Ipsofactoj.com: International Cases [2005] Part 2 Case 8 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Goulding

- vs -

Ministry of Fisheries

(The Chief Executive)

KEITH J

BLANCHARD J

McGRATH J

24 OCTOBER 2003


Judgment

McGrath J

INTRODUCTION

  1. This appeal raises the question of whether a decision-maker can lawfully revoke an administrative decision and substitute one which is unfavourable or less favourable to an affected person, particularly when a decision has not been communicated to that person. Those who make decisions under statutory powers generally see a need for sufficient flexibility to allow revisiting of decisions from time to time. On the other hand revocation of decisions taken can create legal uncertainty, cause serious inconvenience to affected citizens, and on one view remove rights already conferred.

  2. In the present case a delegate of the chief executive of the Ministry of Fisheries (the respondent) decided on 9 April 1998 to grant the application of the appellants, who are marine farmers, for a marine farming permit under s67J of the Fisheries Act 1983 (the Act). Before the decision was communicated to the appellants or other interested persons further information came to the attention of the decision-maker, who subsequently decided to alter the decision and to decline the application. The High Court held that it was lawful for him to do so. The issue on appeal is whether the High Court’s decision was correct.

    BACKGROUND FACTS

  3. Establishment of a marine farm requires both a coastal permit and a marine farming permit. There is a reference to the respective statutory requirements in the judgment of this Court in Chief Executive of the Ministry of Fisheries v NZ Marine Farming Association Ltd: CA182/02 and 191/02, 25 September 2002, paras [1] and [2], which was heard immediately prior to the present appeal. The appellants obtained a coastal permit giving them resource consent under the Resource Management Act for a proposed marine farm at Waitata Bay in Pelorus Sound. An objector’s appeal to the Environment Court against the issue of the permit was resolved by a consent order, the effect of which was to reduce the area of the proposed marine farm from 3 hectares to 2.4 hectares. To establish their proposed marine farm the appellants also required a marine farming permit under the Act and on 23 September 1997 they applied to the Ministry for such a permit. The Ministry sought further material from the appellants and from the Marlborough District Council. A dive survey of the existing scallop population in the area was provided to the Ministry by the Council on 31 October 1997. That report, which had been prepared by First Wave Ltd, had been part of the material which the appellants had submitted to the Council in support of their coastal permit application.

  4. The Ministry identified members of the public who might have an interest in the application and, on 4 November 1997, it wrote to local iwi, dive clubs, power boat clubs, a local Ratepayers Association, the Marine Transport Association, and others. Each was invited to comment on any "undue adverse effect on fishing or the sustainability of the fishing resource" which they considered the proposed marine farm might have. One of those approached was the Marlborough-Nelson Marine Farm Permit Committee (the committee) which is an informal association of recreational fishing and diving groups that had been formed to provide views to the Ministry on marine farming permit applications in the region. The Ministry’s letter to the committee asked it to respond orally "by the Monday following your next meeting and in writing by the 20th of that month". The committee did not, however, do so.

  5. The power to determine the application was delegated to Dr Peter Todd, the policy manager of the Ministry of Fisheries at Nelson under s41 of the State Sector Act 1988. Within the Ministry an official, Ms Warren, proceeded to prepare an impact evaluation report for Dr Todd on the application.

  6. On 10 March 1998 the secretary of the committee, Mr. Williams, telephoned and spoke briefly with Ms Warren about scallop densities in Waitata Bay. He said he had lost, and only just found and read, the survey report of First Wave which had been sent to him. He expressed the view that it had inadequately reported scallop densities in the affected area. Mr. Williams told Ms Warren that Waitata Bay was a good scallop ground and that he knew that there were far more scallops in the area of the proposed farm than the First Wave dive survey report had indicated. Ms Warren arranged to send to Mr. Williams a further report which had been provided by the appellants on 5 January 1998. This report had been prepared by a Mr. Davidson and had found there to be more scallops in the area. Ms Warren asked for comments from the committee as soon as possible. Nothing further had been received by the Ministry by 17 March 1998 which was the date that Ms Warren completed her evaluation report for Ms Bonnington, another official in the Ministry at Nelson. In her report Ms Warren recorded Mr. Williams’ view that Waitata Bay was a good scallop area and that the part of it covered by the proposed farm contained more scallops than the First Wave report had suggested. She went on to refer to the reduction in the size of the original proposed farm which, she said, had mitigated any undue adverse effect its presence would have on commercial dredging activities in the area. It should follow, she added, that there should be no undue adverse effect from the proposed marine farm on dredging activities associated with recreational fishing in Waitata Bay.

