The trouble with labels in judicial review

The difficulty with applying labels to various flaws giving rise to the exercise of the Court’s supervisory jurisdiction on review, and with judicial reasoning which follows the labels applied by parties in their pleadings, is that it creates difficulties in drawing principled conclusions. In Deliu v Hong and Legal Complaints Review Officer [2012] NZAR 209, Mr Hong, a solicitor, had sent a letter to Mr Deliu, a barrister, to which Mr Deliu took offence, prompting him to lay a complaint with the Law Society which, in turn, prompted Mr Hong to complain to the Law Society about Mr Deliu’s correspondence to him, from which there ensued a period of months during which the practitioners exchanged numerous insults and threats in correspondence to each other. The Standards Committee, in considering Mr Deliu’s complaint, saw the correspondence from both sides as effectively evening the score as between them such that the subject matter of the complaint was regarded as trivial and the complaint frivolous and vexatious. The review officer upheld the decision on the basis that it was a decision that was open to the Standards Committee to make. That, it was found by Winkelmann J in the High Court, was an error of law because it was not consistent with the statutory scheme for review or with the review officer’s guidelines.

The Court found the review officer to have proceeded upon the mistaken basis that Mr Deliu had not immediately responded to Mr Hong’s conduct by lodging a complaint; a clear example of a mistake of fact. This was, however, referred to by the Judge as giving rise to an error of law. The Judge went on to find that the Standards Committee and the review officer had wrongly applied the statutory provisions relating to trivial, frivolous or vexatious complaints; a straightforward example of an error of law. The Judge referred to this finding, however, as the Committee having failed to take into account a relevant consideration or having taken into account an irrelevant consideration. The ultimate result, in finding that Mr Hong’s conduct could not be described as trivial, nor the complaint frivolous or vexatious, was well founded but analysing multiple causes of action in accordance with the plaintiff’s sometimes imperfectly crafted pleadings can cause difficulties with the reasoning process.

Similarly, in InterPharma (NZ) Ltd v Commissioner of Patents [2012] NZAR 222, it was found that the Commissioner had acted wrongly in not having required the plaintiff (as patentee) to provide the necessary particulars of prior art when applying for an amendment to enlarge the scope of a patent. In this sense it was found that the Commissioner had not sought, and therefore did not take account of, all relevant considerations; historically an orthodox head of review. The error was described, however, as an error of law in the sense that a discretion was exercised without the necessary information.

While the logic in each decision is there, the sometimes cumbersome or inappropriate nature of judicial review labels and separate causes of action might best give way on occasions to the more straightforward notion that there has been a flaw; that something has miscarried in the decision or process below.

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One Comment

  1. Hi Paul, just read your note and agree with you. Frankly, having done hundreds of judicial review cases over the years, I have found labels are quite subjective. Something can be an error of law, but it can also be ultra vires (such as erroneously concluding jurisdiction). Heads of claim are quite often interchangeable. Oddly, in my view that is what makes judicial review fascinating as an area to practice in. The real skill is finding that “thing” that is just wrong. Once you have that, the name you give it often simply does not matter. The devil is not in the details in other words. Rather, it is the art of persuading a Judge that something is just off. Once you do that, a remedy followeth! In this case, I crafted the pleadings this way with the scope of trying to show multiple errors to virtually guarantee relief. I could have pleaded them differently, but tactically decided this was the best way forward. I do think it would be better to plead innominate grounds, but that is not the current practice so as such we must box ourselves into labels with enough room to allow for advocacy on the day depending on the judicial whims. Anyway, interesting topic, one I have often thought about.


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