when protection for the Executive, which has not been necessary in the past, is going to be necessary? Were that the view of the Government it would throw a pretty lurid light upon their anticipations. But, of course, it is not the view of the Government at all. The fact is _ as was admitted by the Lord Chancellor in another place _ that those Members of the Government who have been preparing the introduction of this Bill have just been overruled by the Service Departments. I can quite understand that the Cabinet, being taken up with a great number of other matters, have not the time to resolve these difficulties. Therefore, the Lord Chancellor just had to acquiesce, as he very frankly admitted, in a most unsatisfactory position. I should like to read to the House what the Lord Chancellor said in another place, particularly with regard to Clause 10. He said on the Second Reading:

Let me be quite frank. This Clause, together with Clause 7, is one of the Clauses I have been pressed, and, indeed, compelled by the Service Departments to insert, in order to overcome the misgivings, or, if you like, the reluctance; which they feel, and have traditionally felt, about the introduction of the Bill.

On Committee stage he said:

The short and long of it is that I am under an obligation, either to get this Clause as it is, or to withdraw my Bill.

It is quite obvious he did not think much of this Clause, because he said:

I hope that in due course the nervousness of the Service Departments will be allayed. It is not unlikely that we shall find we have some odds and ends to gather up, and, probably, that will lead to amending legislation.

If that is the Estimate of the noble and learned Lord I do not seek to dissent from his view. If my remarks cannot receive attention today _ and it is quite obvious from what the noble and learned Lord said that they cannot _ then I hope that, being on record, they may perhaps receive attention when this amending legislation comes to be introduced.

[49] Sir Thomas Barnes "The Crown Proceedings Act 1947" (1948) 26 Canadian Bar Review 387, 395.

[50] Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 (natural justice); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 149 (jurisdiction); Burt v Governor-General of New Zealand, above n 27 (review of Crown prerogative conduct); Electoral Commission v Cameron [1997] 2 NZLR 421 (CA) (judicial review of private organisation exercising public functions); and Peters v Davison [1999] 2 NZLR 164 (CA) (review of a Royal Commission for error of law).

[51] The JAA was proposed in the fourth report of the Public Administrative Law Reform Committee in January 1971, building on JF Northey "An Additional Remedy in Administrative Law" [1970] NZLJ 202, 208 and GS Orr Administrative Justice in New Zealand (Government Printer, Wellington, 1964) chapter 15.

[52] An order for mandamus allows the High Court to compel an inferior court, tribunal or a person to perform a public duty. (R 623, HCR).

[53] An application for certiorari allows the High Court to review all or part of a determination made by an inferior court, a tribunal, a person exercising a statutory or prerogative power, or a person exercising a power that affects the public interest. The court may make an order for certiorari (the quashing of the decision reviewed) or any other order it thinks fit. (R 626, HCR).

[54] Declarations are the subject of the Declaratory Judgments Act 1908, which "extends beyond judicial review to provide for declarations of the law applicable to any situation, namely, where `any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, ... regulation, ... bylaw, ... deed, will, document of title, ... agreement made or evidenced by writing, ... memorandum or articles of association, ... or any instrument prescribing the powers of any body corporate,' or where `any person claims to have acquired a right' under such statute, etc, or where any person `is in any other manner interested in the construction or validity of such statute etc'." (GDS Taylor, Judicial Review: A New Zealand Perspective (Butterworths, Wellington, 1991) 46, citing s 3 of the Declaratory Judgments Act 1908).

[55] The High Court may, on an application to prohibit an inferior court, tribunal or person from exercising a jurisdiction that the court, tribunal, or person is not by law empowered to exercise, make an order for prohibition prohibiting such exercise of jurisdiction. (R 625, HCR).

[56] The powers of injunction as expressed in r 624 allow the court to restrain an inferior court, tribunal or person from a threatened or actual breach, continuation of a breach, or further breach of a duty of the court, tribunal, or person. These powers are distinct from and do not encompass the court's equitable jurisdiction to award an injunction.

[57] Section 4(1) JAA.

[58] Administrative Tribunals: Constitution, Procedure and Appeals (Government Printer, Wellington, 1972) 7.

[59] See fourth report of the Public and Administrative Law Committee Administrative Tribunals: Constitution, Procedure and Appeals (Government Printer, Wellington, 1971) para 26.

[60] Cases not provided for— if any case arises for which no form of procedure is prescribed by any Act or rule or regulation or by these rules, the Court shall dispose of the case as nearly as may be practicable in accordance with the provisions of these rules affecting any similar case, or, if there are no such rules, in such manner as the Court thinks best calculated to promote the ends of justice.

[61] See discussion at paragraphs 54_59 for some examples.

[62] Section 4(1).

[63] The problems were identified in the eighth report of the Public Administrative Law Reform Committee September 1975 which appended a draft Bill.

[64] Notwithstanding the enactment of legislation such effect in Australia (Administrative Decisions (Judicial Review) Act 1977) and the Federal jurisdiction of the United States of America (Administrative Procedure Act 1946 5 USC s 706 and the Revised United States Model State Procedure Act 1961).

