Public and private legal rights: practical applications, key implications

Judicial reviews are frequently before the court. In 2017, some twenty judicial reviews were decided by the High Court (on our rough assessment).

Bisley Randal Crawford

Often, those reviews will be brought by a private person seeking to obtain some private advantage. That, in turn, will frequently impact upon the private rights acquired by another person pursuant to the impugned decision.

For example, in Ririnui v Landcorp Farming Ltd [2016] NZSC 62; 1 NZLR 1056, the Supreme Court, by a majority:

  • found that Landcorp Farming Limited’s (Landcorp) decision to sell a block of land was a wrongful exercise of a public power, as was the decision of Landcorp’s shareholding Ministers and the Minister for Treaty of Waitangi Negotiations not to intervene in the tender process that led to the sale;
  • nonetheless declined to grant relief that could lead to the sale and purchase agreement between Landcorp and a third party, Wheyland Farming Limited (Wheyland), being set aside.

Ririnui is a relatively recent example of the sorts of cases in which courts in New Zealand and overseas have been asked, in the context of a judicial review application, to grant relief that would affect private law rights. The clash between public law remedies and private law rights, exemplified by such cases, gives rise to questions of practical concern to parties transacting with public bodies.

For example, what is the relevance of contractual rights of third parties to relief in judicial review proceedings? Generally speaking:

  • A third party whose interests are affected by a judicial review application will have the right to be heard in relation to the claim (Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 at 34).
  • The availability of relief in judicial review by way of setting aside a contract entered into with a public body does not depend on whether there is an orthodox contract law basis for doing so; where the contracting public body has capacity to make the contract, the fundamental issue is the existence and extent of prejudice to third parties (Ririnui, paras [119] to [130]).
  • Where an innocent third party will suffer substantial losses as the result of a contract being set aside, that is likely to be decisive when the court considers relief (Ririnui, para [132]).

On the flip side, can public law concepts be deployed to the advantage of contracting parties?

In Ririnui, there was a conflict between Wheyland’s interests, as a party to the sale and purchase agreement, and the interests that the applicant, a stranger to the agreement, sought to protect through judicial review. The prejudice to Wheyland as an innocent third party was a key consideration for the Court, and the conflict was ultimately decided in Wheyland’s favour.

What about the situation in which one of the parties to the contract (either the contracting public body or the counterparty) regrets the deal? In some cases, parties have sought to use public law concepts as a defence to private law claims, or to improve their position by way of judicial review. In those cases, different considerations may influence the court’s decision.

Furthermore, what remedies are available to parties whose rights have been adversely affected? In either of the scenarios raised above, there is a further question as to whether, and how, parties can recover any losses following a successful judicial review.

In our forthcoming ADLS seminar entitled “Private and Public Legal Rights: Practical Applications, Key Implications”, chaired by the Hon Justice Asher, the authors will consider the interplay of public and private rights both generally and by way of example in relation to reviewable decisions by councils under the Resource Management Act 1991.

These interesting questions are relevant when advising or representing private or public parties in judicial reviews, and as a lens through which to examine the wider relationship between public law and private law.

For more information or to register for this event, scheduled for Thursday 18 October 2018, click here. Please register by Thursday 11 October 2018 to secure your place.

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