  7. Ms Warren accordingly recommended as follows:

    I recommend that you forward this application to the Policy Manager for a decision to approve this application, taking the view that the proposed farm is unlikely to have an undue adverse effect on fishing activities, particularly for scallops, or the sustainability of any fisheries resource.

  8. Ms Bonnington then prepared a memorandum for Dr Todd, concerning the evaluation report and application, on 20 March 1998. The report and application file were attached. Dr Todd signed off this memorandum as "Granted" on 9 April. As it is the crucial document said by the appellants to evidence the making of a decision by a delegated officer approving the application we set it out below in its signed form:

    Memorandum

    To:

    From:

    Date:

    File Ref:

    Peter Todd, Policy Manager, Nelson

    Katrina Bonnington, Clerk (Aquaculture), Nelson

    20 March 1998

    C18-294, U941575

    Subject:

    IMPACT EVALUATION REPORT AND RECOMMENDATION FOR A MARINE FARMING PERMIT APPLICATION BY J R COWIN, R J CURTIS and J M GOULDING, WAITATA BAY

    Remarks:

    Applicant:

    Urgent For your review Reply ASAP Please Comment

    Jeffrey Ross Cowin, Robert John Curtis and James Maurice Goulding

    Coastal Permit Number:

    U941575

    Location:

    Size:

    Waitata Bay

    2.4 hectares

    Species:

    green mussel (Perna canaliculus), blue mussel (Mytilus galloprovincialis), scallop (Pecten novaezelandiae) and dredge oyster (Tiostrea chilensis)

    Duration:

    The duration of the coastal permit is 10 years commencing on the date of issue of the consent order and expiring on 15 September 2007.

    Attached is the application file, a map showing the location of the farm and the evaluation report and recommendation.

    The evaluation recommends that pursuant to Section 67J of the Fisheries Act 1983 you grant a Marine Farming Permit to Jeffrey Ross Cowin, Robert John Curtis and James Maurice Goulding for the purposes of farming green mussel (Perna canaliculus), blue mussel (Mytilus galloprovincialis), scallop (Pecten novaezelandiae) and dredge oyster (Tiostrea chilensis).

    Katrina Bonnington

    Clerk (Aquaculture)

    GRANTED/NOT GRANTED

    "P. Todd"

    Peter Todd

    Policy Manager

    (Pursuant to Section 67J of the Fisheries Act 1983 consent is hereby given in exercise of powers delegated to me under Section 88 of the State Sector Act 1988).

    Dated at Nelson 9/4/1998

  9. Unbeknown to Dr Todd or to Ms Bonnington, however, on 31 March 1998 the Ministry had received a letter of objection to the application from Mr. Williams on behalf of the committee. The letter, which was addressed to Ms Warren, said:

    Application Marine Farm U941575 (18.294) Waitata Bay East of Reef Point

    There has already been a revised boundary at the western end of the original application for coastal space, this we believe was negotiated between the Challenger Scallop Enhancement Company and the applicant. We believe this compromise was to allow commercial scallop boats to turn. The area remaining, we believe is too close inshore for safe commercial dredging. However, this restriction does not apply to amateur dredging.

    Para 4 of Davidson’s survey of 29.12.97 is an observation in that "it may continue to support scallops both inshore and between lines". In fact he uses the words "inflated numbers". No doubt he is correct because inshore would not be dredged because of the cobble and between the lines would be too hazardous even for the most careful amateur scallop fisher.

    The net result of course to exclude a further area of 2.4 hectares of a well documented scallop fishery.

    The number of mussel farms in Waitata Bay has already made substantial inroads into this available fishery.

    It is interesting to note the difference in density observed by First Wave on 1.6.95 0.037 per square metre and Davidsons survey 29.12.97. 0.38 per square metre. DOC guide lines quote 0.12 per square metre.

    The committees opinion is the permit should not be issued.

    "(Signature)"

    Sec (tem)

    Marlborough/Nelson Marine Farm Permit Consultative Committee

  10. Dr Todd had accordingly signed Ms Bonnington’s memorandum on 9 April unaware that the committee had expressed these concerns. It seems that the letter of 31 March 1998 was referred to Ms Warren when it was received, but that was around the time that she left the Ministry without having had time to deal with it.

  11. Under the Department’s procedure the next step, after Dr Todd had signed off the memorandum, in the normal course, was for the science advisor in the Ministry to be notified of the decision, and a copy of it to be put on the client file. The applicant would then be notified of the decision and where appropriate provided with a permit. Notification to other interested parties would follow, together with the formal entry onto the Register of the details of the permit if it had been granted.

