Rule Of Law

'The Origins of “The Rule of Law”' by Jeremy Kessler in (2025) 87  Law and Contemporary Problems comments  

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on. 

When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists. 

In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610? 

This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

The Aesthetic Turn and the Absurd Turn

'Sovereignty and the Persistence of the Aesthetic' by Illan Wall and Daniel Matthews in (2024) Modern Law Review comments 

British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. In the absence of a developed theory of popular sovereignty, sovereignty has become largely synonymous with this rule concerning the legislative competence of parliament. As Loughlin and Tierney have recently argued, this approach obscures the political dimensions of sovereignty which undergird the legal precept. They describe sovereignty as taking shape through the ongoing articulation of both legal and political relations. As Loughlin has argued elsewhere, sovereignty is best understood as having the form of a ‘double helix’ with the legal and the political running as anti-parallel strands. This article seeks to supplement this approach, arguing that instead of a doubled relation between law and politics, we should instead conceptualise a threefold process in which the legal, the political and the aesthetic are the essential elements which constitute sovereign forms. 

The article has two aims. The first is to retrieve, and give prominence to, the aesthetic dimensions of sovereignty within the history of political modernity. In the next section, we introduce the nature of aesthetics – as both a matter of appearances and perceptions – and indicate some of the reasons why this aspect of civil order has often been elided. Following this (in the third section) we engage with some well-known articulations of sovereignty − from the Hobbesian imaging of sovereignty, to early-modern efforts to map sovereign territory; from Rousseau's evocation of national sentiment, to Burke's description of how ‘dignity’ and ‘majesty’ are essential to the claim to sovereignty − before we conclude by examining the habituated feelings and instincts which Bentham understood to be central to the reproduction of sovereign relations. Our reading of this history draws out how the aesthetic persists across these varied approaches, but also aims to give a sense of the diversity of functions the aesthetic fulfils vis-à-vis sovereignty. Our account is obviously incomplete, both in terms of personnel and the range of aesthetic qualities it surveys; we tend to emphasise, for instance, the visual and affective qualities more than the sonic or haptic dimensions of sense perception. Nonetheless, our aim is to give priority to the aesthetic within the tradition of writing on sovereignty, in contrast to dominant approaches within constitutional thought which have either ignored, downplayed or obscured these concerns. 

Our second aim is more speculative. Whilst our reading of the history of political modernity suggests an important corrective, which draws out often underappreciated themes, it tells us nothing of how the aesthetic should be included in a theory of sovereignty. In a final, shorter, fourth section of the article we consider the different ways in which the aesthetic might be incorporated into constitutional theory, identifying three theses on the aesthetics of sovereignty: a totalisation thesis; an inadvertent or ‘weak’ inclusion; and finally, a ‘strong’ inclusion of the aesthetic, which we ultimately endorse. We conclude by suggesting that Loughlin's account of the double helix structure of sovereignty might be amended, contending that sovereignty takes the form of a triple helix in which law, politics and aesthetics are the strands which constitute the basic structure of the concept. Our aim here is speculative in that our approach opens the theorisation of sovereignty to new terrain, by insisting that the concept – particularly in the context of legal studies – needs to embrace not simply political but a range of aesthetic qualities and concerns if its meaning, implications and enduring importance are to be fully appreciated.

Claims in Turnbull v Clarence Valley Council [2023] NSWSC 83 reflect what might be unkindly characterised as pseudolaw as a manifestation of an absurd turn.

The judgment states 

 Mr Turnbull pursues damages in excess of $25 million against the Clarence Valley Council, most of it said to be the result of various claimed unlawfulness and the rest, wrongdoing by the Council specifically towards him. 

The proceedings are the result of events which began in February 2019 when Mr Turnbull was erecting a building on a property at Pillar Valley, owned by the grandparents of his children, without having sought prior Council approval. He claims that after he returned from an overseas trip, he found a stop work order issued by the Council, which amounted to his eviction from the property. ... Mr Turnbull claimed that as a result, he was wrongly left homeless, sleeping on the streets where he was subjected to ongoing harassment by employees of the Council, when he was fined for parking his motor home contrary to parking signs Council had erected. 

