New Zealand 1852 Constitution (reviewed 2014) - Page 7 of 42

Table of Contents

Part 1. Single procedure for the judicial review of the exercise of or failure to exercise a statutory power

2. Relation to Part 1 of principal Act and commencement of this Part

This Part shall be deemed part of Part 1 of the principal Act.
This Part shall come into force on 1 January 1973.

3. Interpretation

In this Part, unless the context otherwise requires,—

application for review means an application under subsection (1) of section 4
decision includes a determination or order
licence includes any permit, warrant, authorisation, registration, certificate, approval, or similar form of authority required by law
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person includes a corporation sole, and also a body of persons whether incorporated or not; and, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power of decision, includes a District Court, the Compensation Court, the Maori Land Court, and the Maori Appellate Court
statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate—

to make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or

to exercise a statutory power of decision; or

to require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or

to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or

to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person

statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—

the rights, powers, privileges, immunities, duties, or liabilities of any person; or

the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether he is legally entitled to it or not.

3A. Jurisdiction of Employment Court

This Part is 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 or proceedings for a writ or order of, or in the nature of, mandamus, prohibition, certiorari, or for a declaration or injunction against any body constituted by, or any person acting pursuant to, the Employment Relations Act 2000.

4. Application for review

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 1 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.
Where on an application for review the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the court may, instead of making such a declaration, set aside the decision.
Notwithstanding any rule of law to the contrary, it shall not be a bar to the grant of relief in proceedings for a writ or an order of or in the nature of certiorari or prohibition, or to the grant of relief on an application for review, that the person who has exercised, or is proposing to exercise, a statutory power was not under a duty to act judicially; 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.
Where in any of the proceedings referred to in subsection (1) the court had, before the commencement of this Part, a discretion to refuse to grant relief on any grounds, it shall have the like discretion, on like grounds, to refuse to grant any relief on an application for review.
Subsection (3) shall not apply to the discretion of the court, before the commencement of this Part, to refuse to grant relief in any of the said proceedings on the ground that the relief should have been sought in any other of the said proceedings.
Without limiting the generality of the foregoing provisions of this section, on an application for review in relation to the exercise, refusal to exercise, or purported exercise of a statutory power of decision the court if it is satisfied that the applicant is entitled to relief under subsection (1), may, in addition to or instead of granting any other relief under the foregoing provisions of this section, direct any person whose act or omission is the subject matter of the application to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of any matter to which the application relates. In giving any such direction the court shall—
1. advise the person of its reasons for so doing; and
2. give to him such directions as it thinks just as to the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
If the court gives a direction under subsection (5) it may make any order that it could make by way of interim order under section 8, and that section shall apply accordingly, so far as it is applicable and with all necessary modifications.
Where any matter is referred back to any person under subsection (5), that person shall have jurisdiction to reconsider and determine the matter in accordance with the court’s direction notwithstanding anything in any other enactment.
Where any matter is referred back to any person under subsection (5), the act or omission that is to be reconsidered shall, subject to any interim order made by the court under subsection (5A), continue to have effect according to its tenor unless and until it is revoked or amended by that person.
In reconsidering any matter referred back to him under subsection (5) the person to whom it is so referred shall have regard to the court’s reasons for giving the direction and to the court’s directions.

5. Defects in form, or technical irregularities

On an application for review in relation to a statutory power of decision, where the sole ground of relief established is a defect in form or a technical irregularity, if the court finds that no substantial wrong or miscarriage of justice has occurred, it may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding the defect or irregularity, to have effect from such time and on such terms as the court thinks fit.

6. Disposal of proceedings for mandamus, prohibition, or certiorari

Where proceedings are commenced for a writ or order of or in the nature of mandamus, prohibition, or certiorari, in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, the proceedings shall be treated and disposed of as if they were an application for review.

7. Disposal of proceedings for declaration or injunction

Where proceedings are commenced for a declaration or injunction, or both, whether with or without a claim for other relief, and the exercise, refusal to exercise, or proposed or purported exercise of a statutory power is an issue in the proceedings, the court on the application of any party to the proceedings may, if it considers it appropriate, direct that the proceedings be treated and disposed of, so far as they relate to that issue, as if they were an application for review.