  12. The existence of the committee’s letter soon became known to Dr Todd and on 15 April 1998 he asked Mr. Bloxham, another Ministry official, to check the validity of some comments that had been made on it within the Ministry. Dr Todd told Mr. Bloxham that Ms Warren had completed her assessment when this late objection had arrived but that she had not had the time to deal with it.

  13. Mr. Bloxham then embarked on a fresh consideration of the application. It is not appropriate for us to go into the detail of the consultations he undertook or other aspects of the lengthy process because the present matter is only one part of a current wider challenge by judicial review of the Ministry’s whole decision-making process which is yet to come before the High Court.

  14. On 13 September 1999 Dr Todd made a fresh decision. He declined the application for a marine farming permit. In a letter to the appellants he said:

    I refer to your marine farming permit application for the Waitata Bay site. I wish to advise that I have declined your application.

    I am not satisfied that there will be no undue adverse effect on the recreational scallop fishery from the granting of marine farming permit at the Waitata Bay site.

    He went on to apologise for the Ministry’s delay in making a decision on the application although apparently confining that apology to the delay that had taken place in the course of reconsideration.

    HIGH COURT JUDGMENT

  15. The appellants brought proceedings in the High Court seeking judicial review of the refusal of the application. The statement of claim contains a number of allegations of complaint about the Ministry’s process including an allegation that the respondent withheld from the appellants the document signed off on 9 April 1998 by Dr Todd. The appellants have also alleged that the permit was finally refused for reasons that had been addressed by the local authority when the coastal permit was granted under the Resource Management Act, and which were accordingly not factors that could properly be taken into account by Dr Todd in refusing the permit. There are also allegations of breach of natural justice, the duty to act fairly, and of failure to act in accordance with s27 of the New Zealand Bill of Rights Act 1990. It is also pleaded that the considerations leading Dr Todd to refuse the application, including those raised in the submissions of the committee, were irrelevant to the decision and should not have been taken into account. Various assertions relating to the impracticality of recreational fishers dredging for scallops in the area are also made.

  16. On 7 December 2001 a Master made orders by consent that the issues concerning the causes of action in relation to whether or not a permit had actually been granted by the Ministry should be tried separately from other causes of action.

  17. The cause of action the subject of the present appeal, which alleges that the appellant’s application was granted on 9 April 1998, was heard and determined by Ronald Young J in the High Court (Goulding & Curtis v Chief Executive Ministry of Fisheries CP10/01, Blenheim, 11 February 2002). The Judge described the issue as a narrow one which came down to whether or not Dr Todd had become "functus officio" once he signed off the application as "Granted". The Judge said that it was common ground that this decision was not communicated to the plaintiffs. He referred to the departmental process for dealing with applications for permits and said it usually involved the submission of an evaluation report which recommended a grant to the decision maker along with a form of permit for signature. That, however, did not happen in this case. The Judge also said that had the matter proceeded in the normal course the Ministry would also have given consideration to the conditions to be applied on granting the permit. While there was a standard set of conditions which the Ministry applied to all grants, further conditions might have been imposed under s67J. Because by 16 April 1998 the Ministry had abandoned the 9 April decision it never gave consideration to such conditions.

  18. Turning to the legal position, the Judge said that it was common ground between the parties that an administrative decision could be reconsidered by the person making it until the time that it was perfected. What happened on 9 April had not been communicated to the appellants. The first question was accordingly whether or not the decision had been perfected. It had to be decided by reference to the statute. Section 67J(8) of the Act required the Director-General to be satisfied about certain matters before issuing a marine farming permit and the Judge held that the concept of the issue of a permit under the Act carried with it the notification of the decision to grant the permit. In the Judge’s view it was only when the grant was promulgated, by notice to the applicant and objectors, that the permit could be said to have been issued.

  19. He also said that it was in the nature of administrative decision-making that often there was considerable internal debate within an organisation before the decision-maker came to decide the question. There did, however, have to come a time in the process when the decision was given and could not be reconsidered. To allow reconsideration following promulgation of a decision would affect public confidence in decision-makers and bring about instability in their tasks. On the other hand if, prior to its promulgation, a decision were to be seen to be final that could affect the freedom of internal debate, which was advantageous to a thorough analysis of matters requiring decision. In the Judge’s view fairness to an applicant did not require any finality prior to promulgation of a decision.

