Contents

Chapter 2
Judicial review

Content of the draft Bill

2.17As clause 3 of the draft Bill notes, the purpose of the Act would be to re-enact Part 1 of the 1972 Amendment Act, but in modern drafting style: “The reorganisation of those provisions and the changes made to the style and language are not intended to alter the interpretation or effect of those provisions as they appear in the new draft.”21

2.18There was a consistent theme in submissions that a substantive review of the judicial review laws needs to be tackled in New Zealand. This would require a separate Law Commission reference (or Ministry of Justice consideration) and, given that previous preliminary efforts have proved highly controversial, would be a difficult enterprise.

2.19As the Commission does not at this stage know whether there will in fact be a revised judicial review statute, we make no formal recommendations regarding the drafting particulars. We do, however, set out below the views of submitters in response to the draft Bill, and the Commission’s thoughts on these.

Title

2.20The Senior Courts’ judges submitted that the title of the draft Bill – the Judicial Review (Statutory Powers) Procedure Bill – suggests the procedure is confined to review of statutory powers only, and said the title should be amended to make it clear that the law is not being changed. We would have no difficulty with the draft Bill being renamed, but that is a matter that will depend on the ultimate structure of new courts legislation. We note that the reference to “Statutory Powers” in the title of the draft Bill was taken directly from the Part 1 heading of the 1972 Amendment Act, and the legislation sets out the procedure for the review of statutory powers as that term is defined.

Clause 3(2)

2.21The Law Society submitted that clause 3(2) would be clearer if it stated:

The reorganisation of those provisions and the changes made to their style and language in this Act are not intended to alter the interpretation or effect of those provisions as they appeared in the Judicature Amendment Act 1972.

2.22The Commission regards this as a matter of drafting style to be considered by Parliamentary Counsel.

Clause 4

2.23The Law Society said the definition of “person” in clause 4 omits references to a corporation sole and a body of persons whether incorporated or not. It said these should be included to avoid confusion about whether the law has been changed. We agree that, as no change to the definition of “person” is intended, it would be clearer to expressly include these references.

Clause 7

2.24The Law Society submitted that clause 7(2) is new and appears to be unnecessary. It noted that the clause makes reference to certain provisions in the Employment Relations Act 2000, but omits reference to other provisions of that Act that it said appear to be relevant, for example sections 184, 193, 194 and 194A.

2.25We do not agree that clause 7(2) is unnecessary, as it picks up the content of section 3A of the 1972 Amendment Act, and clarifies the jurisdiction of the Employment Court, High Court and Court of Appeal, without making any substantive change to the law. The clause states that the provisions of the draft Bill are subject to the provisions of the Employment Relations Act 2000 relating to the jurisdiction of the Employment Court and High Court in respect of applications for review, and then refers to particular sections. It is not therefore necessary for the clause to identify every relevant section of the Employment Relations Act.

Clause 8

2.26The Law Society and the Senior Courts’ judges said clause 8(3) of the draft Bill should be redrafted to reflect accurately section 9(3) of the 1972 Amendment Act.

2.27Section 9(3) of the 1972 Amendment Act provides:

It shall not be necessary for the statement of claim to specify the proceedings referred to in section 4(1) of this Act in which the claim would have been made before the commencement of this Part of this Act.

2.28Section 4(1) of the 1972 Amendment Act states:

On an application which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application, by order grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.

2.29Clause 8(3) of the draft Bill provides:

The statement of claim need not state that any of the following relief is sought:
(a) Mandamus:
(b) Prohibition:
(c) Certiorari:
(d) Declaration:
(e) Injunction.

2.30The Law Society said clause 8(3) changes the meaning of section 9(3) of the 1972 Amendment Act. It said whereas section 9(3) provides that it is not necessary to specify which of the former “proceedings” would have been taken, clause 8(3) focuses on the relief that is sought. It said this appears inconsistent with Rule 5.27 of the High Court Rules, which requires relief to be specified in the statement of claim. We agree clause 8(3) of the draft Bill focuses on the relief sought, but we think it merely clarifies, rather than changes, the substance of section 9(3) of the 1972 Amendment Act. We also do not think it is inconsistent with Rule 5.27, as the draft clause says it is not necessary to specify that any relief is sought in the nature of the relief in the specified list, however it would still be necessary to state the relief sought, as discussed below.

2.31The Senior Courts’ judges said section 9(2) and (7) of the 1972 Amendment Act should be retained in the draft Bill. The Law Society agreed. It said section 9(2) should be included, “as it helpfully summarises essential components of a judicial review statement of claim: facts, grounds and relief.” With regard to section 9(7), it said the provision was important, as it establishes that the 1972 Amendment Act “is not a stand-alone code, but that applications for review are also subject to the ordinary rules”.

2.32Section 9(2) of the 1972 Amendment Act provides:

The statement of claim [for review] shall—
(a) State the facts on which the applicant bases his claim to relief:
(b) State the grounds on which the applicant seeks relief:
(c) State the relief sought.

2.33Section 9(7) provides:

Subject to this Part of this Act, the procedure in respect of any application for review shall be in accordance with rules of Court.

