A Non-Doctrinal Jaunt Through Judicial Review 31

A Non-Doctrinal Jaunt Through Judicial Review

Philip A Joseph*

I Introduction
This article articulates one person’s understanding of judicial review. It is
written from a non-doctrinal perspective that casts aside the shibboleths
of standard administrative law scholarship. I found writing the article
refreshingly therapeutic. From time to time, it is beneficial to step back
from the minutiae of one’s researches and take stock of the broader
landscape. We, as academics, are prone to tunnel in on the intestacies
of legal doctrine and reorganise our subject-matter in fragmented,
disconnected parts. This article checks that tendency by taking a
broader, holistic look at the landscape of judicial review. This approach
complements the inherent, discretionary and contextual nature of judicial
review, and the courts’ declared commitment to keep it “relatively simple,
untechnical and prompt”.1 Law students might take a less sanguine view.
They are deluged with judicial review decisions, academic writings and
extra-judicial preponderances, and are plied with all sorts of theories
about judicial review. The literature is voluminous. However, this article
does not seek to burden law students further. It presents a simplified
narrative of what the courts do in judicial review. The New Zealand
jurist, Robin Cooke, distilled the elusive quest when he titled his seminal
paper, “The Struggle for Simplicity in Administrative Law”.2
This article reflects upon the fundamentals of judicial review. It proffers
why some applications for review succeed and others do not. The article
also suggests how judicial review pedagogy might be honed in modest
ways. There is, in every field of law, continuing need to revisit our
understandings of pedagogy. I do not claim that everything that follows is

* Professor of Law, University of Canterbury, New Zealand.

1 Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at
353. Numerous courts have repeated those words: Association of Dispensing
Opticians of New Zealand v Opticians Board [2000] 1 NZLR 158 (CA) at [19];
Edwards v Toime [2005] NZAR 140, (2003) 7 HRNZ 213 (HC) at [20]; Wilson
v White [2005] 1 NZLR 189 (CA) at [25]; Commerce Commission v Powerco Ltd
CA123/06, 9 November 2006 at [36], [40]; Lab Tests Auckland Ltd v Auckland
District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [342]; Orlov
v New Zealand Law Society [2012] NZCA 12 at [21]; and Attorney-General
v Kim Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].
2 Sir Robin Cooke “The Struggle for Simplicity in Administrative Law” in
M Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems
and Prospects (Oxford University Press, Auckland, 1986) at 1.
32 Otago Law Review (2021) Vol 17 No 1

received orthodoxy. This article records my own eclectic understanding of

judicial review resulting from my researches conducted over many years.3

II Inherent jurisdiction
A Historical provenance of inherent jurisdiction
An examination of judicial review logically begins with the High Court’s
inherent jurisdiction. Judicial review entails the exercise of jurisdiction
that is inherent, not prescribed, which sets apart judicial review from
most other areas of the law. Applications for review are filed in the
High Court,4 a court of general jurisdiction exercising inherent and
statutory jurisdiction. “‘[I]nherent jurisdiction’ … connotes an original
and universal jurisdiction not derived from any other source”.5 This
jurisdiction has an impressive history that can be traced to the reign of the
Norman Kings and the splitting up of the Curia Regis (King’s Council). In
an earlier article,6 I explained how this early history bestowed legitimacy
on the High Court’s jurisdiction to review. I began with a hypothetical
exchange between two colleagues. Colleague Y explained that the
doctrine of ultra vires and presumed parliamentary intent were false
gods and could not accord legitimacy to judicial review:7

Colleague X: Then how might the courts legitimise their review powers?”
Colleague Y: “Their powers are inherent. The courts are the third arm of
government. They are invested with authority to develop
the law and they will be guided by their own intuition of
what justice and the rule of law require.”
Colleague X: “But the courts’ functions have changed profoundly over
time.”
Colleague Y: “Quite. Their powers evolved as the constitutional
balance began to shift. In the Middle Ages, they upheld
the dominant Royal power (the King); then they acted
as a counterweight in the contest between Crown and
Parliament. When Parliament finally won that contest,
they turned to securing the individual against official
interference or abuse.”

3 See in particular: PA Joseph “The Demise of Ultra Vires – Judicial review

in the New Zealand Courts” [2001] PL 354; PA Joseph “Scorecard on our
Public Jurisprudence” (2005) 3 NZJPIL 223; PA Joseph “False Dichotomies
in Judicial Review: From There to Here” [2016] NZ L Rev 127; and PA
Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson
Reuters, Wellington, 2021) (Joseph (2021)), ch 22.
4 Judicial Review Procedure Act 2016, s 8(1). Applications for review
(whether of the exercise of a statutory or a non-statutory power) must
be filed under pt 5 of the High Court Rules 2016: HCR, r 30.3(1).
5 Watson v Clarke [1990] 1 NZLR 715 (HC) at 720.
6 Joseph “The Demise of Ultra Vires – Judicial review in the New Zealand
Courts” above n 3.
7 At 354-355.
 A Non-Doctrinal Jaunt Through Judicial Review 33

Colleague X: “So you contend that judicial review is simply the birthright
of the superior courts?”
Colleague Y: “Exactly. Their review powers date from around the
thirteenth century. The ultra vires doctrine is, to parody
Bentham, ‘rhetorical nonsense – nonsense upon stilts’. The
courts claim constitutional justification as the guardians of
the rule of law.”

The administrative lawyer, Stanley de Smith, laconically mused that

judicial review “has significant roots in history.”8 The inherent jurisdiction
has a historical provenance that draws on the origins of the common law
courts. By the end of the thirteenth century, increasing specialisation
within the Curia Regis caused it to unravel, resulting in the emergence
of three royal law courts of justice – the Court of Common Pleas, the
Court of Exchequer, and the Court of King’s Bench. The three Courts
exercised distinct but complementary jurisdictions, except that the Court
of King’s Bench assumed jurisdiction to supervise the proceedings of
other courts (local and royal) and diverse persons and bodies exercising
official functions. The King’s Bench originated as a judicial session of
the inner Curia Regis, held in the presence of the King, and discharged
quasi-governmental judicial functions.9 In time, the Judges ceased to
be members of the Curia Regis and discharged purely adjudicatory
functions, albeit in the name and service of the King.
The review jurisdiction emerged from these early times. Once
established as a court of judicature, the King’s Bench set about
consolidating its control over inferior courts, itinerant justices, and sundry
officials and tribunals, whose decisions had been made irregularly or
without jurisdiction. By the end of the seventeenth century, the King’s
Bench had securely established the basic principles of judicial review.10
The Court developed in tandem the great prerogative writs of habeas
corpus, quo warranto, prohibition, certiorari, and mandamus.11 These
writs gave especial meaning to the Latin expression ubi jus ibi remedium
– where there is a right, there is a remedy. These writs facilitated the

8 SA de Smith Judicial Review of Administrative Action (4th ed, Stevens &

Sons, London, 1980) at 28.
9 For this history of the Court, see Sir Geoffrey Cross and GDG Hall (eds)
Radcliffe and Cross: The English Legal System (6th ed, Butterworths, London,
1977).
10 De Smith, above n 8, at 28.
11 For a history of the writs, see de Smith, above n 8, at 584–595. Later editions
of de Smith’s text collapsed de Smith’s original historical survey into a
much shortened-account. The current edition omits the survey entirely:
H Woolf and others de Smith’s Judicial Review (8th ed, Sweet & Maxwell,
London, 2018). For an overview of de Smith’s historical survey, see Joseph
(2021) above n 3, at 27.2.1.
34 Otago Law Review (2021) Vol 17 No 1

development of judicial review, but they did not supply the full suite
of public law remedies. In the nineteenth century, the King’s Bench
appropriated from private law the ordinary remedies of injunction and
declaration to supplement the ancient writs.
The inherent jurisdiction of the King’s Bench travelled with the
expansion of empire. The first courts established in New Zealand were
authorised to exercise the common law and equity jurisdictions of the
Superior Courts in England, which included the inherent jurisdiction
to review.12 Statutory reforms over the past 50 years have streamlined
judicial review procedures but have not transformed the Court’s
inherent jurisdiction. The Judicature Amendment Act 1972 introduced
a composite procedure – called an “application for review” – to avoid
the injustices that resulted from an applicant having selected the wrong
remedy.13 An application for review required applicants to identify the
nature of the relief sought rather than nominate by name the particular
remedy. It established one overall remedy where one or more of the
prerogative or ordinary remedies were available. The Judicial Review
Procedure Act 2016 replaced and modernised the Judicature Amendment
Act 1972 and the application for review procedure. These statutes
effected major procedural innovations but did not alter the scope of the
ancient writs or the Court’s inherent jurisdiction.

