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LAWS206 > Judicial Review > Flashcards

Judicial Review Flashcards

1
Q

What is judicial review?

A

An institution of constitutional importance, embraching the rule of law, the formal superiority of the legislature, and the independence of the judiciary

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2
Q

What are the three grounds of judicial review?

A

Illegality, unreasonableness, procedural impropriety

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3
Q

What are the three situations of illegality?

A

Abusing a discretionary power, abdicating a discretionary power, committing a reviewable error in making findings of law or fact

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4
Q

What did Lord Diplock say in CCSU?

A

A public authority must understand correctly the law that regulates its decision making power and give effect to it

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5
Q

What are the three elements of abuse of discretionary power?

A

Improper purpose, relevant and irrelevant considerations, miscellaneous

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6
Q

Municipal Council of Sydney v Campbell

A

A power granted for one purpose must not be exercised for another purpose

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7
Q

Padfield v Minister of Agriculture Fisheries and Food

A

Where a decision maker is given discretion, it must be used for the statutory purpose

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8
Q

James Aviation Ltd v Air Services Licensing Appeal Authority

A

Decision makers must not merge statutory powers that are separately granted

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9
Q

A-G v Ireland

A

Statutory power can be exercised for a concurrent ulterior purpose, as well intended purpose(s), as long as the alternative purpose does not frustrate the purpose of the Act

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10
Q

Pub Charity v A-G

A

A policy guideline of rule – to ensure consistency of decisions – must not run contrary to the statutory purpose

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11
Q

A-G v Unitec Institute of Technology

A

Decision makers have a freer hand in applying policy and adopting policy rules where the power in question is for invoking procedures rather than handing down binding decisions

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12
Q

What are the two classes of relevant considerations?

A

Mandatory: decision maker must take these into account in exercising their discretion and reaching a decision
Permissible: decision maker may, as a matter of discretion, taken into account

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13
Q

Fiordland Venison v Minister of Agriculture

A

A decision maker must properly consider all relevant mandatory considerations, meanwhile they must not be influenced by what the court may determine to be an irrelevant consideration (deer licence).

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14
Q

CREEDNZ v GG

A

Mandatory considerations must be given regard as a matter of legal obligation. Words such as ‘may’ give rise to permissible considerations. Lack of consideration to a permissible consideration does not take away from the decision.

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15
Q

Wahrliche v Bate

A

A DCJ refused legal aid in a criminal case owing to the limited legal aid moneys available. The consideration was irrelevant to the statutory test of whether a grant was “desirable in the interests of justice”.

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16
Q

Huakina Development Trust v Waikato Valley Authority

A

Mandatory considerations may arise from the statutory scheme or context of the decision

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17
Q

A-G v NZ Māori Council

A

Waitangi Tribunal Report  Minister considered, but went through with the initial plan anyway. Allowed as all they had fulfilled the mandatory consideration requirement of considering the report.

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18
Q

Howe v Keown

A

A power may be drafted in a way to invite additional relevant considerations (e.g. qualifications, experience, skills etc)

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19
Q

Haji v Minister of Immigration

A

Actions of a decision maker may import mandatory relevant considerations

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20
Q

NZ Fishing Industry

A

Considerations may not be “rebuffed with a closed mine” - need to give due deliberation with openness

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21
Q

Singh v Legal Aid Review Authority

A

The weight to be given is an exercise of the discretion of the decision maker

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22
Q

Leiatana v Ministry of Immigration

A

Decision maker encouraged to weigh considerations “openly and transparently”

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23
Q

Ye v Minister of Immigration

A

Weight given to the mandatory consideration was specified and not left to the decision makers discretion (interpreted with a UN convention)

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24
Q

What is Miscellaneous?

A
  1. Grounds of invalidity merge
  2. Leeway conceded to decision makers
  3. Justified and true reasons for action
  4. No public interest justification
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25
Q

What must a decision maker NOT do?

A
  1. Adopt a fixed rule of policy
  2. Act under the dictation of another
  3. Fetter (limit) its discretion by contract or representation
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26
Q

What is a fixed rule of policy?

A

A decision maker entrusted with a statutory discretion must not allow a fixed rule of policy to displace personal judgment. Each case calls for an “individualised response”.

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27
Q

R v London City Council, ex parte Corrie

A

Council had the discretionary power to issue permits for sale of literature in public parks. Council dispensed from its duty by making a resolution to grant no further permits. This was a moratorium. The courts issued a mandamus, thus removing the courts resolution.

