Judicial Review and Delegated Legislation Flashcards
Bayline Group Ltd v Secretary of Education
2007, HC
Bus route tendering won by the company with more expensive offer in order to safeguard future monopoly.
Held that this cannot be JR because not public in nature as it is a low level contracting decision (too private). If these sorts of decisions were judicially reviewed it would be constraining executive power top much.
Curtis v Minister of Defence
2002, COA
Election promise to disband air combat wing of the Air force.
Held this is amenable to JR and has a high policy content to it but it is a political question rather than a legal question therefore not for the Courts to interfere with.
Hopper v North Shore Aero Club Inc
2007, COA
Mr Hopper requests to park his aircraft on club grounds was denied. He seeks JR of decision.
Aero club is an incorporated private entity meaning it has the ability to make public decisions and it is exercising a statutory power of decision making, therefore it theoretically amenable to JR.
However, this decision is not public in nature as it only concerns Hoppers individual concerns.
Finnigan v New Zealand Rugby Football Union
1985, COA
Claim against the decision of NZRFU to allow 1981 Springbok tour whilst Apartheid regime still in force in South Africa.
Justice Cook said that the general rule of standing that you must be directly effected by the decision to bring a claim can be relaxed here because of an accumulation of reasons, mainly that Finnigan plays for a rugby club linked through contracts to the NZRFU and this is a decision that affects the NZ community as a whole.
Held that NZFRU decision is against their own rules of promoting, fostering and developing the game of rugby and the tour was cancelled.
Great Christchurch Buildings Trust v CPT
2013, HC
Church Property Trustees (CPT) own the Christchurch cathedral which was seriously damaged in the earthquakes. They are issued a notice that they have to make the church safe or demolish it. Due to lack of finances they make decision to demolish it.
GCBT are set up to JR the decision to demolish the cathedral and say it cannot be demolished because it is the heart of CHCH and an important building for NZ.
Although GCBT are not directly affected by the decision to knock down the church they argue they have as much standing as Finnigan and that this case cannot be distinguished.
Held that they do have standing suggesting a more liberal approach to standing these days = to be awarded standing you must be directly affect, or the decision is one of sufficient public importance that challenging it is justified.
Back Country Helicopters v Minister of Conservation
2013, HC
Minister of Conservation given the power of Wild Animal Control Act to grant concessions allowing trophy hunting. MOC grants two year concessions when trophy hunters wanted unrestricted ten year concessions.
Back Country claimed this was ultra vires for a number of reasons:
Predetermination because MOC had previously said that he didn’t like arial hunting. He wasn’t acting in judicial role so test is predetermination. Held that there was no predetermination and the fact he gave concession proves not (predetermination means you completely closed your mind - if he had done this he wouldn’t have granted any concession).
Improper Purpose. Held that purpose of act was broad so can promote other (non direct) purposes so long as they don’t comprise or contradict the primary purpose.
Error of law. Declined as wasn’t completely contradictory to acts purpose as animal welfare still relates to improving the environment.
Legitimate expectation. Denied because only relevant to process of decision not actual decision.
Daganayasi v Minister of Immigration
1980, COA (NZ)
D visa to NZ ran out and she was issued a deportation notice to go back to Fiji. She applied to appeal to avoid deportation under section 20A of Act on the basis that her son’s medical condition was an expectational circumstance that mean deportation would be unduly harsh or unjust. Minister declined appeal after getting advice from medical expert who said that son will be able to manage condition with cheese. Report was not sent to D. This was a mistake of fact because there is no cheese in Fiji.
Held that this was a breach of natural justice therefore unfair (procedural impropriety).
Minister never consulted with D on the medical report and the first she heard of it was when her appeal was declined. This was a breach of natural justice because D was not given adequate notice or the opportunity to be heard.
Held it is the job of the Minister of Immigration to consult with those affected.
The court was also able to read in consultation rights because they Act didn’t give any guidance on the procedure to be followed. Thus if the party’s rights are affected significantly the court may read in consultation requirements to ensure natural justice.
CREEDNZ Inc v GG
1981, COA (NZ)
Proposed aluminum smelter in Dunedin as part of NZ “think big” project - National Development Act allowed executive to fast track large project applications without consensus from public consultation and a faster consent process. Claims on natural justice because decision to fast track bypasses consultation process.