B Judicial disciplines
The High Court’s inherent jurisdiction acknowledges the illusory limits
of judicial review. The Court’s only restraints are those it reposes upon
itself. It has jurisdiction to determine the limits of its own jurisdiction,
subject only to rights of appeal and any statutory limits as Parliament
may impose.14 However, the inherent nature of its jurisdiction does not
make the judicial task unconstrained and free. Several factors inform
the options in judicial review: “the judge’s knowledge and experience of
the law, the disciplines of the judicial role, the professional expectations
on judges, judicial peer pressure, and the commitment to do practical
justice”.15 In a successful judicial review, the judge will set out the facts

12 Supreme Court Ordinance 1841 5 Vict s II. See now the Senior Courts Act
2016, s 12.
13 Judicature Amendment Act 1972 (repealed), s 4. See now the Judicial
Review Procedure Act 2016, ss 4, 8.
14 R v Bedwellty Justices, ex parte Williams [1997] AC 225 (HL) at 232. See also
New Zealand Waterside Workers’ Federation Industrial Association of Workers
v Frazer [1924] NZLR 689 (SC) at 707; and Re Kestle (No 2) [1980] 2 NZLR
353 (CA) at 358. Statutory privative provisions seldom succeed in ousting
the High Court’s review jurisdiction: see H v Refugee and Protection Officer
[2019] NZSC 13, [2019] 1 NZLR 433 (discussed below).
15 Joseph (2021), above n 3, at 22.4.5.
 A Non-Doctrinal Jaunt Through Judicial Review 35

and context of the case and explain how the decision-making faltered
and why the court must intervene.
Democracy imposes limits to the acceptability of judicial review.16
Parliament mandates public decision-makers to develop policies and
guidelines in administering statutory schemes, and the courts refrain
from intruding upon their specialist functions. The courts readily defer
when called upon to review public decisions involving: polycentric
considerations,17 considerations of national security,18 the allocation
of national resources,19 or national political or policy considerations.20
The exercise of inherent jurisdiction is constrained by the limitations of
the judicial role and the courts’ respect for the functional expertise of
specialist decision-makers. The courts are pragmatically cautious and
defer rather than overreach the judicial remit.

III Justiciability/reviewability
A Kindred concepts
“Justiciability” and “reviewability” are kindred concepts that may be
used interchangeably. That was not always so. For a period last century,
the term “justiciability” denoted “no-go” zones in judicial review, where
the courts could not (or would not) intervene. They ring-fenced areas
of public administration and declared them to be non-justiciable. The
courts determined that certain subjects of public decision-making were
off-limits and not open to judicial scrutiny. The concepts of jurisdiction
and justiciability were conflated to create a judicial review Alsatia.

16 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR
537 (CA) at 546.
17 Te Runanga o Raukawa Inc v Treaty of Waitangi Fisheries Commission HC
Wellington CP322/96, 7 August 1997 at 11. Decisions concerning allocation
of national resources necessarily entail polycentric decision-making.
18 Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA) at 37;
Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [22]–[23]; Attorney-
General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at
[31], [120]; and Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1
NZLR 289 at [93].
19 Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd
[1998] NZAR 58 (CA) at 66; Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1
at [116]; Sathyan v Commissioner of Police [2015] NZHC 3138, [2016] NZAR
175 at [12], [26]; and XY v Attorney-General [2016] NZHC 1196, [2016]
NZAR 875 at [60].
20 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 198; Minister
of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 352;
Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA) at 38,
46; Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2
NZLR 537 (CA) at 546; and Lange v Atkinson [2000] 1 NZLR 257 (PC) at
262.
36 Otago Law Review (2021) Vol 17 No 1

In the ensuing years, the courts reappraised their role in accordance

with changing social expectations. They prised apart the expressions
“jurisdiction” and “justiciability”, and treated these as distinct
concepts conveying different things. Jurisdiction identifies the court’s
power to intervene in judicial review, while justiciability identifies the
appropriateness to intervene. Today, no area of public administration
is immune from judicial review per se: “There is no such thing as an
unreviewable exercise of government power.”21 The High Court is
apprised of jurisdiction to adjudge all public decision-making and rule
whether or not it falls within the lawful powers of government.22 The
subject-matter of administrative discretion does not affect jurisdiction but
rather the reviewing court’s decision whether or not to intervene. Is the
subject-matter of the impugned decision justiciable (that is, appropriate
for curial intervention)? The senior courts respect the institutional
differences between the branches and typically defer over decisions
involving national security, allocation of national resources, or national
political or policy considerations.23

B Modern preference
The preference today is to use the term “reviewability” rather than
“justiciability”. The latter expression too readily conjures images of
when the courts clung to no-go zones in judicial review. The expression
“reviewability”, in contrast, is not tainted by any past association.
It denotes amenability to review which focuses on the nature and
consequences of the exercise of power. Over the past 50 years, the courts
have progressively removed former impediments to judicial review

21 Cao v ministry of Business, Innovation and Employment [2014] NZHC

1551, [2014] NZAR 871 at [37]. The principle of non-interference in the
legislative process (see Joseph, (2021), above n 3, at 16.4.2) might create
an exception. This principle is a separation-of-powers construct that
operates as a jurisdictional bar to avoid collision between the branches
of government. The courts will not adjudicate on matters that are before,
or about to come before, the House of Representatives. See Ngāti Whātua
Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 which
reined in the reach of the non-interference principle. This decision
established the courts’ jurisdiction to pronounce upon disputed mana
whenua rights in Treaty settlement negotiations.
22 Cao v ministry of Business, Innovation and Employment, above n 21, at [39];
Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1];
and Commissioner of Inland Revenue v Chatfield & Co Ltd [2019] NZCA 73,
[2019] 2 NZLR 832 at [32]. See Lord Cooke of Thorndon “The Road Ahead
for the Common Law” (2004) 53 ICLQ 273 at 282; Lord Steyn “Deference:
A Tangled Story” [2005] 2 PL 346 at 351; and PA Joseph “Scorecard on our
Public Jurisprudence” (2005) 3 NZJPIL 223 at 246-249.
23 For decision-making subject-matter that typically invites judicial
deference, see Joseph (2021) above n 3, at 22.5.2. See also above nn 17–20.
 A Non-Doctrinal Jaunt Through Judicial Review 37

and broadened the range of persons or bodies that are amenable to

the supervisory jurisdiction. Applications for review may lie against:
ministers of the Crown, heads of government departments, lower
courts, statutory bodies, Crown entities, state-owned enterprises, local
authorities, incorporated bodies, unincorporated domestic bodies,
non-statutory regulatory bodies, royal commissions/commissions of
inquiry, and even private organisations.24 In principle, all exercises of
public power are reviewable, whether the power be sourced in statute,
the royal prerogative, the common law or contract.25 The focus is on the
nature of the impugned decision and its consequences, not the source
of power that is exercised.
Modern courts have discarded former doctrinal complications and
developed easily digestible principles of judicial review.26 The test of
reviewability is non-formalist and simply expressed: is the exercise
of power “in substance … public” or does it have “important public
consequences”?27 Even the exercise of non-legal powers is reviewable if it
has public consequences or the powers are public in nature. It is no longer
a requirement that decision-makers be “empowered by public law” to
be susceptible to review. 28 A power that is de facto and assumed, as part
of a non-statutory regulatory regime, may entail the exercise of public
power that is reviewable.29 Similarly, the exercise of contractual power
may be reviewable if the decision-making has a public “dimension”.30 In
Air Nelson Ltd v Minister of Transport,31 a ministerial pricing decision was
reviewable as it had a dual commercial and regulatory focus involving
a “public law aspect”.
Decisions of a commercial nature will seldom be reviewable. Trading