2.34Clause 8(1) of the draft Bill states that an application for judicial review must be commenced by filing in the High Court a statement of claim and a notice of proceeding. Clause 8(2) says that Part 5 of the High Court Rules applies in relation to the commencement and filing of an application as if references to a plaintiff were references to an applicant and references to a defendant were references to a respondent.

2.35High Court Rule 5.26 provides that a statement of claim must show the general nature of the plaintiff’s claim to the relief sought, and must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action.” Rule 5.27 provides that a statement of claim must specify the relief or remedy sought. In addition, Rule 4.1 provides that “the practice and procedure of the court in all civil proceedings and interlocutory applications is regulated by these rules”. In our view, these Rules essentially cover the matters dealt with in section 9(2) and (7) of the 1972 Amendment Act.

Clause 13

2.36The Law Society said clause 13(1) refers to “lawyers”, where it would be more appropriate to refer to “counsel” (as in section 10(1) of the 1972 Amendment Act and comparable provisions in the High Court Rules). We regard this as a drafting matter to be considered by Parliamentary Counsel. We note though that in light of the Lawyers and Conveyancers Act 2006, there is a move now to refer to “lawyer” in legislation.

Clause 14

2.37The Bar Association submitted clause 14(2)(e) of the draft Bill effects a small change to the current section 10(2)(e) in that it omits the words “unless the judge…is satisfied that the party’s refusal was reasonable in all the circumstances…” and replaces them with “(subject to the direction of the Judge hearing the application)”. It said the draft seems to give a wider discretion to the judge who finally determines the application for review, and that it is unclear whether this was intended. We confirm that this was not intended, and that the clause will be further considered by Parliamentary Counsel to ensure no substantive change is made to a judge’s powers under section 10(2)(e) of the 1972 Amendment Act.

2.38The Law Society said in clauses 14(2)(a) and 14(2)(e) the words “at the hearing” are unnecessary and potentially limiting. It said, moreover, that issues are frequently determined after the hearing, if the judge reserves his or her judgment.

2.39The Law Society also said in clause 14(2)(b)(ii) the word “joined” should be changed to “added”, as under the Rules, parties, rather than the names of parties, are joined (Rules 4.55 and 4.56).

2.40Although it is correct that issues may be determined after the hearing, for example in relation to costs or the implementation of orders, clause 14 only deals with orders and directions before the hearing of an application, so we do not think there is any need for alteration to subclauses (2)(a) and 2(e). Drafting terminology will be discussed with Parliamentary Counsel.

Clause 15

2.41The Law Society submitted that clause 15 should refer to an “interlocutory order”, rather than an “interim order” (as per section 11 of the 1972 Amendment Act). We think “interim order” better captures the nature of the orders referred to in clause 15, and preserves the terminology in existing section 8 of the 1972 Amendment Act. In our view, no change is needed to clause 15 if the wording in clause 20 is altered, as discussed below.

Clause 16

2.42The Bar Association said clause 16(3) of the draft Bill, which states that the section enabling the Court to grant the relief the applicant would be entitled to in proceedings for mandamus, prohibition or certiorari, or a declaration or an injunction, applies even if the person who has exercised, or is proposing to exercise, a statutory power to which the application relates was not under any duty to act judicially, omits the following qualifying words that currently appear in section 4(2A) of the 1972 Amendment Act:

But this subsection shall not be construed to enlarge or modify the grounds on which the Court may treat an applicant as being entitled to an order of or in the nature of certiorari or prohibition under the foregoing provisions of this section.

2.43The Bar Association said it is unclear whether this was intended, and suggested it should be clarified.

2.44The Commission finds it difficult to see how the subsection could be construed to enlarge or modify the grounds on which the Court may grant relief. The view of Parliamentary Counsel, which the Commission agrees with, is that the omitted words are unnecessary. If there is any doubt about that, however, the omitted words should be included.

Clause 20(1)

2.45The Bar Association noted that clause 20(1) of the draft Bill states that any party who is dissatisfied with any interim or final order made in respect of an application may appeal to the Court of Appeal, whereas section 11 of the 1972 Amendment Act provides a right of appeal for “any interlocutory or final order…”. The Bar Association said an interlocutory order is wide enough to include an interim order, but that an interim order may not include all interlocutory orders, for example orders made under clause 14 of the draft Bill. In the Bar Association’s view, interim orders would likely be interpreted as limited to interim orders made under clause 15 of the draft Bill, rather than including the orders provided for under clause 14. It submitted that, given the potential importance of some matters dealt with by the High Court by way of interlocutory order in judicial review proceedings, this appeal right should not be restricted, and that the word “interim” in draft clause 20(1) should be changed to “interlocutory”.

2.46We agree with the Bar Association that interlocutory orders need to be included in the appeal provision to ensure no substantive change is made to the current 1972 Amendment Act.

Clause 23

2.47The Law Society said the transitional provision refers to the 1972 Amendment Act continuing to apply to applications filed under that Act, which are “pending or in progress”. It said those latter words were unnecessary, providing that the application is filed under the 1972 Act. While that may be strictly correct, we think there is merit in making the position clear in any new legislation.

R5 The Judicature Amendment Act 1972 should be redrafted in modern language and enacted as a standalone Act, or, if R1 is not accepted, as part of a new Senior Courts Act.

21Clause 3(2).