Mr Turnbull’s amended statement of claim pleads many events and his resulting beliefs and opinions about the illegality of the Council and its actions, as well as:

(1) numerous claimed breaches of the Criminal Code Act 1995 (Cth) allegedly committed by the Council, including when Council rangers issued him with three fines for parking and sleeping in a public car park where a no parking between the hours of 12 am and 5 am had been erected. Other alleged offences included treachery by intending to overthrow the Commonwealth Constitution; obtaining a financial advantage by deception; dishonestly causing a loss; and conspiracy to defraud; 

(2) numerous claimed breaches of the Commonwealth Constitution, referenda to amend it to refer to local government having failed; 

(3) racketeering by Council, in various alleged ways; 

(4) that the Council is a corporation with a CAN number; (5) that the Council had denied his right to exist, injecting themselves into his life as a “Mafia crime syndicate” would do, setting up a rule book of unlawful laws, acts, permits and certificates, in order to steal from and control people and all the land; 

(6) that the Council is responsible for land use regulations as directed by the State and thus also responsible for increased land valuations which preclude people from land ownership; result in the enforcement of unlawful laws; and the unlawful restriction of privately owned land; and 

(7) the Council wrongfully outlawing camping in various areas where homeless people sleep in cars during sleeping hours.

The claims are defended by the Council.

The Court states 

... Mr Turnbull relied on affidavits and other documents and a USB which he had served before the hearing, as well as written and oral submissions in which he explained his case. That included his various beliefs and opinions and why he resisted the orders which the Council pursued. In the circumstances, I am satisfied both that he did have a reasonable opportunity to advance his case and that he took advantage of it, given all that he relied on. 

That included, for example, claims such as

• that it was treachery for the State to enforce a stop work order using laws that contravened the Commonwealth Constitution; 

• that there had been alleged intentional frauds and conspiracies pursued, including one that had been uncovered in the 1960s and involved secret IMF banking policies to control the global financial system and all governments under a world government; 

• that other conspiracies had been pursued by Australian prime ministers, to remove the people from the Commonwealth of Australia; 

• his understanding of God’s laws; and 

• that before the 1993 enactment of the Local Government Act 1993 (NSW), everyone who owned land had specified rights, including the right to build any dwelling or structure there, or any number of buildings and since then, the system had gone mad at the expense of peace, welfare and good government. 

Mr Turnbull also advanced explanations for his conduct and events which had unfolded. They included, for example: 

a statement and declaration of truth affidavit, where Mr Turnbull states that his purpose (occupation) is “Galactic Emissary”; explains that he is the living man incarnated into Christopher Luke of the tribe/family/house/clan Turnbull; explains his various beliefs about matters such as the soul, the living man and competence; as well as various assertions, including about his own Universal sovereignty; deficiencies in his birth registration; that he is not lost at sea; claimed fictions; personage flowing from the Creator; and claimed violations of the Universal Declaration of Human Rights, on which he relies, despite his rejection of the United Nations. It, he says is a false authority and fictitious entity of identified claimed governments, including of this State. He also explains the reclaimed rights of his living body; private property; privacy data; as well as presumptions of claimed law on which he relied, including as to contracts, legal liability and the consequences of claimed responses, including silence. This statement was said to be given in order to: “i. establish, signify, proclaim, and verify the status of this living being; and ii. to eliminate/deny any and all presumptions by any and all fictitious, corporate or private entities; and iii. to rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing upon the land”; 

photographs of the building before and after Mr Turnbull began to erect it on the property, in addition to those taken by the Council on its inspection; 

a USB containing other documents and links to videos on which Mr Turnbull relies. They include videos which he has taken on occasions when he spoke and at times shouted at a Council ranger and another Council employee and others where someone is riding a motorbike around a campground, filming what is there to be seen; photographs of vehicles; as well as a link to a YouTube video, First Nation Mandamus. There people explain their call for an International Human Rights Abuse Tribunal to be conducted in relation to the genocide of Indigenous Australians, the oldest living culture on the planet and their reasons for that call. They include their sovereignty over the land which they have retaken; their need to protect their children, who they consider have been stolen from them and their call for a meeting with King Charles, for reasons which they explain; a notice issued to Council by the Velvet Revolution, which Mr Turnbull claims evidences service of a Moratorium on all Local Council members, charging them with misprision of treason, which rested on the Crimes Act 1914 (Cth), UK legislation, the Nuremburg Code, Helsinki Code and Magna Carta, as well as claimed inalienable rights; and a statement by Ms Lascelles, a Council Ranger, about parking infringement notices issued to Mr Turnbull.