24 See Joseph (2021), above n 3, at 22.6.1(1) for a list of authorities illustrating

judicial review of the listed persons or bodies.
25 Ririnui v Landcorp Farming Ltd, above n 22, at [1].
26 See PA Joseph “False Dichotomies in judicial Review: From There to Here”
[2016] NZ L Rev 127; Joseph (2021), above n 3, at 22.8.1–22.8.3.
27 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at
11. See also Wilson v White [2005] 1 NZLR 189 (CA) at [21]; Air Nelson v
Minister of Transport, [2008] NZCA 26, [2008] NZAR 139, at [33]; and Lab
Tests Auckland Ltd v Auckland District Health Board, above n 1, at [351].
28 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
(HL) at 409.
29 R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] 1 QB 815
(CA); R v Panel on Take-overs and Mergers, ex parte Guinness plc [1990] 1 QB
146 (CA); and Electoral Commission v Cameron [1997] 2 NZLR 421 (CA).
30 Webster v Auckland Harbour Board [1983] NZLR 646 (CA); Mercury Energy
Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC);
Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA); Okahu
Haulage Inc v Auckland City Council [2010] NZAR 82 (HC) at [15]; and Te
Whanau O Waipareira Trust v Attorney-General [2012] NZHC 3107 at [135].
31 Air Nelson Ltd v Minister of Transport, above n 27, at [33].
38 Otago Law Review (2021) Vol 17 No 1

functions under contract will typically lack the necessary public

law “dimension” or “aspect”. Such functions include entering into
or terminating commercial supply contracts for goods or services.
Commercial decisions may be reviewable in two situations only: where
there is evidence of fraud, corruption or bad faith,32 or where the
impugned decision is affected with a public interest. In Ririnui v Landcorp
Farming Ltd,33 the Supreme Court held that Landcorp’s tendering of land
for sale was reviewable on broader grounds than fraud, corruption or bad
faith. The tender process was affected with a public interest; Landcorp
had an arrangement with the Crown to make available former Crown
lands to be used in Treaty of Waitangi settlements.
The law defining reviewability illustrates the flexibility of judicial
review. The courts flex their judicial review powers according to the
justice of the case, not hard and fast rules. The drivers of judicial review
are: discretion,34 overall evaluation,35 context,36 and the instinctual nature
of the judicial role.

IV Instinctual nature of judicial review

A Inarticulate premise
The defining characteristics of judicial review (discretion, overall
evaluation and context) make it an instinctual exercise. We should ask:37

What is the true catalyst in judicial review? What moves a court to say that
a decision cannot stand and must be set aside? Is it principles, doctrine or
curriculum, or something more basic and intuitive? Experience suggests
the latter.

The instinctual nature of the forensic exercise is the inarticulate

premise of judicial review. R v Panel on Take-overs and Mergers, ex parte
Guinness plc38 is a stand-out decision that seized upon the inarticulate

32 Auckland Electric Power Board v Electricity Corporation of New Zealand [1994]

1 NZLR 551 (CA) at 560; Mercury Energy Ltd v Electricity Corporation of
New Zealand Ltd [1994] 2 NZLR 385 (PC) at 391; Reckitt and Colman (New
Zealand) Ltd v Pharmaceutical Management Agency Ltd [1997] NZAR 464
(HC) at 473; and Te Whanau O Waipareira Trust v Attorney-General, above
n 30, at [135]-[136].
33 Ririnui v Landcorp Farming Ltd, above n 22.
34 London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR
182 (HL) at 190; and Martin v Ryan [1990] 2 NZLR 209 (HC) at 236.
35 AJ Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA) at 4.
36 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001]
2 AC 532 at [28].
37 Joseph (2021), above n 3, at 22.4.1.
38 R v Panel on Take-overs and Mergers, ex parte Guinness plc [1990] 1 QB 146
(CA).
 A Non-Doctrinal Jaunt Through Judicial Review 39

premise: “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.”39 Lord Donaldson of Lymington termed
this the “innominate ground” of review, 40 although it was more a
methodological prescription than a substantive ground of challenge.
Donaldson himself styled his question, “the ultimate question … as
always”.41
Courts in judicial review will occasionally couch their judgments in the
language of Lord Donaldson’s simple but penetrating question. In Pora v
Attorney-General,42 the inarticulate premise of judicial review became the
articulate premise. Counsel adopted Lord Donaldson’s question, “has
something gone wrong?”, and treated it as an abridgement of the grounds
of review pleaded in the statement of claim. Counsel submitted in oral
argument that “it was ‘of no real moment’ to isolate any particular one
of them.”43 “The central contention,” observed the Court, “was … that
‘something in public law terms has gone terribly wrong’ and Mr Pora
has, thereby, suffered ‘a new and different injustice’.”44 The Court agreed
and granted the declaration sought.45 The Court of Appeal adopted a
similar approach in Financial Services Complaints Ltd v Chief Ombudsman.46
The Court rehearsed Lord Donaldson’s question and resolved that the
decision-making errors were “of a nature and degree that warrant judicial
intervention”.47 Again, it was the instinctual response, not the pleaded
grounds of review, that drove the Court’s decision.

B Robin Cooke: judicial lodestar

The question, “has something gone wrong?”, takes us to the heart of
judicial review. The forensic exercise is “inherently discretionary”,48
and cannot be reduced to formulaic rules for producing predictable and
mechanical outcomes. Forty years ago, Sir Robin Cooke signalled the
move away from fixed principles of legality in favour of a more flexible,
integrated approach to judicial review. In AJ Burr Ltd v Blenheim Borough

39 At 160.
40 At 160. See Joseph (2021), above n 3, at 24.6.4.
41 R v Panel on Take-overs, above n 38, at 160.
42 Pora v Attorney-General [2017] NZHC 2081, [2017] 3 NZLR 683.
43 At [80].
44 At [80] (quoting from counsel’s written submissions).
45 At [138].
46 Financial Services Complaints Ltd v Chief Ombudsman [2018] NZCA 27,
[2018] 2 NZLR 884.
47 At [56].
48 London and Clydeside Estates Ltd v Aberdeen District Council, above n 34, at
190; Martin v Ryan [1990] 2 NZLR 209 (HC) at 236.
40 Otago Law Review (2021) Vol 17 No 1

Council,49 his Honour explained the need for “overall evaluation”: “The
determination whether to set the decision aside or not is acknowledged
to depend less on clear and absolute rules than on overall evaluation.”50
The methodology of overall evaluation lends transparency to the forensic
process and underscores its discretionary nature. Sir Robin emphasised
the specific factual and interpretive issues and down-played refinements
in the background doctrines of administrative law.51 For him, the
“governing factors” were “statutory interpretation” and “the judicial
attitude of mind”.52 He applauded the innominate ground coined by
Lord Donaldson in Ex parte Guinness, as “capturing the essence of the
law of judicial review”.53 Has something gone wrong, and, if so, what
should be done about it?
Robin Cooke displayed penetrating insight last century when he
reflected on judicial review. No New Zealand jurist has had greater
impact during my lifetime as a legal academic. His doctoral studies at
Cambridge brought home the distracting formalism that was choking
judicial review.54 It was he who counselled courts to keep judicial review
“relatively simple, untechnical and prompt”.55 He espoused judicial
directness and honesty of mind over the formal trappings of pedagogy
and legal doctrine. He championed the simple construct of reviewable
error of law over the doctrines of ultra vires and jurisdictional/non-
jurisdictional error. These arcane doctrines had fixed the parameters
of judicial review throughout the middle years of last century. Robin
Cooke’s influence was also felt in another telling way: he led the
transformation away from the old dichotomies that posited binary
choices in judicial review.