  20. Finally, and as an alternative basis for his decision, the Judge observed that he saw no reason why the statutory power of reconsideration under s25(j) of the Acts Interpretation Act 1924 could not be invoked by the respondent to uphold Dr Todd’s decision. That statute applied as the steps concerned had occurred prior to the coming into force of the Interpretation Act 1999. For these reasons the Judge concluded that Dr Todd was not functus officio on 15 April 1998 when he decided that his decision of 9 April should be reconsidered. He accordingly dismissed the proceeding in respect of the cause of action.

    THE STATUTORY PROVISIONS

  21. Part IVA of the Act deals with Marine Farming and within that part s67J with marine farming permits. Under s67J(1) there is a prohibition on farming fish, aquatic life or seaweed without a permit or other specified form of authorisation. A marine farming permit authorises the holder to farm within the permit area and to possess, take and sell the fish, aquatic life or seaweed produced subject to the permit terms (s67L). Section 67J(4) provides for applications for permits to be made to the Director-General (defined in s2 to be the responsible chief executive) on a prescribed form, if there is one, accompanied by a copy of the coastal permit. Section 67J(7) empowers the chief executive to require that additional information be supplied reflecting that the decision-maker has a responsibility to become adequately informed before deciding whether or not to grant the permit. Section 67J(8) is the central provision in the permit application process and stipulates:

    The [chief executive] may not issue a marine farming permit unless he or she is satisfied that the activities contemplated by the application would not have an undue adverse effect on fishing or the sustainability of any fisheries resource.

  22. Under s67J(10) a permit may be issued subject to conditions including those which the chief executive considers to be necessary or desirable to avoid, remedy or mitigate adverse effects on fishing or the sustainability of any fisheries resource. Importantly in the present context there is also power for the chief executive to provide in conditions of consent for their review at specified periods during the term (s67J(10)). There is also provision for the holder of a permit to apply to the chief executive to change, cancel or add new conditions to the permit at any time (s67K).

  23. These provisions indicate that Parliament turned its attention to the need for administrative flexibility in relation to future changes to conditions attached to marine farm permits and made specific provision for how they might be varied. There is however no express power for the chief executive to revoke a permit once issued and the statutory scheme tells against there being any implicit power.

    THE COMMON  LAW ON CHANGING DECISIONS

  24. The issue in the appeal is whether Dr Todd’s action in signing the memorandum on 9 April 1998 amounted to a decision which from that time was final and conclusive, and therefore not able to be revisited, or whether it was rather a decision which could be changed or revoked until such time as it was communicated to the applicants.

  25. It is of course possible for a statute to stipulate the circumstances in which an administrative decision is final, but that has not been done under the Act at least in the case of decisions to issue marine farm permits. Subject to the scope of s25(j) of the Acts Interpretation Act, to which we shall return, in order to ascertain whether it was open to Dr Todd to revoke or replace the decision of 9 April 1998, common law principles governing the finality of administrative decisions must be applied.

  26. In the judgment of the Chancery Division in Re 56 Denton Road, Twickenham [1953] 1 Ch 51 a question arose concerning whether a final decision had been made concerning the classification of the plaintiff’s house for purposes of fixing compensation for damage caused during the war. In 1945 the War Damage Commission had classified the plaintiff’s property as a partial loss, having reviewed an earlier preliminary classification of total loss. That was to the plaintiff’s advantage as it gave her an entitlement to a payment based on cost of works rather than one based on the value of the property. The plaintiff was asked if she agreed to the classification and wrote back to say that she did. The following year the Commission decided that the decision "set an awkward precedent" and wrote to the plaintiff saying that it had been decided to revert to the total loss classification. Counsel for the plaintiff, Mr. Diplock QC, formulated a principle, which Vaisey J held to be well founded and applicable to the case, as follows (pp56-57):

    where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body.

  27. The principle stated in Re 56 Denton Road, Twickenham was said by Vaisey J to apply to administrative decisions which affect the rights of the subject. In Rootkin v Kent County Council [1981] 1 WLR 1186 the English Court of Appeal drew a distinction between decisions which affect rights and those in which the decision maker had a discretion to confer a benefit. The Court held that, in cases of the latter kind, a decision could be revoked if it was later discovered to have been made on the basis of a mistake as to the facts. In Rootkin a local authority had an obligation to reimburse travelling costs of pupils attending a school that was over three miles from home. A decision was made that the plaintiff qualified and she was provided with a bus pass. When it was subsequently established that the distance was less than the stipulated three miles the authority withdrew the pass. The Court of Appeal held that it was entitled to do so.

