The Functional Convergence of Appeal and Judicial Review

• Published in: New Zealand law review no. 1; pp. 157 - 187
• Main Author: Ferrere, MB Rodriguez
• Format: Journal Article
• Language: English
• Published: Legal Research Foundation Inc 01-01-2016
• Subjects: ADMINISTRATIVE LAW; ADMINISTRATIVE PROCEDURE; ADMINISTRATIVE TRIBUNALS; Appellate procedure; Judicial discretion; JUDICIAL REVIEW; Law and fact; NEW ZEALAND
• ISSN: 1173-5864

"Judicial review is not the same as appeal" is one of the more common epithets found in administrative law in New Zealand. As neat as it is, however, it is not truly reflective of reality. Often, when considering the determinations of administrative decisionmakers, a court will find
itself engaging in the same task in judicial review proceedings as it does in certain types of appeal. Despite that functional similarity, however, courts have insisted that the distinction between the procedures is a valid one. In this article, I argue that the epithet above is a significant
overstatement, and that in administrative law, there is no functional distinction between review and two types of appeal: those on questions of law and against exercises of discretion. In making my argument, I will first outline the different procedures, before showing that the rationales
for differentiating them from one another are no longer sufficient and that the distinction is no longer desirable.