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This book is only available in PDF format

Published: 19 July 2010
Pages: 77

Judicial review is the review by a judge of the High Court of a –

  • decision;
  • proposed decision;
  • refusal to exercise a power of decision.

To determine whether that decision or action is unauthorised or invalid.  It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
The purpose of judicial review is two-fold:

  1. the definition of principles to govern public administration by the Executive;  and
  2. the safeguarding of individual interests against illegal or unreasonable administrative action, or from administrative action taken without following proper procedures.

Judicial review is not the same as an appeal.  An appeal exists when a statute provides that a decision can be appealed to a court.  In an appeal a judge will more clearly review the merits of the earlier decision.  There is usually no “deference” accorded to the decision being appealed from.  Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision.  As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere.

In judicial review proceedings the documents are critical.  The court decides the matter by examining all the paper generated within the relevant organisation and put in evidence by the parties.
At the conclusion of the case, a judge may –

  • make declarations about the way a decision was made or action taken (eg declare that certain things that ought to have been done were not done, or that some matter taken into account by the decision-maker was not relevant);
  • set aside the decision as unlawful (and thus restoring the position prior to the decision having been made);
  • direct the person who made the decision or took the action to reconsider and re-determine the matter, and may give directions as to how this should be done (eg taking into account certain relevant matters).

Relief, or the remedy, is entirely discretionary.

View the unabridged introduction here.

Francis Cooke QC  
Francis Cooke KC
Wellington
 		  

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