49 AJ Burr Ltd v Blenheim Borough Council, above n 35. This analysis draws
on Joseph (2921), above n 3, at 22.8.3.
50 AJ Burr Ltd v Blenheim Borough Council above n 35, at 4.
51 Sir Robin Cooke “Foreword” in GDS Taylor Judicial Review: A New Zealand
Perspective (Butterworths, Wellington, 1999) at v.
52 Sir Robin Cooke “Has administrative law gone too far?” (paper presented
to the International Bar Association, 25th Biennial Conference, Melbourne,
October 1994).
53 Sir Robin Cooke “Foreword”, above n 51, at v.
54 RB Cooke “Jurisdiction: An Essay in Constitutional, Administrative
and Procedural Law” (PhD, University of Cambridge, 1954). See MB
Taggart “The Contribution of Lord Cooke to Scope of Review Doctrine
in Administrative Law: A Comparative Common Law Perspective” in P
Rishworth (ed) The Struggle for Simplicity in the Law: Essays for Lord Cooke
of Thorndon (Butterworths, Wellington, 1997) 189.
55 In delivering judgment of the Court in Minister of Energy v Petrocorp
Exploration Ltd [1989] 1 NZLR 348 (CA) at 353. Numerous courts have
since repeated his admonition: see the sample of authorities listed above
in n 1.
 A Non-Doctrinal Jaunt Through Judicial Review 41

Nine judicially constructed dichotomies dominated administrative

law method following the Second World War (1939–1945). These were:
jurisdictional v non-jurisdiction error, judicial v administrative decisions,
legal v non-legal interests, statutory v prerogative power, void v voidable
error, ministerial v non-ministerial decisions, mandatory v directory
directions, standing v non-standing, and public v private bodies.56 These
dichotomies posited “either”/ “or” doctrine. A case either fell into
category X, or it fell into category Y: there was nothing between. How
the court categorised the case predetermined the outcome. If a court ruled
an administrative error jurisdictional, the applicant succeeded. But if it
ruled the error non-jurisdictional, the applicant failed. Only jurisdictional
error triggered the ultra vires doctrine. By the end of the 1970s, it was
dawning on the courts that these dichotomies were “misleading”, “not
easily fitted to the requirements of administrative law”.57 They had forced
courts to cramp cases into rigid legal categories – categories that were
“mutually exclusive and starkly contrasted”, “invented by lawyers for the
purposes of convenient exposition.”58 Robin Cooke was in the vanguard
in dispensing with the binary “either/or” approach to judicial review.

C Why some challenges succeed and others fail

I caution public law students never to be drawn into predicting the
outcome of judicial review challenges. Clients seeking reassurance will
often ask: “Will we win?” Second-guessing such outcomes is a precarious
and ill-advised exercise. That is because of the mix of discretion, overall
evaluation and contextual idiosyncrasy in judicial review, and the
instinctual nature of the forensic exercise: applicants will succeed only
if they trigger the instinctual response that the decision-making has
misfired, calling upon the court’s intervention. The judge instinctively
asks: “Has something gone wrong, and, if so, what should be done about
it?” In one case, the Judge entered the courtroom, acknowledged counsel,
took his seat and said: “Subject to what the Crown has to say, I can see
no answer to this challenge.”59 The case on the papers had triggered the
required instinctual impulse.
Many applications for review fail to trigger the necessary reaction.60

56 See PA Joseph “False Dichotomies in Judicial Review: From There to

Here”, above n 3. This analysis follows that at 128–129.
57 London and Clydeside Estates Ltd v Aberdeen District Council, above n 35, at
189.
58 At 189–190.
59 Retirement Villages Association of New Zealand v Minister for Building and
Construction, HC Wellington CIV-2007-485-2139, 19 December 2007
(successful application for judicial review). I disclose my professional
involvement in my capacity as co-counsel for the applicant.
60 This analysis draws on Joseph (2021), above n 3, at 22.4.1.
42 Otago Law Review (2021) Vol 17 No 1

When this occurs, no amount of persuasive advocacy will cause the judge
to uphold the applicant’s challenge. The case may be cleverly constructed,
adroitly argued and persuasively supported, but it will falter on the need
to show that the decision-making had misfired. The judge has several
fall-back positions to justify a decision not to intervene:61

The Judge will rehearse the orthodox language of the law to show why
cause to intervene was lacking. The issues may: be non-justiciable, warrant
deference to the decision-maker, be more suited for determination in
another forum, or be dealt with fairly notwithstanding an initial error
or defect.

It is axiomatic that a reviewable error must satisfy the materiality test.

The courts will not be drawn by errors having minor or technical effect.
The error must, in a qualitative sense, affect the outcome of the decision-
making: it must be “an error in the actual making of the decision which
affected the decision itself”.62 An error or defect having minor or technical
effect will not cause a judge to say, “Something has gone wrong which
calls for curial intervention.”

D Grounds-of-review framework
The instinctual nature of judicial review raises questions about the
grounds-of-review framework that has anchored administrative
law pedagogy, at least since the House of Lords decision in Council
of Civil Service Unions v Minister for the Civil Service.63 It has been
customary to organise judicial review and the framing of cases around
the three established grounds of review – illegality, irrationality (or
unreasonableness) and procedural impropriety.64 Counsel typically set
out in their statement of claim the pleaded grounds of review, and direct
their written and oral submissions to establishing each of the grounds.
The framework has provided a useful taxonomy in a field of public law
that has undergone transformative change over the past 60 years.
The grounds-of-review framework filled the vacuum created by the
systematic culling of the formalist doctrine of last century. The self-

61 Joseph (2021), above n 3, at 22.4.1 (footnotes omitted).

62 Peters v Davison [1999] 2 NZLR 164 (CA) at 202, citing Re Racal
Communications Ltd [1981] AC 374 (HL).
63 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
(HL) at 410 where Lord Diplock identified the three distinct grounds of
review.
64 Proportionality method has defied many commentators and not migrated
from rights adjudication to colonise mainstream administrative law. See
Council of Civil Service Unions v Minister for the Civil Service, above n 63,
at 410 where Lord Diplock identified proportionality as a conceivable
fourth ground of judicial review.
 A Non-Doctrinal Jaunt Through Judicial Review 43

evident concept of reviewable error of law replaced ultra vires as the

central plank of judicial review.65 This relieved courts of the need to
distinguish between jurisdictional error (which was reviewable) and non-
jurisdictional error (which was not reviewable). Distinguishing between
the two types of error had become an increasingly artificial and arbitrary
exercise. The courts also began unpicking the many dichotomies that had
reduced judicial review to binary choices that predetermined the outcome
of cases. The transition to an evaluative, contextual approach swept
aside doctrine that had sought to portray administrative law as rigorous,
analytical and “respectable”.66 The grounds-of-review framework Lord
Diplock formalised in Council of Civil Service Unions gave structure to an
otherwise barren pedagogical landscape.
The question now is whether the grounds-of-review framework retains
its former utility.67 If judicial review is truly instinctual and intuitive,
need applications for review be conceptualised according to grounds
of review? Possibly not. The High Court decision in Pora v Attorney-
General68 exemplifies a more holistic approach to decision-making error.
In oral argument, counsel discarded the pleaded grounds of review in the
statement of claim and advanced the unadorned proposition: “something
in public law terms has gone terribly wrong”.69 The Court accepted
counsel’s submission and granted the relief sought. The Court made no
attempt to align the decision with a pleaded ground of review: it bypassed
the grounds-of-review framework under a more direct and penetrating
analysis of the decision-making error.70 The Court of Appeal, too, has
adopted Lord Donaldson’s instinctual approach to decision-making
error. In Financial Services Complaint Ltd v Chief Ombudsman,71 the Court
found the decision-maker had improperly fettered discretion and failed
to weigh relevant considerations. The Court concluded: “The errors we
have identified in the decision under review are in our assessment of a
nature and degree that warrant judicial intervention.”72
A retreat from the grounds-of-review framework would herald a
further transformational change in judicial review. Such a move would
complete Sir Robin Cooke’s quest, “The Struggle for Simplicity in

65 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA); Hawkins v
Minister of Justice [1991] 2 NZLR 530 (CA); Miller v Commissioner of Inland
Revenue [1995] 3 NZLR 664 (CA); and Peters v Davison, above n 62.
66 See Joseph “False Dichotomies in judicial Review: From There to here”
above n 3, at 127-128.
67 See Joseph (2021), above n 3, at 22.4.4.
68 Pora v Attorney-General, above n 42.
69 At [80].
70 Joseph (2021), above n 3, at 22.4.4.
71 Financial Services Complaint Ltd v Chief Ombudsman, above n 46.
72 At [56].
44 Otago Law Review (2021) Vol 17 No 1

Administrative Law”.73 However, the possibility of this happening is

remote. While the “instinctual response” might be the driver in judicial
review, there is no indication the courts would abandon the grounds-of-
review taxonomy for analysing decision-making error. There seems no
judicial appetite for a doctrinally untrammelled law of judicial review.