Mr Turnbull claimed in his extensive submissions, that what he relies on, including late served documents to which objection was taken based on relevance and in one case, disputed authenticity, establishes the illegality and wrongfulness of the Council’s actions, which he would be able to prove at trial. 

The disputed documents were received on the motion on the basis that the weight which they could be given would have to be determined, given their contents and the cases which the parties advanced. 

In the case of the document claimed to be a copy of a letter written by the former Chief Justice Sir Harry Gibbs, said to have been published in May 2021 by “TrueBlue Observer”, I am satisfied, having considered it, that it can be given no real weight. That is because the document does not take the form of a letter; is headed “Explanatory Statement”; contains a photograph of Sir Harry; is not printed on letterhead; and is neither dated nor signed. That it is a copy of the letter which Mr Turnbull understands it to be, is thus not apparent. 

Shortly before the hearing Mr Turnbull had also served what he claimed to be an interlocutory application brought to this people’s Court under the common law, which serves the interest of this land, Terra Australis, which he considered had to be determined before the motion. What he thereby sought to pursue was allegations that the Council had not served evidence about matters such as its authority to conduct business on this land; ownership of buildings, caravan parks and reserves; and authority over him as a living man. 

I am satisfied that what is sought to be pursued by this application does not require consideration before the motion is heard and determined, the motion having been listed for hearing as it was, and the parties having complied as they had with the Court’s orders as to the service of their evidence and submissions. But I have taken into account what Mr Turnbull thereby sought to advance, the document being in evidence, in coming to a conclusion about the matters over which the parties joined issue. ... x ... 

 The Council’s case is that Mr Turnbull advances baseless claims against it which are frivolous and vexatious; have no conceivable prospects of success and so should be struck out. Further, that the proceedings should be dismissed, constituting as they do an abuse of the Court’s process which has a tendency to cause prejudice and embarrassment, given various scandalous and irrelevant claims advanced by Mr Turnbull in his affidavits and submissions. ...

The relevant law, which I will come to, is also well settled. Contrary to Mr Turnbull’s case, binding authority is contrary to the claims which he seeks to litigate. In the result, for reasons which I will explain, I am satisfied that the orders sought by the Council must be made, having approached what lies in issue between the parties in accordance with the authorities earlier referred to. On the evidence the Council has established, as it must, that the claims Mr Turnbull seeks to advance are untenable. 

The existence and authority of the Council 

Mr Turnbull has provided answers to particulars which the Council sought, on which it relied in its case. For his part Mr Turnbull also relied on those particulars, expanding them by his written and oral submissions. In essence he contends that there is no legal basis for the Council’s existence, claims which it contends are misconceived. 

Mr Turnbull advanced his arguments as to the claimed illegality which he seeks to pursue in various ways. This includes that the Local Government Act involves a conspiracy to overthrow the Commonwealth Constitution at the instigation of international bankers. As well as claims such as that all Prime Ministers have been paedophiles, without morals or ethics and susceptible to corruption and blackmail; that since 1923 there has been treason pursued in government to overthrow the Constitution; and that there is an ongoing campaign to overthrow the country’s political system, Constitution and money system. He also referred to an alleged conspiracy in relation to COVID-19. 

The case so advanced and the evidence Mr Turnbull relies on, all explain the Council’s submission that Mr Turnbull’s claims are frivolous and vexatious and without prospects of success. 

Some of what Mr Turnbull advances is unknown to the law and substantial aspects of the case he seeks to pursue have already been unsuccessfully pursued by others. Authorities by which the Court, as presently constituted, is bound, rejecting the kinds of case and arguments which he seeks to pursue, thus cannot be ignored. 

Mr Turnbull relies on ss 5 and 51 of the Constitution Act 1902 (NSW). His case is that the Local Government Act is not lawful, given the failure in 1974 and 1988 of referenda which sought to amend the Commonwealth Constitution. In the result he contends that municipal institutions and local government such as the Council are a department of a State government. Further, he said in oral submissions the Council is itself a corporation and he relies on s 109 of the Constitution, which provides for Commonwealth laws to prevail over State laws in the event of inconsistency, to support his case as to the illegality of the Council and the actions which it pursued, which resulted in his departure from the property. 

