judicial review Flashcards
what are the three grounds of review
- illegality (decision maker misapplies statutory power)
- irrationality/unreasonableness (no reasonable decision maker could have arrived at it without something going horribly wrong)
- procedural impropriety (duty to act fairly - audi alteram partem and rule against bias)
what case shows the relevance of judicial review and why
Borrowdale v Director-General of Health - one can challenge an action or decision in judicial review if they allege that a decision has been handled wrongly. The rationale of judicial review is to promote and uphold the rule of law
what happened in Borrowdale v Director-general of Health
- given: lockdown did restrict protected rights under NZBORA
- Bloomfield issued paragraph M order under s 70(1) to forbid congregation in outdoor places of amusement and recreation and close all premises - Borrowdale won challenge on first 9 days - no legal obligation to comply
- 9 days later he issued a second notice under paragraph f requiring all persons to isolate or quarantine at home
- in media briefings Ardern directed people to isolate, stay in their bubbles, stay home and cease interactions with people outside their bubble - these statements lacked lawful authority
- argument that the PM has no authority to suspend the protected NZBORA rights by statements, court didn’t let it succeed because they somehow construed that Ardern’s statements had suspended s 5
- the argument that para f might only apply to individuals was rejected - they read it up because the Health Act was dealing with a big public problem
- rejected Crown’s argument that Ardern’s statements merely counselled voluntary compliance
what is the jurisdictional journey as to hearing judicial review cases
- the courts don’t exercise a statutory jurisdiction, the HC exercises inherent jurisdiction which can be traced back to the origins of the common law courts - the court of king’s bench which branched off the king’s council in the 12-13th centuries in particular. that jurisdiction was established here by our colonial supreme court and carried over through successive statutes - now the Senior Courts Act 2016.
how did the courts cling to the doctrine of ultra vires for judicial review
one could only succeed in bringing an action for judicial review if the applicant could establish the decision maker had committed a jurisdictional error. If they had, they had acted ultra vires. The court asked: did the decision maker have the authority to enter upon this matter and decide it, if no, there was a reviewable jurisdictional error. if they were acting within their jurisdiction at the outset there was nothing to review
what did Anisminic do the change how judicial review was heard in regards to jurisdictional errors being abolished
the HOL said it doesn’t matter at what stage of the process the error is committed, if it is material (that is, if it influences the outcome of the decision making) then it is reviewable - the distinction between a jurisdictional and non-jurisdictional error was abolished. this greatly expanded the scope of the courts powers of judicial review and review as a weapon
what does Peters v Davison say the intention of judicial review
it is intended to uphold the rule of law - government according to law (Dicey’s first meaning)
what two sided questions did the old way of the binary judicial review method ask
jurisdictional vs non-jurisdictional error - the answer the court gave determined the outcome, non-jurisdictional = you lose
legal rights v non-legal interests - you had to establish the decision making adversely affected your legally recognised rights, otherwise you lost
statutory power v royal prerogative power - if the public power exercised is conferred by statute it was reviewable
ministerial decision-making v other public decision-making - Ministers are individually and collectively responsible to Parliament rather than the courts so we shouldn’t intervene - that is the proper forum for accountability
void v voidable - if void, it was void ad initio (from the outside) and decision handed down was a nullity, if only voidable the decision is deemed at law to be legally effective and in force up until the point where it is set aside by a successful challenge in judicial review, which may never come
mandatory v directory - a statute may lay down certain requirements of people - mandatory requirements enjoined strict compliance, but not so if the requirement was seen to be directory only
judicial review is what three things
- inherently discretionary
- fully contextual - Robin Cooke: ingredients of the problem at hand dominate
- judicial review involves overall evaluation
what were the great prorogative writs
certiorari - order of the court quashing a decision that has been handed down in excess of powers granted to the decision maker
prohibition - anticipatory order, where if the decision maker enters upon a matter it will be beyond their jurisdiction
mandanus - to seek an order of the court compelling a statutory body/decision maker to perform a public statutory duty
In Martin v Ryan, how did Fisher J describe judicial review
“inherently discretionary”
there are no hard and fast rules in judicial review - it comes down to?
overall evaluation
Robin Cooke said: the ingredients of the problem at hand …?
dominate
What did Lord Steyn say in R (Daly) v Secretary of State for the Home Department about judicial review being fully contextual
“in law, context is everything”
what was said about judicial review involving “overall evaluation” in A.J. Burr Ltd v Blenheim Borough Council by Cooke J
“The determination by the court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account”
judicial review involving overall evaluation is inherently what?
discretionary
What dicta did Robin Cooke say in the foreword of Judicial Review: A New Zealand Perspective “captured the essence of judicial review”
R v Take-over Panel; Ex parte Guinness plc - “The ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the Court, and, if so, what form that intervention should take”
what statement of Cooke P about judicial review had the 3 defining characteristics implicit in it
“most cases turn on an analysis of the particular facts and an application of the particular provisions, usually but not always statutory, which are the source of the administrative power in question. Typically the result of the case flows from the facts and the statute or rule .. the ingredients of the problem at hand dominate”
what inference can be taken from Cooke P’s statements about judicial review as to the application of the doctrine of precedence
the doctrine of precedence has less application in this area of the law because every case is unique and must be decided on its own particular facts in its own particular legal context
how does Cooke P shun over-sophisticated analyses of judicial review principles or doctrines
“refinements in the way in which fairly simple and broad background doctrines are expressed are less important than the specific and interpretive issues”
these broad background doctrines reduce to simple “the decision maker must act in accordance with law, fairly and reasonably”
how was the distinction between appeal and review put in Chief Constable of the North Wales Police v Evans
- JR concerned with the decision making process - concerned not with the merits of the decision challenged, but rather with the manner in which the decision was made, whether the decision should be allowed to stand, has the decision been reached properly in accordance with the law and the requirements of fairness - if not, it will be reviewable no matter the merits of the decision
- appeal concerned with the correctness of the decision itself - here if the court finds the appeal is good, the court will substitute its own decision for that of the decision maker
what did Justice Hardy Boys in R v Sloan say about the proper concern on review, accepting the idea in NZ
concern on review was “with the decision making process, not the decision itself”
what happened in Fraser v State Services Commission
a public servant had been dismissed for certain alleged disciplinary offences. the decision to dismiss was based on a departmental report that was highly critical of Miss Fraser, which she had not been shown in advance of the hearing.
court held the decision was in breach of principles in natural justice. the judicial review was successful and it was quashed.
the case illustrates the duty of disclosure in administrative law and judicial review. all decision makers have a duty to disclose all relevant information to all interested parties.
Richardson J: concern was the manner in which the decision was reached - was it fair and in accordance with the requirements of judicial review - no (even though she had been involved in misconduct, that merit of the decision was not the courts concern)
how does the distinction between appeal and review serve as discipline
the courts powers are limited when they sit in review