V Error of law versus error of fact

A Context
Dealing the quietus to the ultra vires doctrine was the breakthrough in
administrative law last century.74 The intense and sometimes acrimonious
debate over the doctrine in the closing years of last century eventually
forged a new consensus:75 material error of law was the conceptual basis
and appropriate standard of review.76 This was a timely and welcomed
development, but it left unanswered one question: judicial review lies
for material error of law but does it also lie for material error of fact?
The courts tend to treat errors of law and of fact as being qualitatively
different.
Before the Supreme Court was established, the Court of Appeal had
divided over the question.77 In the 1980s, Cooke P repeatedly proclaimed
mistake of fact as an independent ground of review, while Richardson J
disagreed or reserved judgment.78 The contest was whether mistake of
fact was a discrete ground in its own right, or a particular manifestation
of “error of law” review. In Bryson v Three Foot Six Ltd,79 the Supreme
Court resolved that contest in favour of error of law review. In Lewis v
Wilson & Horton,80 the Court of Appeal had warned that the High Court
was not permitted to reopen determinations of fact on applications for

73 Sir Robin Cooke, above n 2.

74 See Joseph (2021), above n3, at 22.8.1–22.8.2.
75 The debate was waged primarily between public lawyers at Oxford,
Cambridge and London Universities: see C Forsyth (ed) Judicial Review
and the Constitution (Hart Publishing, Oxford, 2000) which reproduces
the leading writings for and against the ultra vires doctrine. I chimed in
from the side lines: see “The Demise of Ultra Vires – Judicial Review in
the New Zealand Courts”, above n 3.
76 Peters v Davison above n 62, at 181. See also Bulk Gas Users Group v Attorney-
General, above n 65, at 133-136; Tannadyce Investments Ltd v Commissioner
of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [30].
77 See Joseph (2021), above n 3, at 23.5.5(1).
78 See Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at
146–149 (per Cooke J), 149 (per Richardson J); New Zealand Fishing Industry
Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544
(CA) at 552 (per Cooke P), 564 (per Richardson J).
79 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
80 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at 568.
 A Non-Doctrinal Jaunt Through Judicial Review 45

review. It might intervene only where the decision of fact was a condition
precedent to the exercise of power (a “jurisdictional fact”), or the error of
fact resulted in a decision that was unreasonable. In Bryson, the Supreme
Court endorsed that approach and subsumed mistake of fact within error
of law review. The Court set an exacting threshold before mistake of
fact would metamorphose into error of law. A finding of fact had to be
so insupportable, or so untenable, that “proper application of the law
require[d] a different answer”.81 There was no jurisdiction to upset a
factual finding that had a rational basis and was reasonably supported
(where one of two or more tenable inferences may be drawn from the
facts). The Bryson threshold counsels against judicial second-guessing
of factual findings, which are part of the discretionary decision-making
reserved to the specialist decision-maker.
Does that approach withstand scrutiny? Possibly not on two counts:
the law/fact distinction is an unstable one, and errors of fact may be as
damning for decision-makers as errors of law.

B Unstable distinction
Joseph on Constitutional and Administrative Law82 explains that the
distinction between error of law and error of fact is inherently unstable.
In E v Secretary of State for the Home Department,83 the Court of Appeal of
England and Wales alluded to the “notorious difficulty” of distinguishing
between errors of law and of fact. Bryson v Three Foot Six Ltd84 encapsulates
the instability of the distinction: an unsupported finding of fact may
be so untenable as to be reviewable as an error of law (error of fact
metamorphoses into error of law). Where a decision-maker fixes rent
for dwelling houses and it erroneously fixes rent for business premises,
it may have made an error of law (it may misinterpret its powers) or of
fact (it my wrongly classify a building as a dwelling). The criminal law,
in particular, has struggled over mistake of law and mistake of fact.85 X
purchases grass clippings believing them to be cannabis and is charged
with attempted possession of a controlled substance. Question: Is this
a mistake of fact or of law? Answer: It is both. It is a mistake of fact
because grass clippings are not in fact the prohibited substance (factual
impossibility), but it is also a mistake of law because it is not in law an
offence to possess grass clippings (legal impossibility). This exposes the

81 Bryson v Three Foot Six Ltd, above n 79, at [26].

82 See Joseph (2021), above n3, at 23.5.1.
83 E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004]
QB 1044 at [44].
84 Bryson v Three Foot Six Ltd, above n 79.
85 See G Williams “The lords and impossible attempts – or Quis custodiet
ipsos custodies” [1986] CLJ 33.
46 Otago Law Review (2021) Vol 17 No 1

illogic of holding that X may be convicted of attempted possession if the

offence is factually impossible but not if it is legally impossible

C Dispensing with the binary classification

Dispensing with the binary classification would rid the law of a
problematic distinction. Howsoever one classifies decision-making error
is of no consequence. The crucial matter is whether the error materially
(that is, directly and causally) affects the decision-making outcome. In
Ririnui v Landcorp Farming Ltd,86 two Judges cast aside the distinction
and emphasised materiality as the determining criterion. For Elias CJ
and Arnold J, the Crown’s error was reviewable as it had a direct and
causal impact on the decision-making. Their approach dispenses with the
linguistic sparring over the binary classification and rids administrative
law of a false dichotomy.
For a period last century, administrative law was riddled with false
dichotomies that complicated judicial review. I listed above nine
dichotomies when recording the imprint Robin Cooke left on New
Zealand’s administrative law.87 These dichotomies finally succumbed
to the purge that simplified the law of judicial review, except for the
“error of law versus fact” distinction. This dichotomy should now be
read its last rites. The approach of Elias CJ and Arnold J in Ririnui is
eminently more sensible than sparring over an unstable distinction. An
error that materially affects the decision-making outcome, howsoever
it is classified, should be reviewable.

VI Landmark decision
The Supreme Court decision in H v Refugee and Protection Officer88 is
a landmark decision on two counts: it makes a stark statement on
the putative sovereignty of Parliament, and it recalibrates the law on
privative clauses and de novo appeals.

A Of parliamentary sovereignty
(i) Parliament’s interpretive instruction
Upon entering the country’s law schools, students are inculcated with
statements about Parliament’s sovereignty and the courts’ correlative
duty of obedience. The courts must take Parliament’s legislation,
interpret it, and apply it dutifully, according to its text, purpose and

86 Ririnui v Landcorp Farming Ltd, above n 22, at [54], [91], [95]. [97]–[99],
[110], [152], [186] per Elias CJ and Arnold J.
87 See above under the sub-heading, “Robin Cooke: judicial lodestar”
88 H v Refugee and Protection Officer, above n 14.
 A Non-Doctrinal Jaunt Through Judicial Review 47

context. Parliament’s interpretive instruction is caustically blunt: “The

meaning of legislation must be ascertained from its text and in the light
of its purpose and its context.”89 That instruction is marvellously free of
ambiguity: the courts must have regard to text, purpose and context in
ascertaining the meaning of legislation. Now consider the decision in H
v Refugee and Protection Officer.

(ii) The decision

H applied under the Immigration Act 2009 for refugee status and
provided a personal statement in support. The Refugee and Protection
Officer (RPO) scheduled an interview and informed H that it was
important he attend. He was required to supply a medical certificate if he
was unable to attend for medical reasons. The day before the interview,
H fell ill and obtained a doctor’s certificate which H’s lawyer forwarded
to the RPO. The RPO issued his decision two days later, declining H’s
claim for refugee status. The RPO resolved that H’s medical certificate did
not meet the Department’s standard-form criteria and ruled that he had
failed to attend the interview. H’s lawyer complained and the Refugee
Status Branch (RSB) accepted that the RPO’s decision was harsh but ruled
that the Immigration Act 2009 did not permit an RPO’s decision to be
re-opened once made. H’s only recourse was to appeal the decision to
the Immigration and Protection Tribunal (Tribunal). H sought judicial
review of the RPO’s decisions to refuse to accept the medical certificate
and to decline H’s application.
The High Court dismissed H’s application for want of jurisdiction,90
and the Court of Appeal dismissed an appeal from that decision.91 The
Supreme Court gave leave to appeal and held in the substantive appeal
that it was not deprived of jurisdiction to hear and determine the judicial
review appeal. That ruling threw into sharp relief two sections of the
Immigration Act 2009: s 195 confers a de novo right of appeal to the
Tribunal against an RPO decision,92 and s 249 enacts a privative clause
prohibiting proceedings for judicial review unless a s 195 appeal has
been made and completed. Section 249(1) reads:

249 Restriction on judicial review of matters within Tribunal’s

jurisdiction
(1) No judicial review proceedings may be brought in any court in
respect of a decision where the decision (or the effect of the

89 Legislation Act 2019, s 10(1).

90 H v Refugee and Protection Officer [2017] NZHC 2160, [2017] NZAR 1518.
91 H v Refugee and Protection Officer [2018] NZCA 188.
92 Appeals to the Tribunal from RPO decisions are dealt with in Part 7 of
the Act (ss 183–271).
48 Otago Law Review (2021) Vol 17 No 1

decision) may be subject to an appeal to the Tribunal under this Act

unless an appeal is made and the Tribunal issues final determinations
on all aspects of the appeal.