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28
Q

R v Barry District Council, ex parte Jones

A

Same remedy was issued after the authority had refused to grant any new taxicab licences except to two proprietora and their drivers.

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29
Q

Pub Chairty v A-G

A

A rule of policy cannot replace what is set down in the statutory scheme

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30
Q

Ankers v A-G

A

A decision may be challenged where it was made by a mechanical application of input data. Not what happened here, but must be way of computerised systems; if an element of discretion is surrendered, a challenge will likely be successful

31
Q

A-G, ex rel Tilley v Wandsworth London Borough Council

A

In the case where a decision-maker adopts a policy, that may be seen as a fixed rule, but allows exceptions to the rule at their discretion, such exceptions are not enough and the policy is an abdication of their discretion

32
Q

Findlay

A

A policy may unlawfully fetter a discretion, even though the rule may be seen to promote the public interest

33
Q

Vickerman

A

A decision maker may be seen as deciding in the public interest, however, that is not a defence for abdicating discretionary powers

34
Q

Practical Shooting Institute (NZ) Inc v Commissioner of Police

A

Even when a policy rule can be deemed to be in the public interest, it must not replace the statutory scheme. If a policy rule is adopted, it must promote the statutory interest.

35
Q

Kerridge v Girling-Butcher

A

A decision maker cannot surrender its discretion by acting under the dictation of another

36
Q

Roncarelli v Duplessis

A

A discretion must be brought to bear in every case, and must be brought to bear by the mandated decision maker, and not some third party (licensing commission decision struck down because acted on provincial Premier’s instruction).

37
Q

McFarlane

A

When courts are faced with broad statements of statutory decisions, they will strive to read down so as to preserve as best as it can the element of independent discretion.

38
Q

Elston

A

Consultation and advice may be permissible, even where the decision maker must act independently. One must also factor in here government policy generally even when minister is acting independently.

39
Q

Unreasonableness: Wednesbury

A

A decision must be “outrageous” or “perverse”, where an official has “take leave of his senses” before intervening. Lord Greene used the example of if a teacher with red here were to be dismissed for her hair colour. A finding of Wednesbury unreasonableness means that the decision maker manifestly exceeded its decision making power.

40
Q

CCSU

A

So outrageous in its defiance of logic or of accepted standards that no sensible person who had aplied his mind to the question to be decided could have arrived at it (Lord Diplock).

41
Q

Wellington City Council v Woolworths (NZ) Ltd (No 2)

A

Due to rates being determined by elected officials, the issue of rates is democratic and to be dealt with at the ballot, not in the courtroom, therefore the Courts will apply a strict Wednesbury test.

42
Q

Thames Valley

A

: Substantive Unfairness (more flexibility and enabled courts to intervene); something more was required than the personal opinion of a judge that a decision was unfair.

43
Q

Pharmaceutical Management Agency Ltd

A

Courts will use a case by case analysis to determine the appropriate threshold of intervention.
The court held that if the decision is “all about money”, then they will apply the Wednesbury threshold; however, if the decision was about political and human rights, then the courts will apply a lower threshold.

44
Q

What are the factors that may affect the intensity of judicial review?

A
  1. Functions and status of the decision maker itself
  2. Whether the decision maker is democratically elected
45
Q

Electoral Commission v Cameron

A

Plaintiff sought review of a non-statutory industry body which exercised a self assumed regulatory jurisdiction over the advertising industry. As the board set its own jurisdictional boundaries, decisions were scrutinised more broadly.

46
Q

Air NZ v Wellington International Airport

A

The Courts increasing willingness to apply a variable standard or intensity of review removes the reason for substantive unfairness as a stand alone ground, subsuming it into unreasonableness. There is now a spectrum of review intensity under the head of unreasonableness.

47
Q

Patterson v District Court, Hutt Valley

A

The intensity of review does not change, but legal controls on public powers will vary from case to case. So it comes back to simply the legality of the decision; the question the court must ask is whether the decision is legally supported by the power conferred by Parliament?

48
Q

Carroll v Auckland Coroner’s Court

A

A ruling will be unreasonable if it is not supported by probative (leading to prove or demonstrate) evidence.

49
Q

What are three situations where a fact finding body might commit a reviewable error?

A
  1. There is no evidence to support the determination
  2. The evidence is contradictory of the determination
  3. The true and only reasonable conclusion contradicts the determination
50
Q

Board of Education v Rice

A

It is a duty lying on everyone who decides anything [to] act in good faith and fairly listen to both sides

51
Q

Fraser v State Services Commission

A

: Report on which the decision was based was nt disclosed. This was considered procedurally unfair, as the decision maker had not listened to the other side.

