Amenability and standing

What is JR?

Courts ensuring decision-makers act within the four corners of their power

Two principles JR upholds

Rule of law and parliamentary supremacy

Source of JR

Mostly common law (some statute)

JR focuses on…

Process, not the substance of the decision

JR exam structure

1 Amenability; 2 Standing; 3 Grounds; 4 Relief

Two parts of amenability

Theoretical amenability and justiciability

Three heads of review

Illegality, procedural impropriety, unreasonableness

How long on theoretical amenability?

One sentence – almost everything qualifies

JRPA 2016 s 5

Statutory power – conferred by an Act or a body corporate's constitution/rules/bylaws

JRPA 2016 s 4

Statutory power of decision – affects someone's rights, powers, privileges

Decision made by an agent?

Still a statutory power of decision (Reckitt & Colman)

Prerogative reviewable?

Yes – CCSU

Third source reviewable?

Yes – Quake Outcasts

Central question for amenability

Effect of the power, not its source

Two justiciability requirements

Public in nature; not an issue court can't/shouldn't resolve

How to test "public"

How many people affected, and to what extent

Bayline v Secretary of Education [2007] NZAR 747 – facts

Bus operator lost tender to Bethlehem

Bayline – held

Low-level contracting decision with no public element → not justiciable

Bayline – rule

Contract decisions need a public law element beyond the power to contract

Hopper v North Shore Aero Club [2007] NZAR 354 – facts

Hopper refused permission to land at aero club

Hopper – held

Private body, one individual, not quasi-public → not justiciable

Curtis v Minister of Defence [2002] 2 NZLR 744 – facts

Disbanding RNZAF air combat wing

Curtis – held

High policy, no satisfactory legal yardstick → non-justiciable

Curtis – accountability

Government accountable at the ballot box instead

Ngāti Whātua Ōrākei v AG – justiciability

Tikanga rights can be a legal yardstick; future legislation doesn't make issue non-justiciable

Smith v AG [2024] NZCA 692 – justiciability

Not the court's role to review legislation

Standing test

Sufficient connection

Modern approach to standing

Liberal – exceptions make it much easier

Finnigan v NZRFU [1985] 2 NZLR 159 – facts

Club player challenged All Blacks tour to apartheid South Africa

Finnigan – held

Standing: very important national issue; unlikely anyone else would sue

Great Christchurch Buildings Trust [2013] NZLR 230 – facts

Trust challenged partial demolition of Christchurch Cathedral

GCBT – held

Standing: legitimate, honest interest; cathedral has quasi-civic public significance

GCBT – takeaway

Public interest decisions give standing if plaintiff has honest interest