What do those words mean? They contain no ambiguity: no court may

entertain proceedings for judicial review unless and until the Tribunal has
heard and determined an appeal against the RPO’s decision. In H there
had been no appeal. Yet, the Supreme Court reinstated the proceeding
for judicial review and remitted it to the High Court for hearing.

(iii) Privative clauses and parliamentary sovereignty

The decision in H is a ruling sub silentio on constitutional fundamentals.
Privative clauses raise issues “of constitutional concern” that fashion the
judicial response.93 The courts treat with scepticism statutory commands
that they refrain from ruling on the legality of public decision-making.
By seeking to oust judicial review, privative clauses tamper with
the established relationship between courts and Parliament and the
constitutional balance it secures.
H is one in a long line of decisions where the courts have refused
to be “red carded”.94 The decision speaks the lie to what law students
are grandly told about parliamentary sovereignty. If Parliament is
omnipotent and its word is “law”, it is only because the courts say it is.
Even committed sovereignty theorists accept that it is the responsibility of
the judicial branch to say what the law is.95 The courts are the authoritative
and final expositors of legal meaning and will not be drawn by statutory
commands to renounce their historic jurisdiction to review. They pay lip
service, at best, to the possibility that a privative clause might achieve
its purpose: “It is not what these clauses enact but what the rule of law

93 Tannadyce Investments Ltd v Commissioner of Inland Revenue, above n 76,

at [3].
94 For example, Anisminic Ltd v Foreign Compensation Commission [1969] 2
AC 147 (HL); South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral
Products Manufacturing Employees Union [1981] AC 363 (PC); O’Reilly v
Mackman [1983] 2 AC 237 (HL); Re Racal Communications Ltd, above n
62; Bulk Gas Users Group v Attorney-General, above n 65; R (Cart) v Upper
Tribunal ( Public Law Project Intervening) [2011] UKSC 28, [2012] 1 AC 663;
and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC
22, [2020] AC 491.
95 Marbury v Madison 5 US 137 (1803), 1 Cranch 137 at 177. For acceptance,
see HWR Wade and CF Forsyth Administrative Law (11th ed, Oxford
University Press, Oxford, 2014) at 23.
 A Non-Doctrinal Jaunt Through Judicial Review 49

requires.”96 In R (Privacy International) v Investigatory Powers Tribunal,97

the United Kingdom Supreme Court was disarmingly frank:

[I]t is ultimately for the courts, not the legislature, to determine the limits
set by the rule of law to the power to exclude [judicial] review… The
question in any case is “the level of scrutiny required by the rule of law”.

There is an inconvenient truth that ardent democrats are wont to

overlook: Parliament did not give to the High Court its historic (inherent)
jurisdiction; nor, therefore, is it Parliament’s right to withhold or regulate
it. Privative clauses compromise the bedrock function of courts to uphold
the rule of law and “do right to all manner of people after the laws and
usages of New Zealand, without fear or favour, affection or ill will”.98 The
judicial oath commends courts to rebuff legislative attempts to tamper
with the political-judicial relationship and the judicial responsibility “to
do right to all manner of people”. Their refusal to comply with privative
clauses shows that there are ultimately limits to Parliament’s legislative
competence, even if these limits remain partially indeterminate and
untested. Such clauses do not prevent courts from discharging their
constitutional responsibility to uphold the rule of law and check public
excess or abuse.

(iv) The broader canvas

The idea of supreme and undiminished power is inimical to the Western
paradigm of limited government and the expectations that shape our
physical existence.99 As former Chief Justice Dame Sian Elias observed,
the notion of an omnipotent Parliament seems increasingly divorced from
the world as it is.100 Even the constitutional doyen, Albert Venn Dicey,
acknowledged that Parliament is not, and never has been, sovereign in
the absolutist and unlimited sense. Acolytes of Dicey have attributed

96 Joseph (2021), above n 3, at 22.9.1, citing R (Cart) v Upper Tribunal (Public

Law Project Intervening), above n 94, at [51], [112], [133], and R (Privacy
International) v Investigatory Powers Tribunal, above n 94.
97 R (Privacy International), above n 94, at [131]–[132]. Numerous New
Zealand decisions have affirmed the rule of law rationale of judicial
review: Peters v Davison, above n 62, at 188; Attorney-General v Chapman
[2011] NZSC 110, [2012] 1 NZLR 642 at [201]; Tannadyce Investments Ltd v
Commissioner of Inland Revenue, above n 76, at [3]–[4]; Dotcom v Attorney-
General [2012] NZHC 1494, [2012] 3 NZLR 115 at [27]; and Gibson v Accident
Compensation Corporation [2015] NZHC 221, [2015] 3 NZLR 136 at [54].
98 Oaths and Declarations Act 1957, s 18.
99 See S Elias “Sovereignty in the 21st century: Another spin on the merry-
go-round” (2003) 14 PLR 148; PA Joseph “Parliament, the Courts, and the
Collaborative Enterprise” (2004) 15 KCLJ 321.
100 S Elias “Mapping the Constitutional” [2014] NZ L Rev 1 at 13.
50 Otago Law Review (20219) Vol 17 No 1

more to his writings than he ever intended. Parliament, he wrote, is

controlled by external and internal limits:101

The actual exercise of authority by any sovereign whatever, and notably

by Parliament, is bounded or controlled by two limitations. Of these the
one is external, the other is an internal limitation.

The external limit was the probability of popular disobedience or

opposition to unjust laws (the duty of obedience “must always be in
reality limited”102), and the internal limit derived from the nature of the
sovereign power itself (members of civil society comprising Parliament’s
membership are moulded by the moral values of the day).103 Dicey
concluded: “If the doctrine of Parliamentary sovereignty involves the
attribution of unrestricted power to Parliament, the dogma is no better
than a legal fiction.”104 Several years ago, I wrote that Parliamentary
sovereignty is a latter-day myth perpetrated by our habits of lazy
thinking.105 The great attraction of the doctrine is its lack of complication
and concealment of the “hard” questions that sit beneath its veneer: Can
even a “sovereign” Parliament claim legislative competence to enact
unjust laws? I concluded:106

Parliament has never been sovereign. In the dominant tradition,

sovereignty implies autocracy. It imports the language of Leviathan – the
concentration of supreme and undiminished power in the Sovereign …
But domestic legislative power has never been of this nature. Throughout
English constitutional history, Parliament and the Courts have exercised
co-ordinate, constitutive authority – Parliament through legislation, the
Courts through statutory construction and principles of common law.
While each has been, operationally and functionally, independent of
the other, each has been constitutionally interdependent on the other …
A constitutional relationship of interdependence and reciprocity is the
antithesis of classical sovereignty theory.