52
Q

D v M

A

Person who may be affected by the decision maker must be given notice of the hearing - the notice in the circumstance must be adequate, and as such must be assessed according to the circumstance of each case. Further if any allegations are made then sufficient particulars must be give of those allegations in the notice given and they must be given in good time so that the party can prepare a rebuttal.

53
Q

Waitemata Health v A-G

A

A review tribunal erred by failing to notify the Director of Mental Health of the right of appearance in a hearing to release a mental health patient.

54
Q

Daganayasi v Minister of Immigration

A

Decision makers are under the duty to disclose all relevant material so that the parties may rebuttal the material

55
Q

Osborn v Parole Board

A

Administrative convenience, cost-savings and efficiencies did not override the need to involve parties in the decision making; oral hearings promote values of personal respect, human dignity and the rule of law.

56
Q

Rose v Humbles

A

It will depend upon all the circumstances of the decision making, but in many contexts, the court will say due to the requirements of fairness, an oral hearing should be held.

57
Q

Pett v Greyhound Racing Association Ltd

A

Lord Denning laid down a general right to legal representation where livelihood or reputation was at stake

58
Q

A decision makers discretion to grant legal representation offsets the lack of a general right to representation.. The decision maker must exercise their discretion “fairly and promptly” in accordance with the principles identified in R v Secretary of State for the Home Office, ex parte Tarrant:

A
  1. The seriousness of the charge (if any) and of the potential penalty
  2. The question whether points of law are likely to arise
  3. The question whether procedural difficulties are likely to arise
  4. The desirability of a prompt determination
  5. The overall need for fairness as between the parties
59
Q

Wislang

A

The presence of a third-party who sits with the decision-making body does not vitiate the decision if their role is “purely secretarial”

60
Q

Rich v CGHS Board of Governor

A

The presence of a legal advisor does not vitiate the decision

61
Q

Murdoch v NZ Milk Board

A

The legal advisor’s presence may vitiate the decision if that presence conveys an appearance that the legal advisor may have influenced the decision-making

62
Q

Jeffs v NZ Dairy Board

A

It is a breach of natural justice for a decision-maker to decide without considering all of the submissions and all of the evidence

63
Q

Videbeck v Auckland City Council

A

It is a breach of natural justice to ‘rubber stamp’ reports given by sub-committees that lack the decision-making capacity

64
Q

Ex parte Moore

A

A decision must be reasonably supported by evidence, and holds an assumption a decision maker would not proceed with a decision without being informed.

65
Q

Re Erebus Royal Commission

A

It is a breach of natural justice to issue statements without giving prior notice to the parties affected by the statement.

66
Q

Khalon v A-G

A

There are 2 key elements of the duty to forewarn:
1. Surprise - If an adverse finding is foreseeable, there is no surprise. The duty arises where the risk of adverse findings is neither implicit in the nature of the inquiry, nor obvious from the conduct of the hearing.
2. Potential prejudice - The finding must have the potential to prejudice a party to be met

67
Q

R v Awatere

A

Court affirmed there is no obligation on courts to give reasons for their judgments - places law out of stead with public expectations.

68
Q

Breen v Amalgamated Engineering Union

A

The giving of reasons is one of the fundamentals of good administration.

69
Q

Lewis v Wilson and Horton Ltd: why reasons should be provided

A
  1. Need to uphold open justice
  2. Need to protect against judges/decision makers giving wrong or arbitrary decisions
  3. Pragmatic need to provide a basis on which decisions may be challenged
70
Q

Baker v Canada

A

The Supreme Court of Canada laid-down a general rule for decision-makers to provide reasons for their decisions. The Supreme Court of Canada held that this general rule would not create an onerous obligation for decision-makers as it merely imposed a flexible standard and allowed leeway for decision-makers in the amount of detail they chose to provide in their reasoning.

71
Q

Dimes v proprietors of Grand Junction Council

A

Justice may not only be done, it must also be seen to be done. So it is the appearance of bias, rather than the actuality of bias which concerns the courts.

72
Q

Muir v Commissioner of Inland Revenue

A

If a person has a connection to another they will be seen to be biased, and thise is the lens and test for apparent bias.

73
Q

Saxmere

A

A judge is biased is ‘a fair-minded and informed lay observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The same test should apply to financial matters and all other matters, no distinguishment between them anymore.

LAWS206 (4 decks)

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