The claimed illegality on which Mr Turnbull relies underpins and is intertwined in the various ways he explained, in all aspects of the case which he seeks to pursue, including in respect of his agreements with the landowners. 

Mr Turnbull thus does not accept that his departure having been the result of the written agreement which he entered with the landowners, he must pursue any resulting grievance which he has with them. He considers that they had been coerced by Council to seek the approval which they obtained unnecessarily, with the result his eviction, for which the Council is responsible. 

I am satisfied that despite the way in which Mr Turnbull’s arguments were variously advanced, there is no reasonably available argument that the Local Government Act is inconsistent with the Commonwealth Constitution, or that it or the Council suffer from any illegality. The Constitution makes no reference to local government. That referenda which sought to insert such references in the Constitution failed is irrelevant to the laws made by the NSW Parliament, as its Constitution Act permits. 

Mr Turnbull does not rely on any Commonwealth legislation to advance his notions, on which his argument under s 109 of the Commonwealth Constitution depends. That the Local Government Act is not a legislative scheme which the NSW Parliament was empowered by the Constitution Act to make, is thus not a tenable argument. 

Further, what was decided in R v Vorhauer [2002] NSWCCA 483, where a number of similar claims were advanced, is binding and contrary to Mr Turnbull’s claims. 

There it was also contended that local Councils “are unconstitutional by reason of the failure of the constitutional referendum which would have included a reference in the Australian Constitution to local government”: at [14]. This was rejected, Spigelman CJ observing “There is no logic in this. Local governments are created by State legislation under the respective State Constitutions. The absence of any reference to local government in the Australian Constitution is just irrelevant”: at [14]. This conclusion was confirmed in Vorhauer v R [2007] NSWCCA 125 at [41]. 

The enactment of the Local Government Act has also been found to fall within the plenary power given the State Parliament by s 5 of the NSW Constitution: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363. There it was explained that “State laws may be invalid to the extent of any inconsistency with a valid law of the Commonwealth (Constitution, s 109) but a constraint on state legislative power must otherwise derive either from a specific provision of the Constitution or from an implication as to its operation, which necessarily impinges on state legislative power”: at [40]. Mr Turnbull also claims the Council is a corporation, but in Hoxton Park it was also observed at [44] that before the commencement of the Local Government Amendment (Legal Status) Act 2008 (NSW) on 20 November 2008, a council was said to be a body corporate. But that this was altered by these 2008 amendments, which introduced a new s 220. It still provides:

220 Legal status of a council (1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State. (2) A council is not a body corporate (including a corporation). (3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State). (4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).

It was also observed at [48] of Hoxton Park: that the power to enact this provision came from s 5 of the Constitution Act, which provides for the making of laws “for the peace, welfare and good government of New South Wales in all cases whatsoever”, subject to the provisions of the Commonwealth Constitution. While Mr Turnbull contends that the Council’s conduct has been contrary to the peace, welfare, and good government there envisaged, such opinions provide no basis for the conclusion that the Local Government Act is infected by illegality. The Constitution Act also provides in s 51: 51 Local government

(1) There shall continue to be a system of local government for the State under which duly elected or duly appointed local government bodies are constituted with responsibilities for acting for the better government of those parts of the State that are from time to time subject to that system of local government. (2) The manner in which local government bodies are constituted and the nature and extent of their powers, authorities, duties and functions shall be as determined by or in accordance with laws of the Legislature. (3) The reference in subsection (2) to laws of the Legislature shall be read as a reference to laws that have been enacted by the Legislature, whether before or after the commencement of this section, and that are for the time being in force.

Thus it was concluded in Hoxton Park that “While there may remain real questions as to the legal status of a council for different purposes, it is not possible to contend that s 220 [of the Local Government Act] fails to establish a collective body capable of exercising statutory functions, and particularly the consideration of the development applications in respect of land within geographically defined boundaries”: at [57]. 

In the result I am satisfied that it must be accepted that Mr Turnbull’s claims, resting as they do on his understanding of the meaning and operation of the Australian Constitution and Constitution Act, the illegality of the Local Government Act and the non-existence and lack of relevant authority of the Council under that legislative scheme, which has been rejected in these cases, do not disclose that he has any legally tenable cause of action for the claims which he seeks to advance. 

