New Zealand Case Law: Decisions & Judgments

Topic

Fettering of discretion

Legal area

Court

6 May 2022

WELLINGTON INTERNATIONAL AIRPORT LIMITED v WAKA KOTAHI [2022] NZHC 954

Citation

[2022] NZHC 954
Court

High Court

Applicant failed to establish the statutory threshold that an interim order was necessary to preserve its position; even if threshold were met, the Court would decline relief in the exercise of its discretion because the public interest in promptly implementing a safety-improving, policy-consistent project outweighed speculative and unquantified delay and economic harms, and the applicant's substantive review case was not shown to be sufficiently strong to justify halting construction.
23 Jul 2021

TAYLOR v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT [2021] NZCA 329

Citation

[2021] NZCA 329
Court

Court of Appeal

The Court dismissed the appeal: the operative October 2016 decision was properly reviewable and was lawfully made because the Ministry considered relevant matters, did not fetter its discretion, and appropriately applied the 15% methodology endorsed by prior judicial decisions; the September 2016 decision was spent and cannot be re‑litigated; the MAP/Powerswitch internal guidance is not binding; although a telephone hearing was undesirable for an unrepresented litigant, no miscarriage of justice resulted such as to warrant setting aside the decision.
7 Oct 2020

NEW CONSERVATIVE v TELEVISION NEW ZEALAND LIMITED [2020] NZHC 2650

Citation

[2020] NZHC 2650
Court

High Court

Applicants failed to establish a prima facie case for mandatory interim relief: TVNZ's revised selection criteria were not unreasonable; TVNZ properly considered Māori electorate representation; no evidence that referenda made New Conservative's exclusion a relevant consideration; no unlawful fettering of discretion; poll margin of error cannot be added to inflate results; accordingly interim mandatory relief to require invitation of Mr Baker was declined.
5 May 2020

COROMANDEL WATCHDOG OF HAURAKI (INCORPORATED) v MINISTER OF FINANCE and ANOR [2020] NZHC 888

Citation

[2020] NZHC 888
Court

High Court

Documents considered by the earlier Minister and materials from the prior judicial review are irrelevant to the validity of the decision by Ministers Robertson and Parker because the later decision is to be judged on the information before those Ministers; Crown Law advice is protected by legal professional privilege and there has been no waiver by the Attorney‑General; consequently the requested discovery is not necessary for the Court to fairly and effectively adjudicate and need not be disclosed.
22 Jul 2019

TAYLOR v THE SOCIAL SECURITY APPEAL AUTHORITY [2019] NZHC 1718

Citation

[2019] NZHC 1718
Court

High Court

Claims against the Minister, Consumer NZ and the Ombudsman are struck out: Minister and Consumer NZ because no reviewable exercise of public power or reasonable prospect on pleaded facts; Ombudsman because statutory immunity in ss 25 and 26 bars judicial review of decision not to investigate. Claims against the Authority that collaterally attack its April 2015 decision are struck out as abuse of process; remaining challenges to Authority pre-hearing direction and to the Ministry (notably alleged fettering by applying a 15% methodology without reconsideration) are not struck out and may procee…
16 Apr 2019

Smith v The Attorney-General [2019] NZHC 835

Citation

[2019] NZAR 767
Court

High Court

The 11 November 2014 email direction pausing temporary release was lawful as a short, context‑specific deferral; however the subsequent temporary release circulars (2014/02 series) and the RTW circulars (2014/03 series) unlawfully fettered delegated discretion and were ultra vires to the extent they excluded statutorily eligible classes or directed that particular classes 'must not be approved'; the individual RTW decision declining Taylor on 11 December 2014 was lawfully made on an individualised assessment and is not set aside; declarations of invalidity are granted confined to the unlawful…
18 Jul 2017

Smith v The Attorney-General on behalf of The Department of Corrections [2017] NZHC 1647

Citation

[2017] NZAR 1094
Court

High Court

An application to strike out a judicial review on standing will succeed only if both personal and public interest standing claims are so untenable that they cannot possibly succeed; on the pleaded facts the applicant was sufficiently affected and the merits of the challenge to the interim temporary release guidelines were arguable, so the strike-out was declined.
22 Mar 2017

FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2017] NZHC 525

Citation

[2017] NZAR 521
Court

High Court

Section 28A authorises the Chief Ombudsman to consider public interest and risks of proliferation/confusion to protect the integrity of the Office; the established policy is not inconsistent with the statutory purpose provided it allows exceptions; on the facts the refusal to permit FSCL to use the name was not unreasonable and judicial review fails.
9 Apr 2014

JOHN PATRICK GREEN, BRIAN HUGHES, BARRY RATTRAY, WAYNE MCLAUGHLIN AND THE ESTATE OF MRS W MCLAUGHLIN V RACING INTEGRITY UNIT LIMITED CA319/2013 [2014] NZCA 133

Citation

[2014] NZAR 623
Court

Court of Appeal

There was no unambiguous, settled practice or promise by HRNZ/RIU to consult industry about approving laboratories or new testing regimes; there was no reasonable causal reliance by the connections on any alleged undertaking; even if an undertaking existed the court would not grant substantive relief that would allow a horse to retain a placing won while racing with a prohibited substance; the RIU did exercise prosecutorial discretion and did not fetter it, so the judicial review grounds failed and the appeal was dismissed.
12 Apr 2013

WEAL V LEGAL SERVICES COMMISSIONER HC WN CIV-2012-485-002602

Citation

openlaw-1f3043e4_5f44_49df_839e_aeded33fa261.pdf
Court

High Court

The Tribunal was wrong to describe the Commissioner's policy as a lawful fetter on statutory discretion, but the Commissioner had in fact considered and exercised discretion not to increase the hourly rate in this case; accordingly the appeal is dismissed.