VII Privative clauses and de novo appeals/reviews

H changed the dynamic between privative clauses and de novo appeal
or review rights.107 The courts once readily conceded their review

101 AV Dicey Introduction to the Study of the Law of the Constitution (10th ed,
Macmillan & Co Ltd, London, 1959) at 76.
102 At 78.
103 At 80.
104 At 71.
105 PA Joseph “Parliament, the Courts, and the Collaborative Enterprise”,
above n 99, at 321.
106 At 321-322.
107 See Joseph (2021), above n 3, at 22.9.3.
 A Non-Doctrinal Jaunt Through Judicial Review 51

jurisdiction where a statute containing a privative clause provided an

alternative form of redress, such as a de novo administrative appeal
or review.108 For the courts, a de novo right of appeal to or review by
an administrative authority “lessens the need for the normally strict
construction of privative provisions”.109 The courts accepted that a
challenge should be by way of the statutory procedure provided rather
than judicial review. Later courts added the qualification that the
statutory procedure must be at least as effective as judicial review in
order to substitute for it. In Tannadyce Investments Ltd v Commissioner
of Inland Revenue,110 the Tax Administration Act 1994 established for
taxpayers a comprehensive challenge procedure that rendered judicial
review unnecessary. For the majority, the statutory challenge procedure
was more advantageous to the taxpayer as it conferred “broader rights
and remedies than would be available on judicial review”.111
In H the Supreme Court redefined the law on “curing”. The decision
checked the potential of de novo administrative appeals or reviews to
cure a flawed first instance process. The immigration statute established
a two-tier hearing process for applicants seeking refugee status. An
applicant had a right to an interview with a Refugee and Protection
Officer (RPO) and a right of appeal to the Immigration and Protection
Tribunal (Tribunal) against an unfavourable first instance decision. In H
the hearing before the RPO derailed and H sought judicial review rather
than initiate the de novo appeal. Their Honours held that the de novo
appeal could not cure the first instance failure. The appellant had been
deprived of the benefit of the two-tier system (two opportunities rather
than one to persuade the immigration authorities). The Tribunal had no
power to remit the matter back to the RPO for reconsideration, leaving
judicial review the only pathway to reinstate the two-tier statutory
process. “[T]he Tribunal’s process,” the Court observed, “is intended to
be an appeal process, not a first instance process.”112
Following H, arguments that an administrative appeal or review cures
first instance failures “face stiff headwinds”.113 In Ortmann v United
States of America,114 the Supreme Court confined its decision in Tannadyce

108 Calvin v Carr [1980] AC 574 (PC) at 592–593.

109 Parker v Silver Fern Farms Ltd [2011] NZCA 564, [2012] 1 NZLR 256 at [33].
See also Love v Porirua City Council [1984] 2 NZLR 308 (CA) at 310; Ramsay
v Wellington District Court [2006] NZAR 136 (CA) at [31]; Phan v Minister
of Immigration [2010] NZAR 607 (HC) at [37]; and Moodie v Employment
Court [2012] NZCA 508, ERNZ 201 at [16]–[17].
110 Tannadyce Investments Ltd v Commissioner of Inland Revenue, above n 76.
111 At [71] per Blanchard, Tipping and Gault JJ.
112 H v Refugee and Protection Officer above n 14, at [69].
113 Joseph (2021), above n 3, at 22.9.3.
114 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475.
52 Otago Law Review (2021) Vol 17 No 1

to its own statutory setting. “Tannadyce was a very different case from
the present,” the Court observed: “It was a tax case.”115 In Ortmann the
appellants sought judicial review of a District Court decision which held
that the appellants were eligible for surrender under the Extradition Act
1999. Their right of case stated appeal under that Act was more limited
in scope than the statutory challenge procedure in Tannadyce and did not
oust the right to judicial review. For a privative clause to succeed, the
statutory appeal or review procedure must be “the practical equivalent
of … [or] better than a right of judicial review”.116
The Supreme Court’s decision in H is to be commended. Fifty years
ago, Megarry J asked why a person ought to be satisfied “with an unjust
trial and a fair appeal”.117 A right of appeal or rehearing must not leave
a complainant more disadvantaged than had proper process been
observed. H would have been deprived of the two-tier hearing process
had the de novo appeal been capable of curing the first instance failure.
“Curing” might now be confined to low-level decision-making within
domestic organisations (social clubs, incorporated societies, professional
bodies, etc), where the object is to resolve matters under internal disputes
procedures without external oversight.

VIII Remedial discretion

A Earlier judicial attitude
At times, too much has been made of the remedial discretion in judicial
review. Refusing relief in the exercise of discretion may have serious
repercussions for the rule of law: from a plaintiff’s standpoint, a decision
to refuse relief post-validates the public law wrong. In New Zealand
Employers Federation Inc v National Union of Public Employees,118 McGrath
J observed that to refuse the declaration sought would be “positive
validation in disguise”.119 For him, the Court would fail its constitutional
function and raise questions as to its independence were it to decline
relief.120
The overriding purpose of judicial review is to uphold the rule of law.
Decisions founded on material error of law, or otherwise entailing a
misapplication of public power, ought to be subject to judicial correction.

115 At [568].
116 H v Refugee and Protection Officer, above n 14, at [86], citing Tannadyce,
above n 76, at [57], [71].
117 Leary v National Union of Vehicle Builders [1971] Ch 34 (Ch) at 49.
118 New Zealand Employers Federation Inc v National Union of Public Employees
[2002] 2 NZLR 54 (CA) .
119 At [112].
120 At [126].
 A Non-Doctrinal Jaunt Through Judicial Review 53

However, that approach has not always reflected the attitude of the
courts. At times, they have been excessively judgmental in declining
relief to claimants considered “undeserving”.121 The element of remedial
discretion became especially prominent with the expansion of the
judicial function during the post-way era. As the courts broadened the
substantive grounds of review, they became conscious of the need to
contain their review jurisdiction within permissible and manageable
limits. The discretion to refuse relief became an indispensable adjunct
to the judicial function. In Stininato v Auckland Boxing Association (Inc),122
Cooke J expressed uncharacteristic caution:

Concern for the development of administrative law as an effective and

realistic branch of justice must imply that the discretionary remedies
should not be granted lightly. After all, progress is not synonymous with
giving judgment for plaintiffs.

Applicants for judicial review bore a dual burden: to establish the

substantive ground for relief and persuade the court to exercise its
remedial discretion favourably. The burden applicants bore was not a
trifling one. In Stininato the Court thought the applicant’s “general record”
made him undeserving of the Court’s protection.123 The Court alluded
to his “tendency to troublemaking and physical aggressiveness”,124 and
refused to rule on whether the Boxing Association had acted in breach
of natural justice.

B Judicial correction
During the middle years of last century, the courts embraced the remedial
discretion and readily declined relief, notwithstanding the commission
of a public law wrong. That remained the position until the early years
of this century, when a sharp judicial correction reined in the remedial
discretion.125 Where grounds for relief were made out, the courts erected
a strong presumption that relief should follow the wrong. English courts

121 See for example Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR
1 (CA) at 30.; Glaxo New Zealand Ltd v Attorney-General (1991) 4 TCLR 170
(HC) at 181; Percival v Attorney-General [2006] NZAR 215 (HC); McKean v
Attorney-General [2007] 3 NZLR 819 (HC) at [51]; Edwards v Toime [2008]
NZCA 411, [2009] NZAR 47 at [55]; and Wilson v New Zealand Parole Board
HC Christchurch CIV-2010-409-2933, 20 May 2011 at [24]. See also the
decisions cited below, n 154.
122 Stininato v Auckland Boxing Association (Inc), above n 121, at 29.
123 At 30.
124 At 30.
125 See Joseph (2021), above n 3, at 27.4.1(2).
54 Otago Law Review (2021) Vol 17 No 1

led the way. In Berkeley v Secretary of State for the Environment,126 a refusal
to grant relief was “exceptional”,127 available only within a “very narrow”
range of situations.128 In Air Nelson Ltd v Minister of Transport,129 the Court
of Appeal followed Berkeley and stated, as a “starting point”, there must
be “extremely strong reasons to decline to grant relief”.130 In principle, a
claimant who demonstrates that a decision-maker has erred “is entitled
to relief”.131 The Court took succour from its decision in Unison Networks
Ltd v Commerce Commission,132 which issued “strong cautions” against
declining to set aside an unlawful decision.133
The senior courts uniformly followed suit and endorsed the Air Nelson
correction. They declared it would be “rare” for a court to refuse relief:134
“The discretion to be exercised is very narrow or exceptional”;135 “the
rule of law itself requires that if a law has been contravened that should
be plainly enunciated and formally made known.”136 The Air Nelson
correction re-established the primacy of the rule of law in judicial review,
but it was short-lived.