Held this was not inconsistent with natural justice.
Court could not read in any extra requirements to slow down the process because it would be inconsistent with parliaments purpose of the National Development Act which was to speed it up process of this kind. Parliament has the final say = would be a breach of parliamentary supremacy to have slowed down process by requiring consultation.
If the decision maker is one who cannot be expected to have the time to engage in the process it is a strong suggestion that consultation is not required. This decision was made by Executive Council so not reasonable to expect them to have capacity to engage in consultation.
Decision also had insignificant effects on rights as spread across large group of people (rather than an individual as seen in D).
Legitimate expectation will work in terms of process - court won’t hold you to making a promise about how you are going to decide.
Saxmere v Wool Board Disco
2010, SC (NZ)
Lawyer for Wool Board and Judge used to be good friends and owned a business together. The judge owed the lawyer a lot of money. Saxmere says that judge should have refused himself from the case due to apparent bias.
Held that a judge will be deemed bias upon apparent bias - “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” the judge should be disqualified from the case.
It was because of owing money that it was held could be bias, not just because of being friends.
McGrath v Minister of Justice
2015, HC (NZ)
McGrath claims decision maker (Judith Collins) was bias due to being family friends with someone who made many blog posts about McGrath such as calling him a pedophile (and other forms of defamation) and had given her information about him. Therefore her decision to allow his order for extradition was breached natural justice.
Held that Judith Collens was not bias. Recognized that the test of bias will in many cases differs between Judges (as seen in Saxmere) and politicians. However, here because Minister was acting like a judge (because high impact decision and non commercial) for this particular decision the same test of apparent bias applies.
Merely knowing someone / having relationship is not enough for apparent bias.
Wednesbury
1948, COA (NZ)
Local authorities were given power under statute to make decision of cinema opening as thinks is fit to impose. They grant cinema license to operate on a Sunday but conditional to no children under the age of fifteen being able to go under any circumstances. Argued that this policy is so unreasonable that it should be deemed unlawful.
Held that this decision is not unreasonable.
Case confirms reasonableness as a ground of review and creates the Wednesbury test that determines when it can be applied = if a decision on a competent matter is so unreasonable that a reasonable decision maker could never have come to it.
There are two key issues with this test (1) the threshold is to high and (2) the definition of unreasonable is circular.
Woolworths NZ v WCC No.2
1996, COA (NZ)
WCC made the decision that commercial customers will have to pay higher rates than residential customers.
Held that this was not unreasonable to make commercial customers pay more - which shows how high the threshold is.
Resolved the second issue in Wednesday by defining unreasonable. “For the ultimate decision to be invalidated as unreasonable, must be so perverse, absurd, or outrageous in their defiance of logic that Parliament could not have contemplated such decision being made by an elected council”.
Wolf v Minister of Immigration
2004, HC (NZ)
Wolf a German prison escapee arrived in NZ under a false passport. He meets a women, they get married and have kids and he gets a permanent residence. The couple separate and she tells the immigration department. Wolf appeals deportation on the basis that it would be harsh and unjust because he may never see his children again.
Created the variable intensity of review = threshold of reasonableness depends on the nature of the decision, nature of the decision maker and the impact of the decision.
This case applied a low threshold of reasonableness because decision had significant impacts on an individuals rights as it would result in breaking up a family and because it was a decision purely based on law.
Low threshold of unreasonableness/high intensity of review meant that the courts look closely at the decision and therefore more likely to find it is unreasonable and thus protect individuals rights.
Held decision to deport Wolf was unreasonable because failed to take into account vital evidence and the way the decision maker came to conclusion was a break in the chain of logic.
Hauraki Coromandel Climate Action Inc v Thames-Coromandel DC
2020, HC (NZ)
Climate change is similar importance as rights (controversial).
Wolf like case.
Air Nelson v Minister of Transport
2008, COA (NZ)
Held that there needs to be an extremely strong reason to not give a remedy in JR - the presumption is that where a decision is ultra vires relief will be granted.
Factors to consider: good administration, delay, disentitling conduct, effect to third parties, and commercial community.