  28. The distinction drawn in Rootkin, between the determination of a right and the exercise of a discretion, as the basis for deciding whether a decision is revocable has been criticised and the line between the two concepts described by one leading textbook writer as "hazy" (Craig Administrative Law 2000 p673). While it seems appropriate to be able to correct a mistake which has resulted in a decision having continuing beneficial effect, such as that in Rootkin, there must be some limits on that approach in relation to decision-making powers which are finally expended once exercised. This is the view taken by Wade & Forsyth, Administrative Law, 8th ed 2000 p235.

  29. A collateral principle is stated in the decision of the Queen’s Bench Division of the High Court in R v Greater Manchester Valuation Panel ex p Shell Chemicals UK Ltd [1982] 1 QB 255. Appeals against determinations of rateable value were heard at length and considered by a local valuation tribunal. The three members reached agreement on their decision but, before a formal assessment was made or the reasons written down, the chairman of the tribunal died. The two surviving members then issued what purported to be the decision of the tribunal. Glidewell J had to decide whether the decision that had been issued was truly that of the tribunal and on that point said (at p264):

    In my judgment the authorities to which I have been referred establish the principle that a decision cannot be said to be effective until it has been communicated to the parties in some way. Until that happens, a decision on which the Court and all its members have reached an interim agreement can nevertheless be altered. After it has been announced, in whatever form it be announced, it cannot be altered.

  30. From these twin principles the rule has been developed that it is only on communication that an administrative decision is perfected so as to be both an effective and a final decision. Until that point it is provisional. By analogy with the rules governing when judgments of a court may be set aside, once an administrative decision has been perfected it may no longer, save in an exceptional case, be revoked or varied by the decision maker. Professor Campbell has said:

    Where the governing legislation does not prescribe any particular mode for perfecting a decision the general rule seems to be that the decision is perfected once it is communicated to the person or persons to whom the decision relates. The communication may be made orally or in writing. The important thing is that the decision should have been communicated in such a way as to indicate that the decision is not merely tentative or provisional.

    [Enid Campbell, "Revocation and Variation of Administrative Decisions", (1996) 22 Monash University Law Review 30, 40.]

  31. Mr. Crosby argued that, under the statutory scheme for issue of permits, once the preconditions of no undue adverse effect on fishing or the sustainability of any fisheries resource under s67J(8) are satisfied, the chief executive has no residual discretion to refuse to issue the permit. The power to issue the permit, he said, is then coupled with a duty to exercise it. He cited this Court’s decision in Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341, 344 (CA) in support. In that case, however, in plain contrast to s67J(5), the relevant regulations stipulated that the Minister "shall grant and issue a licence" if satisfied on the five matters stipulated in the regulation.

  32. Furthermore, as Mr. McCarthy submitted for the respondent, s67J(8) requires the chief executive to decide that there is no undue effect of the kind indicated. It calls for a decision based on a value judgment of a kind which a decision-maker might reasonably wish to revisit after taking an initial decision. The legal consequences of a final decision as to undue effects are accordingly beside the point in this case. The question is, rather, whether a final decision had been taken on whether the preconditions were satisfied.

  33. Mr. Crosby next referred to the common law principle reflected in Ronald Young J’s observation that written decisions, until promulgated, remain internal documents and susceptible to change. He argued that this principle has no validity in New Zealand because the policies of open government, reflected in New Zealand statute law since the enactment of the Official Information Act 1982, mean that the notion that the preliminary processes of decision makers are internal and private is no longer sustainable. Mr. Crosby submitted that as the appellants are entitled to be informed of the process followed at all stages in the Ministry, in deciding their application, promulgation should no longer be the point when a decision is taken to assume its final character. The court should instead, he argued, decide when there was an "act of finality". In the present case that took place when Dr Todd signed the memorandum. That should be the point when his decision became irrevocable.

  34. We are however satisfied that the principles of open government have no bearing on when an administrative decision becomes irrevocable. The emphasis that the common law gives to communication of a decision as indicative of finality, rests on a judgment as to the point in the process at which the conflicting interests of flexibility in administration and of citizens having reasonable certainty concerning matters affecting them, are mutually accommodated to the best overall advantage in the public interest. While the Official Information Act entitles the public to access information concerning decisions affecting them it does not affect the law on when a decision is actually made and, inherently, the regime operates. The certainty and finality of the administrative process remain valid reasons for placing importance on the time of communication and that will usually be the time when persons affected first learn of a decision. Communication rather than another act will be essential to perfecting a decision in all but the most exceptional of cases.

