29 April 2005

Discount Brands - a C+ for the Supreme Court

Westfield (New Zealand) Limited v North Shore City Council I've reflected more on the Supreme Court's decision. I give them a C+: - The idea of more scrutiny for notification decisions is okay because it is a gate-keeper decision otherwise not subject to checks and balances. The decision is essentially operational and doesn’t involve any policy content. However, it still needs some deference because it is question of judgment for an “expert” decision‑maker/tribunal. - However, justifying a high degree of “correctness” on the use of the phase “if the consent authority is satisfied” is spurious. Rather than “satisfied” being the “strongest decisional verb”, its history in administrative law has been based on it being one of the more “subjective”, not objective”, types of decisions (cf “in the opinion of the Minister”). - It is artificial and unhelpful to separate the notification into 2 decisions – first on sufficiency of evidence and secondly the actual decision itself. - The “test” of adequacy or sufficiency is largely unhelpful and extends beyond established grounds for reviewing factual errors (no evidence to support factual conclusion or (genuine) mistake of fact). The test simply restates a truism that the decision-maker have sufficient evidence but, in my view, the decision fails to go on how the supervising court should approach (non-)compliance with this standard. Only Blanchard J suggests the idea that the Court might consider whether the Council “could reasonably be satisfied” that the information was adequate. Others seems to implicitly suggest that judicial intervention could be justified whenever there is insufficient evidence. - In particular, the Court fails to consider functional consequences of reviewing adequacy; effectively confers right of appeal against the merits of non-notification. Any time an aggrieved person considers the Council got it wrong, they can ex post facto find (or create?) evidence which casts into doubt the Council’s factual conclusion – thereby arguing the Council didn’t have sufficient or adequate evidence before them. There is no finality for such decisions. In any event, most of the relevant considerations are better characterised as factual assessments, rather than factual findings, where the decision maker exercise their expert judgment about these matters. - The nub of the case (and, incidentally, the Videbeck case which started this sufficiency of evidence approach) seems to be more defects in logic or reason. That is, the relevant decision-makers make to demonstrate the basis on which they made their decision, including rejecting the views of officers or other experts. In my view, a more workable approach would be to simply examine whether the decision-maker’s decision (ie, the substantive decision not to notify) was reasonable (in a simpliciter sense, not the more deferential Wednesbury/Woolworths test). This would capture the – I think, generally accepted – deficiencies in this case but provide a better and more predictable standard for other cases as well.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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