That includes his complaints about the Council’s operation of its campgrounds and reserves and its regulation of parking there and the claims he advances about the three fines imposed upon him as the result of actions taken by its rangers. 

Racketeering and other alleged offending 

The claims advanced in respect of alleged racketeering, conspiracy and other alleged Commonwealth offences similarly disclose no tenable cause of action, advanced as they are by way of Mr Turnbull’s opinions about the illegality of various laws and the conspiracies to which he referred. 

These claims relate to Mr Turnbull’s views about land usage; what can be built on real property; parking laws and fines imposed for breach of them; the regulation of camping grounds; claims advanced in relation to Councils’ claimed responsibility for increases in land value over time, which Mr Turnbull believes has impoverished people and wrongly precluded them from land ownership; as well as the claimed wrongful issue of the stop work order. 

Contrary to Mr Turnbull’s understanding, what he seeks to pursue also does not depend on the prior authorisation by first nations people of steps which the Council pursued, about which Mr Turnbull complains. They are simply not given such powers, by either the Commonwealth or State Constitutions nor any laws made under them to which he referred, even if the Council has recognised such peoples to be traditional landowners of the land falling within its local council area.  

Nor are the laws of God, as Mr Turnbull claims them to be, relevant to his claims. Australia’s legal system is the product of the common law and the legislative actions of British, Commonwealth and State parliaments. All are the result of steps which human beings, not the divine, have taken over the course of centuries, no matter what opinions Mr Turnbull has about them. 

In the result it must be accepted that these claims also have no tenable prospects of success. 

Claimed breaches of the Universal Declaration of Human Rights 

Mr Turnbull also particularised his reliance on the Universal Declaration of Human Rights and its claimed breaches by the Council, to advance his claims. But what Mr Turnbull so claimed and what he submitted about the Declaration was somewhat contradictory. 

But in so far as he relies on claimed breaches of the Declaration, I agree with the observations of Garling J in Rahman v Dubs [2012] NSWSC 1065 at [55]-[56]. 

Contrary to Mr Turnbull’s case, I consider that his Honour was correct in observing that causes of action based on breaches of the Universal Declaration of Human Rights are not justiciable in this Court. There being no domestic Commonwealth or State legislation which makes it part of the law of NSW, a claimed breach of the Declaration is not justiciable, applying Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; [1995] HCA 20.

On appeal in Turnbull v Clarence Valley Council [2023] NSWCA 295 Court stated 

 The applicant (who identifies himself as “‘Christopher Luke’ of the family ‘Turnbull’ for the appellant ‘Christopher Turnbull’”) seeks leave to appeal against orders made on 14 February 2023 in the Common Law Division of the Supreme Court dismissing with costs proceedings commenced by him by Statement of Claim filed on 15 March 2022: Turnbull v Clarence Valley Council [2023] NSWSC 83. The applicant filed an amended Statement of Claim on 1 August 2022. He named the Clarence Valley Council (the respondent) as the sole defendant. On 17 August 2022 the respondent filed a notice of motion seeking, in the alternative: (1) an order pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) (“UCPR”) that the proceedings be dismissed on the basis that no reasonable cause of action is disclosed; (2) an order pursuant to UCPR 13.4(1)(c) that the proceedings be dismissed as disclosing no cause of action for personal injury or wrong against the second defendant (it may be that “second defendant” is a typographical error – as noted above, only one defendant is named in the Statement of Claim and the Amended Statement of Claim); or on the basis that the proceedings are an abuse of process; (3) an order pursuant to UCPR r 14.28 that the proceedings (the Amended Statement of Claim) be struck out on the basis that the Amended Statement of Claim – (a) discloses no cause of action appropriate to the nature of the pleading or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of process of the court. On 8 November 2022 the respondent’s notice of motion was fixed for hearing on 6 February 2023. On 30 January 2023 the applicant served on the solicitors for the respondent (but did not file) a document entitled “Interlocutory Application” and an affidavit sworn on 27 January 2023. In para 1 of the “Interlocutory Application” the applicant sought orders that the respondent “under Discovery ... provide written evidence” of: “(i) [the respondent’s] claim of Authority to conduct business on the land known as ‘Terra Australis’, and local areas known as ‘Bundjalung, Gumbaynggirr and Yaegl’[;] (ii) [the respondent’s] claim of Authority over ‘the claimant’, so as to make its claim over ‘the claimant’[;] (iii) [the respondent’s] claim of ownership of all its listed caravan camping grounds and parks, reserves and buildings.” In para 2 the applicant sought an injunction “to restrain or prevent the matter proceeding” until the documents sought were supplied and “a judge has ruled on each of the matters raised in 1. above”. In para 3 he claimed “and if such written evidence cannot be produced within 14 days, that the matter be ruled in favour of ‘the claimant’ and awarded in full including court costs”. As directed, the respondent’s notice of motion came on for hearing before the primary judge on 6 February 2023. The primary judge rejected the applicant’s request that his 30 January 2023 notice of motion be determined prior to the respondent’s 17 August 2022 notice of motion. As indicated above, after a contested hearing the primary judge made an order, pursuant to UCPR r 13.4(1)(b) that the proceedings be dismissed (on the basis that the Amended Statement of Claim disclosed no reasonable cause of action). 