C Judicial retreat
It took little time for judicial pragmatism to beat a hasty retreat from
Air Nelson. The late Gerard McCoy published a stinging critique of
the judicial correction and called for a more nuanced approach to the
remedial discretion.137 In Rees v Firth,138 the Court of Appeal cited McCoy’s
critique and suggested “a more nuanced approach” may be necessary “in
the generality of cases”.139 In Tauber v Commissioner of Inland Revenue,140
the Court eagerly endorsed Rees v Firth and confined the Air Nelson

126 Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL).
127 At 616.
128 At 608.
129 Air Nelson Ltd v Minister of Transport, above n 27.
130 At [60]–[61].
131 At [61].
132 Unison Networks Ltd v Commerce Commission CA284/05, 19 December 2006
at [81].
133 Air Nelson Ltd v Minister of Transport, above n 27, at [61].
134 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518
at [67]; and Survey Nelson ltd v Maritime New Zealand [2010] NZCA 629 at
[52].
135 Survey Nelson ltd v Maritime New Zealand above n 134, at [52].
136 Wool Board Disestablishment Company Ltd v Saxmere Co Ltd [2010] NZCA
513, [2011] 2 NZLR 442 at [141].
137 G McCoy “Public Law Potpourri” [2009] NZLJ 352 at 354.
138 Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408.
139 At [48].
140 Tauber v Commissioner of Inland Revenue 2012] NZCA 411, [2012] 3 NZLR
549 at [90]–[91].
 A Non-Doctrinal Jaunt Through Judicial Review 55

approach to situations of substantial prejudice. Courts that followed

sometimes paid lip service to Air Nelson, while opting for the nuanced,
discursive approach to remedies.141 In a series of decisions, the Court of
Appeal has confirmed the retreat from Air Nelson and endorsed the Rees
v Firth approach.142

D Comment
The remedy of declaration is the most common form of relief in judicial
review and stands apart from the mandatory orders: unlike the latter, a
declaration entails no consequential relief. This makes the Rees v Firth
approach problematic: it does not differentiate between declarations and
the mandatory orders (orders in the nature of certiorari, prohibition,
mandamus or injunction). Unlike declarations, these orders are prone
to downstream consequences.143 Granting a mandatory order might:
adversely affect third parties, cause administrative difficulties or
disruption, serve no useful purpose, eclipse alternative statutory or
domestic remedies, give undue weight to technical or minor decision-
making defect, or quash a decision that was an inevitable outcome. A
declaration, in contrast, does not entail any “consequences”. It might be
sought with or without a prayer for one or more mandatory remedies,
or it may issue in substitution for a mandatory order where the court
considers the situation does not call for consequential relief.144 In
Fitzgerald v Muldoon,145 Wild CJ granted a declaration that Prime Minister
Robert Muldoon had acted unlawfully in breach of art 1 of the Bill of
Rights 1688 (Eng). The Chief Justice granted the declaration but declined
the further remedies of injunction and mandamus, as these would have
served no useful public purpose.
The Rees v Firth approach may be appropriate for the mandatory
orders but not the remedy of declaration. A declaration pronounces

141 See for example Macpherson v Napier City Council [2013] NZHC 2518 at
[86]–[114] (acknowledging Air Nelson at [92]).
142 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [117];
Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013]
NZCA 588, [2014] 2 NZLR 587 at [164]; Department of Internal Affairs v
Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at
[96]; Osborne v WorkSafe New Zealand [2017] NZCA 11, [2017] 2 NZLR
513 at [34]–[36]; Wellington City Council v Minotaur Custodians Ltd [2017]
NZCA 302, [2017] 3 NZLR 464 at [74]–[82]; Ngai Tai ki Tamaki Tribal Trust v
Minister of Conservation [2017] NZCA 613, [2018] 2 NZLR 453 at [59]–[60];
and Middeldorp v Avondale Jockey Club [2020] NZCA 13 at [35].
143 See Joseph (2021), above n 3, at 27.4.2.
144 See for example Barton v Licensing Control Commission [1982] 1 NZLR
31 (HC) at 38–39 (declaration substituted for an order in the nature of
mandamus).
145 Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC).
56 Otago Law Review (2021) Vol 17 No 1

the parties’ legal position inter se without providing further relief: “A

declaration neither commands nor restrains action.”146 If a material error
of law is established, the courts should not balk at granting a declaration,
whether or not discretion is exercised to refuse a mandatory order. In
the challenge to the legality of the 2020 COVID lockdown, the Full Court
endorsed the following statement of principle: “Where an applicant
establishes the substantive basis for a declaration, it is difficult to envisage
a valid reason to decline the order.”147 A declaration should be refused
only under the strict Air Nelson threshold – where a refusal would be
“exceptional”,148 based on “extremely strong reasons”.149 The courts will
refuse a declaration where: the issue is purely abstract or hypothetical,150
or the facts are in dispute,151 or the remedy would usurp the jurisdiction
of the criminal courts.152
The courts on occasion have refused to grant declarations where they
were seen to lack utility, or where there was no perceived injustice.
This approach to the remedial discretion fails to differential between
declarations and mandatory orders, and misconceives the essential nature
of a declaration. A declaration vindicates a violation of the plaintiff’s
rights and promotes the ideals of the rule of law.153 In prison disciplinary
cases, some courts have refused relief on the basis that a refusal would
cause no injustice.154 That exercise of the remedial discretion must be
seen for what it is – avowedly cynical, as though prisoners could never be
deserving of the court’s protection. In another prison disciplinary case,
the Court of Appeal granted a declaration and refused simply to record

146 Sisters of Mercy (Roman Catholic Diocese of Auckland Trust Board) v Attorney-
General HC Auckland CP219/99, 6 June 2001 at [51].
147 Borrowdale v Director-General of Health [2020] NZHC 2090 (Full Court),
[2020] 2 NZLR 864 at [283], quoting PA Joseph Constitutional and
Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington,
2014) at 27.3.3. The statement is reproduced in Joseph (2021), above n 3,
at 27.3.3.
148 Berkeley v Secretary of State for the Environment, above n 126, at 616.
149 Air Nelson Ltd v Minister of Transport, above n 27, at [60]–[61].
150 Attorney-General v Refugee Council of New Zealand [2003] 2 NZLR 577 (CA)
at [45]; and Wool Board Disestablishment Co Ltd v Saxmere Co Ltd, above n
136.
151 Electoral Commission v Tate [1999] 3 NZLR 174 (CA) at [38], [42].
152 Imperial Tobacco Ltd v Attorney-general [1981] AC 718 (HL); R v Sloan [1990]
1 NZLR 474 (HC).
153 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429; Akaroa
Marine Protection Society Inc v Minister of Conservation [2012] NZHC 933,
[2012] NZRMA 343 at [70]; and Middeldorp v Avondale Jockey Club Inc,
above n 142, at [30], [44].
154 Percival v Attorney-General, above n 121; Lory v Attorney-General [2007]
NZAR 361 (HC); and Lory v Attorney-General (No 2) [2008] NZAR 373
(HC).
 A Non-Doctrinal Jaunt Through Judicial Review 57

that a breach of the prisoner’s right had occurred.155 A declaration had

real purpose in “vindicating the right and marking society’s disapproval
of its breach”.156 Vindication is aimed also at denouncing the decision-
making, making good the harm and deterring future breaches.157 Judicial
action to vindicate rights can never lack utility.

IX Conclusion
The freedom to roam in this article has been salutary, even liberating.
Stepping outside the well-worn contours of one’s discipline can be
invigorating. That said, persons who have been immersed in the law for
decades cannot shrug off with ease the pedagogy and doctrine that have
shaped their habits of thought. This article has navigated the highways of
judicial review and only occasionally detoured down the byways. Judicial
review is essentially an uncomplicated forensic exercise that speaks to
the need for fairness and legality. Robin Cooke’s struggle for simplicity
in administrative law is a worthy and laudable goal.158 Pedagogy and
doctrine, at times, must sit on the side lines if the courts are to achieve
their lofty purpose as guardians of the rule of law. Always, the issue
in judicial review returns to Lord Donaldson’s question: “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.”159 Law students might take heart that judicial review is not as
arcane, remote and mysterious as some might have them believe.

155 Vogel v Attorney-General [2013] NZCA 545.

156 At [84]. See also Taunoa v Attorney-General, above n 153, at [255], [259],
[300].
157 Taunoa v Attorney-General, above n 153, at [255], [259], [300].
158 Sir Robin Cooke, above n 2.
159 R v Panel on Take-overs and Mergers, ex parte Guinness plc, above n 38, at
160.