[65] See Burt v Governor-General above n 27. This distinction was always understood, but the Rt Hon Justice Sir Kenneth Keith advises that it was not considered to be a problem because of the availability of other remedies, and the limited occasions when difficulties would arise.

[66] Burt v Governor-General above n 27, 675.

[67] Burt v Governor-General above n 27, 681. This decision was applied by the English Divisional Court in Regina v Secretary of State for the Home Department, ex parte Bentley above n 28.

[68] [1985] 2 NZLR 159 (CA).

[69] Above n 68, 159.

[70] Note that the court has jurisdiction to determine whether a commission's terms of reference are lawful (Cock v Attorney-General (1909) 28 NZLR 405 (CA)), to determine whether a commission is acting within its terms of reference (Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618 (CA)), may intervene to ensure that the requirements of natural justice are met (Re Royal Commission on State Services [1962] NZLR 96, 117 (CA); Lower Hutt City Council v Bank [1974] 1 NZLR 545 (CA)) and may review an alleged error of law where it materially affects a matter of substance relating to a finding on one of the terms of reference (Peters v Davison above n 50, 189).

[71] Re Royal Commission on Thomas Case [1982] 1 NZLR 252, 258 (CA). Note however, that the statutory remedy is available where a Royal Commission's order for costs is being reviewed _ the ability of a Royal Commission to award costs is conferred by section 11 of the Commissions of Inquiry Act 1908, and is therefore a statutory power (Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662, 669 (PC).

[72] As updated in 1997. They are reproduced in appendix B.

[73] Described in the preface to this Paper.

[74] Section 3 Declaratory Judgments Act 1908.

[75] See for example, D Mullen "Judicial Review of Administrative Action" [1975] NZLJ 154; JA Smillie, "The Judicature Amendment Act 1977" [1978] NZLJ 232; RE Harrison QC "Reform of the Judicature Amendment Act 1972" (1995) 434 Lawtalk 11; M Taggart "Introduction to Judicial Review in New Zealand" [1997] JR 236.

[76] See ss 4 and 5.

[77] See ss 9 and 10.

[78] See r 628.

[79] Twelfth report of the Public Administrative Law Reform Committee (Government Printer, September 1978) 21.

[80] Above n 79, 23.

[81] See above n 75.

[82] Above n 79, 25.

[83] [1987] QB 815 (CA).

[84] Above n 50.

[85] Above n 50.

[86] [1999] 3 NZLR 1 (CA).

[87] Appendix C of this Paper reproduces sections 29_31 of the Supreme Court Act 1981 and Order 53 of the Rules of the Supreme Court.

[88] As appearing in the 2000 edition of the Rules of the Supreme Court (UK).

[89] [1983] 2 AC 237 (HL).

[90] HWR Wade Administrative Law (8th edition, Oxford University Press, Oxford, 2000) 552.

[91] Wade, above n 90, 678.

[92] [1998] 1 WLR 840; [1997] 4 All ER 747 (CA).

[93] [1999] 2 AC 143 (HL).

[94] Compare cases in which Parliament has precluded such challenges: R v Wicks [1998] AC 92 (HL) where an enforcement notice under town planning legislation was held not to be capable of challenge in criminal proceedings but only via the elaborate appellate code. See to like effect the New Zealand Resource Management Act 1991 s 296.

[95] Examples are subsections (2), (2A), (5), (5A), (5B), (5C) and (6) of s 4 and s 5 of the JAA.

[96] Submission to the New Zealand Law Commission, December 1998.

[97] Associate Professor Philip Joseph and Professor Taggart both supported the approach suggested by Professor Anderson, with Associate Professor Joseph making similar suggestions. Associate Professor Andrew Beck also made useful comments along the lines of the proposal mooted by Professor Anderson.

[98] See appendix A for the proposed Judicature Amendment Act 2001.

[99] While it may be powerfully argued that the common law has itself swept away the condition that the decision-maker must have acted judicially, it is desirable to put the point beyond argument.

[100] To be drafted by the Rules Committee.

[101] Nireaha Tamaki v Baker (1900) NZ PCC 1; [1901] AC 561 (PC); Park v Minister of Education [1922] NZLR 1208 (SC); Hogg and Monahan above, n 1, 31; Wade, (1991) 107 LQR 4; M v Home Office above n 12. As to the different senses of "Crown" see Sue v Hill (1999) 73 ALJR 1016, 1032_1035, paras 83_94 (HC).

[102] See Nireaha Tamaki v Baker and Park v Minister of Education above n 101.

[103] See discussion above, para 9.

[104] See Hogg, above n 101, 31.

[105] Above n 101, criticising R v Secretary of State for Transport, ex parte Factortame Ltd above n 3 (HL).

[106] Above para 9.

[107] Above n 12, 395.

[108] Above n 33.

[109] Above n 33, para 30. For a full discussion of this recommendation, see paras 19_33 of that report.