  35. Mr. Crosby next argued that the judgment delivered by Lord Denning MR. in R v Criminal Injuries Compensation Board ex parte Tong [1976] 1 WLR 1237 (CA) was an authority directly on point and in favour of the appellants’ contention that some act other than its communication could denote a final decision and that clerical delay would not vitiate it. In ex parte Tong a single member of the Board had made an assessment of compensation payable to Mr. Tong for injuries he had suffered during a robbery. Mr. Tong died, without having been informed of the assessment due to an administrative delay. The administrative scheme under which the Board operated required the communication of an acceptance by the claimant of a member’s assessment before compensation became payable. Lord Denning (with whom other members of the Court of Appeal agreed) said that the award of the member had become vested in Mr. Tong when it was made so that, on Mr. Tong’s death, the benefit passed to his estate. He reinforced this finding by saying that Mr. Tong’s widow should not suffer from the delay of the board’s staff (p1242).

  36. Mr. Crosby’s argument was that on 9 April 1998 Dr Todd had satisfied himself that the statutory pre-conditions for issue of a permit under s67J(8) had been met and had that he had made a final decision to grant the permit signified by signing the memorandum. Thereafter the appellants had been deprived of the issue of the permit by reason of the Ministry’s administrative delays. He said that the case was covered by the principle in ex parte Tong in that the benefit of the grant of the permit had vested in the appellants prior to Dr Todd’s change of mind.

  37. We accept that when Dr Todd signed as "Granted" the internal memorandum concerning the appellant’s application he made a decision which it might be said completed the process of decision-making, although the precise conditions to be attached to the permit had not then been determined. But, while the completeness of the decision-maker’s process signals that a decision has been made, it does not in itself determine the question of whether it is still possible to revoke the decision prior to its being perfected: Griffiths v Secretary of State for the Environment [1983] 2 AC 51, 70-71 per Lord Bridge.

  38. In ex parte Tong the decision of the member who assessed the compensation was held by the Court of Appeal to be effective under the administrative non-statutory scheme to create rights which vested in Mr. Tong’s estate after his death, although it had not been communicated to Mr. Tong during his lifetime. In that sense it was held to be a completed decision. But no question of revocation of the decision arose in ex parte Tong and the judgment of Lord Denning is not authority for the proposition that an uncommunicated decision, which is the outcome of an otherwise completed process, cannot be revoked by the decision-maker. In reaching this conclusion we acknowledge that we have had the benefit of the analysis in a valuable article to which we were referred by both Mr. McCarthy and Mr. Crosby: SJ Schønberg, Legal Certainty and Revocation of Administrative Decisions: A Comparative Study of English French and EC Law (1999-2000) 1, Yearbook of European Law 257, 271.

  39. Nor is the delay in this case by the Ministry in actioning Mr. Todd’s decision, such as it was, of any significance. He had effectively suspended its implementation by 15 April when he asked Mr. Bloxham to look into the committee’s recent objection. It is difficult to see that he could have responsibly done otherwise given his discovery that the committee’s written objection had been available in the Ministry at the time he made his initial decision. In those circumstances a duty arose, imposed by s67J(8), not to issue the permit unless satisfied there were no adverse effects. We conclude that the present case accordingly falls to be determined on ordinary principles in relation to revocation of decisions that have not been perfected and that the judgment in ex parte Tong is of no assistance.

    THE POLICY CONSIDERATIONS

  40. We have already observed that in fixing the point during an administrative decision-making process when a decision made in the exercise of a statutory power is a final decision, the law must accommodate two conflicting policy considerations. First, it is in the interests of sound administration that there be some latitude during internal processes to allow reconsideration of an initial decision, whether the need to do so arises from earlier mistakes as to the facts or the applicable law, the availability of fresh information relevant to the decision, the desirability of correction of an error, or simply further reflection by the decision-maker. At a time when the value of consultation is increasingly recognised as a means of better informing decision-makers of relevant considerations a flexible approach also accommodates the difficulty of obtaining timely input from those able to give it.

  41. On the other hand, once a certain point in the process has been reached the alteration of a decision which has been taken, especially if a benefit that otherwise would have been gained by an interested person is thereby lost, is capable of producing financial loss, unfairness and great inconvenience to the public. Citizens necessarily rely on administrative decisions in their daily lives. While statutory rights of appeal or review must be tolerated, the risk of further uncertainty from open-ended administrative reconsideration need not be and to allow it would lead to loss of public confidence in the integrity and competence of public administration. While from an administrator’s viewpoint a better decision may still be made, at some point the countervailing advantages of treating the decision already reached as conclusive must assume greater weight.