8. Interim orders

Subject to subsection (2), at any time before the final determination of an application for review, and on the application of any party, the court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
1. prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:
2. prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:
3. declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.
Where the Crown is the respondent (or one of the respondents) to the application for review the court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b); but, instead, in any such case the court may, by interim order,—
1. declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:
2. declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.
Any order under subsection (1) or subsection (2) may be made subject to such terms and conditions as the court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the court may specify.

9. Procedure

An application for review shall be made by motion accompanied by a statement of claim.
The statement of claim shall—
1. state the facts on which the applicant bases his claim to relief:
2. state the grounds on which the applicant seeks relief:
3. state the relief sought.
It shall not be necessary for the statement of claim to specify the proceedings referred to in section 4(1) in which the claim would have been made before the commencement of this Part.
The person whose act or omission is the subject matter of the application for review, and, subject to any direction given by a Judge under section 10, every party to the proceedings (if any) in which any decision to which the application relates was made, shall be cited as a respondent.
For the purposes of subsection (4), where the act or omission is that of a Judge, Registrar, or presiding officer of any court or tribunal,—
1. that court or tribunal, and not that Judge, Registrar, or presiding officer, shall be cited as a respondent; but
2. that Judge, Registrar, or presiding officer may file, on behalf of that court or tribunal, a statement of defence to the statement of claim.
For the purposes of subsection (4), where the act or omission is that of any 2 or more persons acting together under a collective title, they shall be cited by their collective title.
Subject to any direction given by a Judge under section 10, every respondent to the application for review shall file a statement of his defence to the statement of claim.
Subject to this Part, the procedure in respect of any application for review shall be in accordance with rules of court.

10. Powers of Judge to call conference and give directions

For the purpose of ensuring that any application or intended application for review may be determined in a convenient and expeditious manner, and that all matters in dispute may be effectively and completely determined, a Judge may at any time, either on the application of any party or intended party or without any such application, and on such terms as he thinks fit, direct the holding of a conference of parties or intended parties or their counsel presided over by a Judge.
At any such conference the Judge presiding may—
1. settle the issues to be determined:
2. direct what persons shall be cited, or need not be cited, as respondents to the application for review, or direct that the name of any party be added or struck out:
3. direct what parties shall be served:
4. direct by whom and within what time any statement of defence shall be filed:
5. require any party to make admissions in respect of questions of fact; and, if that party refuses to make an admission in respect of any such question, that party shall be liable to bear the costs of proving that question, unless the Judge by whom the application for review is finally determined is satisfied that the party’s refusal was reasonable in all the circumstances, and accordingly orders otherwise in respect of those costs:
6. fix a time by which any affidavits or other documents shall be filed:
7. fix a time and place for the hearing of the application for review:
8. require further or better particulars of any facts, or of the grounds for relief, or of the relief sought, or of the grounds of defence, or of any other circumstances connected with the application for review:
9. require any party to make discovery of documents, or permit any party to administer interrogatories:
10. in the case of an application for review of a decision made in the exercise of a statutory power of decision, determine whether the whole or any part of the record of the proceedings in which the decision was made should be filed in court, and give such directions as he thinks fit as to its filing:
11. exercise any powers of direction or appointment vested in the court or a Judge by its rules of court in respect of originating applications:
12. give such consequential directions as may be necessary.
Notwithstanding any of the foregoing provisions of this section, a Judge may, at any time before the hearing of an application for review has been commenced, exercise any of the powers specified in subsection (2) without holding a conference under subsection (1).

11. Appeals

Any party to an application for review who is dissatisfied with any final or interlocutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the principal Act shall apply to any such appeal.

13. This Part to bind the Crown

Subject to section 14, this Part shall bind the Crown.

14. Application of Crown Proceedings Act 1950

Amendment(s) incorporated in the Act(s).
In its application to the Crown, this Part shall be read subject to the Crown Proceedings Act 1950, as amended by subsection (1).

16. References in enactments

Subject to sections 14 and 15, every reference to any enactment (other than this Act), or in any regulation, to any of the proceedings referred to in subsection (1) of section 4 shall hereafter, unless the context otherwise requires, be read as including a reference to an application for review.