[110] Long Title, CPA.

[111] Reproduced at footnote 5.

[112] See definition of "civil proceedings", s 2 CPA.

[113] As noted in para 12 above.

[114] Read with s 6.

[115] Or refusal to exercise, or proposed or purported exercise.

[116] If they are proceedings for or in the nature of mandamus, prohibition, or certiorari.

[117] Where the proceedings are for declaration or injunction the Court must consider whether it is appropriate to treat the proceedings as an application for review.

[118] In a claim to enforce a duty owed to the plaintiff personally. See n 5 above.

[119] See Dyson v A-G [1911] 1 KB 410; Ng v Minister of Immigration (No 2) [1980] 2 NZLR 289; BNZ Finance Ltd v Holland [1996] 3 NZLR 534 (CA).

[120] See Reg v IRC ex parte Rossminster [1980] AC 952 (HL).

[121] (2nd ed, Sweet & Maxwell, London, 1993) paras 3.096_8.

3.096 The courts justify their refusal to grant interim declarations on two different grounds. The first is that they only have power to award "declarations of right", i.e. to declare legal rights. They contend that rights in this context must mean final legal rights, it being undoubtedly illogical to suggest that a person's legal rights might be X one day and Y the next. However, this is only true if it is assumed that the only thing that a declaration can declare is parties' private rights. American Cyanamid v Ethican [1975] AC 396 decided that in granting interlocutory injunctive relief the courts are primarily concerned with the "balance of convenience" rather than parties' "prima facie rights". Furthermore, the courts are not limited to declaring parties' private rights: they can also declare their public rights and even declare whether the government has made an error of law in drafting circulars or guidance. As the Law Commission [of England and Wales] have suggested, there would appear, therefore, to be no reason in principle why the courts should not have the power to declare, not the rights of the parties, but either the terms on which they would have granted an interim injunction if the dispute had been between subjects or the basis upon which the parties should conduct their activities until further order.

3.097 The second ground on which the courts justify their refusal to grant interim declarations is that it is doubtful whether it is desirable for there to be such relief. It is sometimes contended that such relief should not be available as "the state's decisions must be respected unless and until they are shown to be wrong. Judges neither govern nor administer the state: they adjudicate when required to do so". But not all cases against the Crown involve issues of public interest. Even where they do, there would appear to be no reason why the courts should not make such an interim declaration, provided that a prima facie case can be established and that the balance of convenience, which in this context might also involve consideration of the public interest, justifies the granting of relief. Moreover, the freedom of the Crown will not be fettered even theoretically as a declaration has no coercive force. Further, since Conway v Rimmer [1968] AC 910 _ where it was held the courts have a discretion to decide whether or not the public interest, when balanced against the interests of litigants in a fair trial, requires that documents should be disclosed _ the courts have become accustomed to making judgments between conflicting public interests. A similar balancing exercise also has to be conducted when the courts have to determine whether to grant interlocutory relief against the Crown when a party is asserting a right under European Community law or whether to grant a stay on an application for judicial review. There would seem to be no reason therefore why, paying due regard to the views of the Crown, the courts should not decide whether or not the balance of convenience requires that an interim declaration be granted.

3.098 In view of the Rossminster [[1980] AC 952] and International General Electric [[1962] Ch 784] decisions, it is unlikely that they will ever hold that they have power to grant interim declarations in private law civil proceedings. Since it would be difficult to classify the change which is needed as being procedural and therefore one which could be made by altering the Rules of the Supreme Court, it is necessarily to the legislature that one has to look for such a remedy. Other jurisdictions, however, have not regarded it as so obvious that an interim declaration is an animal unknown to the law. In Israel, for example, the Supreme Court in Yotvin Engineers and Construction Ltd v State of Israel, CA 144/79344 1980 PD (2) 344 after reviewing the then English authorities, concluded that there was power to grant an interim declaration.

[122] Above n 121, CA 144/79 (1980) reproduced in the appendix to Zamir and Woolf, 301.

[123] Above n 120.

[124] Zamir and Woolf, above n 121, 305_306.

[125] Above n 120.

[126] See Francis Bennion Statutory Interpretation (3rd ed, London, Butterworths, 1997) 25_26, 429_431. The maxim was applied by Richardson J in Goldsboro v Walker [1993] 1 NZLR 394, 404 (CA).

[127] As in rule 627B of the HCR.

[128] [1987] 1 NZLR 445 (CA). See also New Zealand Wool Board v Commissioner of Inland Revenue (1999) 19 NZTC 15,082 (HC) (reversed in Commissioner of Inland Revenue v New Zealand Wool Board (1999) 19 NZTC 15,476 (CA)) and Public and Administrative Law Reform Committee report 8, above n 63, 21.

[129] Manson v New Zealand Meat Workers Union [1990] 3 NZLR 615 (HC).

[130] [1994] 3 NZLR 667 (CA).

[131] See paras 16_42 above.

[132] Sections 18, 19(1) and parts of the First and Second Schedule.

[133] See discussion at para 64.