  42. By fixing that point as being when a favourable decision has been perfected, which is generally when it has been communicated, the common law has sought to accommodate the competing factors and create a clear signpost of when it is that an administrative decision generally becomes final and conclusive. Communication is the formal action which brings the internal act of decision into the open. Thereafter, if the decision is favourable, citizens may be expected to have acted on the basis that they have secured the benefit of it. The risk of detriment arises, including a sense of grievance if it is altered to their disadvantage.

    A SUMMARY OF THE PRINCIPLE

  43. The common law principle applicable to the present case can accordingly be summarised in this way. A valid administrative decision in the exercise of a statutory power, which is the outcome of a completed process, but which has not been formally communicated to interested parties, has not been perfected. It may be revoked and a fresh decision substituted at any time prior to communication of it to affected persons in a manner which indicates intended finality. Once such a decision is so communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final. A final decision which is made in the exercise of a power which affects legal rights, including those arising from the grant of a licence, is irrevocable. So is any other decision made under a statutory power where the Act explicitly or implicitly provides that once finally exercised the power of decision is spent. That is the position under the common law. We must, however, also consider the relevant provisions of the interpretation statutes.

    THE INTERPRETATION STATUTES' PROVISIONS

  44. It will be recalled that the Judge also found that s25(j) of the Acts Interpretation Act 1924 (which was the interpretation statute in force at the time Dr Todd refused the appellant’s application for a permit) gave the chief executive power to make a fresh decision on the application. Section 25(j) provides that unless the context otherwise requires:

    (j)

    Power to do any act or thing, or to make any appointment, is capable of being exercised as often as is necessary to correct any error or omission in any previous exercise of the power, notwithstanding that the power is not in general capable of being exercised from time to time.

    Ronald Young J was of the view that Dr Todd was correcting an error or omission in the previous exercise of that power when he refused the appellant’s application on 13 September 1998.

  45. Section 25(j) has often been considered alongside s25(g) of the Acts Interpretation Act which provides that in every Act, unless the context otherwise requires:

    (g)

    Power given to do any act or thing, or submit to any matter or thing, or to make any appointment, is capable of being exercise from time to time, as occasion may require, unless the nature of the words used or the thing itself indicates a contrary intention.

    The respective equivalent provisions to ss25(g) and (j) in the Interpretation Act 1999 are ss16 and 13.

  46. Unlike s25(j), a provision along the lines of s25(g) is common in the interpretation statutes of other jurisdictions. In reference to s12 of the Interpretation Act (UK) 1978 Wade & Forsyth say (p235):

    In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, ‘the power may be exercised and the duty shall be performed from time to time as occasion requires’. But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.

    For this purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case. An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act ‘from time to time as occasion requires’. But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality. Citizens whose legal rights are determined administratively are entitled to know where they stand.

    See also Sauer v Cameron [1993] NZFLR 465, 471 per Neazor J to the same effect.

  47. We share the view that s25(g) and s13 of the Interpretation Act 1999 do not give power to reverse a previous decision made in the exercise of the power which affects legal rights within which we would include the benefits obtained on the issue of a marine farming permit under s67J.

  48. The New Zealand Law Commission in its report A New Interpretation Act (NZLC R17, 1990) said of s25(j) at p123:

    The present provision is broadly drafted and appears to allow (and we received at least one submission to the effect that it does allow) the re-exercise of a power (or the revocation of an earlier exercise) in reliance on grounds that are, at the least, uncertain and discretionary-for example that the people exercising the power "had changed their minds". It is unlikely that this was ever intended. Rather the purpose of the provision must be to allow minor corrections in order to prevent an exercise of power being technically invalid. And s25(j) has been applied in that narrow manner.

  49. The general tendency in cases decided under s25(j) has been to treat the power it confers as of limited scope. In Triton Textiles v Minister of Trade and Industry (1986) 6 NZAR 261 Smellie J decided that a change of mind in the Department of Trade and Industry, concerning the classification into which particular articles of clothing fitted under import licensing regulations was not an error which in terms of s25(j) was capable of correction. There had been no error involved, but merely a change of opinion within the particular Department which had no binding legal effect and the correctness of which at the time was unknown. Other decisions in which the section was applied take a consistent approach. In Auckland City Council v Long (1998) NZRMA 183 a planning officer issued a certificate of compliance without having delegated authority to do so. It was later countersigned by an officer who had the requisite authority. Salmon J held that s25(j) applied to allow that correction of the error. Similarly in Lloyd v Registrar of Ships at Whangarei [1989] NZLR 586 an entry was made on the register under the erroneous belief that the ship was entitled to be registered. Section 25(j) was held to authorise correction of the register.

  50. Consistently again, in relation to the similarly expressed s55 of the Western Australian Interpretation Act, Professor Campbell has said:

    The section is clearly intended to allow for revision of administrative decisions which, under the general law, would not be open to revision. But the power of revision is a limited power and one the exercise of which is judicially reviewable. The power could not, for example, be exercised simply because the decision maker had changed his/her mind.

    Revocation and Variation of Administrative Decisions at p 64

  51. Section 25(j), like the Western Australia equivalent provision discussed, requires that there be an error or omission in the previous exercise of the power which the section is applied to correct. In the present case Dr Todd received further information which he regarded as inconsistent with that earlier provided to him and which caused him to change his mind on whether the threshold requirements of s67J of the Act were satisfied. We do not consider that this amounts to the correction of an error or omission with the limited scope of the power conferred by s25(j). Accordingly we would agree with the appellants on this aspect of the High Court’s judgment. There remains however the question whether under the common law a final decision was made.

    APPLICATION IN THIS CASE

  52. Although it is clear that once a final decision has been taken to issue a marine farming permit, it cannot be revoked other than on the narrow basis provided for, the Act does not stipulate the circumstances in which a decision to issue a permit becomes final. The common law principles discussed must be accordingly applied. In this case the decision which was taken by Dr Todd on 9 April 1998 was the outcome of a completed process, but, before the decision was perfected by communication of the outcome to the appellants, Dr Todd decided he should review it. He did so because he became aware that a written submission from an interested party had been received by the Ministry, at the time he had taken his decision, but its contents had not been taken into account. That is disputed by the appellants, who say there was nothing in the submission which had not already been considered by Ms Warren, but that is not relevant to the question of whether Dr Todd was able to review, and eventually revoke, the decision he had taken.

  53. It is sufficient to resolve this case to say that no step was taken to communicate to the appellants the decision taken by Dr Todd on 9 April 1998. The informal communication in June 1998 was not of a character that has significance. It was clearly open to the decision-maker, in those circumstances, to change the 9 April decision which he did on 13 September 1999. For these reasons we agree with the High Court Judge that it was lawful for him to do so.

  54. The appeal is accordingly dismissed, with costs to the respondent of $6000, together with reasonable disbursements, to be agreed by counsel or failing agreement to be determined by the Registrar.


Cases

Chief Executive of the Ministry of Fisheries v NZ Marine Farming Association Ltd: CA182/02 and 191/02, 25 September 2002; Goulding & Curtis v Chief Executive Ministry of Fisheries CP10/01, Blenheim, 11 February 2002; Re 56 Denton Road, Twickenham [1953] 1 Ch 51; Rootkin v Kent County Council [1981] 1 WLR 1186; R v Greater Manchester Valuation Panel ex p Shell Chemicals UK Ltd [1982] 1 QB 255; Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA); R v Criminal Injuries Compensation Board ex parte Tong [1976] 1 WLR 1237 (CA); Griffiths v Secretary of State for the Environment [1983] 2 AC 51; Sauer v Cameron [1993] NZFLR 465; Triton Textiles v Minister of Trade & Industry (1986) 6 NZAR 261; Auckland City Council v Long (1998) NZRMA 183; Lloyd v Registrar of Ships at Whangarei [1989] NZLR 586

Legislations

Fisheries Act 1983: s67J, s.67K

New Zealand Bill of Rights Act 1990: s.27

Resource Management Act

Acts Interpretation Act 1924: s25

Interpretation Act 1999

Authors and other references

Craig Administrative Law 2000

Wade & Forsyth, Administrative Law, 8th ed 2000

Prof Campbell, "Revocation and Variation of Administrative Decisions", (1996) 22 Monash University Law Review 30

SJ Schønberg, Legal Certainty and Revocation of Administrative Decisions: A Comparative Study of English French and EC Law (1999-2000) 1, Yearbook of European Law 257

New Zealand Law Commission Report, "A New Interpretation Act" (NZLC R17, 1990)

Representations

RD Crosby and QAM Davies for the Appellants (instructed by Gascoigne Wicks, Blenheim)
PA McCarthy and BH Arthur for the Respondent (instructed by Crown Law Office, Wellington)


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