The proceedings in the Supreme Court 

Having regard to the reasoning of the primary judge and the application for leave to appeal, it is necessary to begin by reference to the Amended Statement of Claim. 

The origin of the proceedings brought by the applicant appears to be his construction of a building, on land owned by “the grandparents of [the applicant’s] children” in the local government area controlled by the respondent. The Amended Statement of Claim begins with a narrative, recounted over more than two pages of typescript, of events said to have taken place in the early part of 2019. Put shortly, the applicant pleaded that, with the permission of the owners of the land, he had commenced the erection of a “shed” on the land, the purpose of which was to provide a workshop in which he could construct motor homes for sale. The applicant pleaded that, while he was out of the country on a short vacation, employees of the respondent had issued a “stop work” order on the construction on the basis that it was not a shed, but a dwelling, for which no development approval had been granted. The applicant recorded in the Amended Statement of Claim some confrontations with employees of the respondent. ... He pleaded that the so-called unlawful order constituted breaches of several provisions of the Local Government Act 1993 (NSW) as well as criminal offences under various provisions of the Criminal Code (Cth), including “Treatchory” (having been done with the intention of overthrowing the Commonwealth Government); conspiracy to defraud, and numerous others. The applicant also pleaded that the conduct constituted breaches (apparently of Articles 3, 8, 17 and 30) of the Universal Declaration of Human Rights. ... 

The applicant pleaded that this conduct was unlawful, that the respondent had “no legal law to exist with their self-entitled powers called Local Government Act 1993”. This, he pleaded, was because local government is not mentioned in the Australian Constitution, and because, in a referendum in 1988, Australian electors had declined to insert recognition of local government into the Constitution. The applicant then pleaded that the respondent had: “...made itself into a corporation with an ACN number, and pretended to represent the people of the commonwealth, but in fact, was not legitimate, and has been operating unlawfully ever since.” (WB 84 [58]). The applicant pleaded that the respondent had: “...made themselves the owners of all camping and caravan parks in the entire shire and made rules and regulations to keep the people under their power unlawfully when they have no right or power to empower themselves.” WB 84[59] He pleaded that, in doing so, the respondent had committed the same criminal offences as he had previously identified, and breaches of the Universal Declaration of Human Rights. The applicant next pleaded that the respondent’s conduct was “a classic case of racketeering”. He again pleaded that the respondent had committed the same criminal offences and breaches of the Universal Declaration of Human Rights. The applicant claimed “personal compensation” of $25,000,000, compensation for loss of income of $735,000, damages for loss of a stable place “for my lifestyle, workshop and place to park my life” of $128,700, personal compensation for harassment by the respondent of $100,000, and loss of tools and belongings of $15,000. (WB 87) 

On 22 November 2023 the applicant served on the respondent a “Statement and Declaration of Truth Affidavit”, which covered 43 pages of typescript. This was summarised by the primary judge as follows at [11]: “... [the applicant] states that his purpose (occupation) is ‘Galactic Emissary’; explains that he is the living man incarnated into Christopher Luke of the tribe/family/house/clan Turnbull; explains his various beliefs about matters such as the soul, the living man and competence; as well as various assertions, including about his own Universal sovereignty; deficiencies in his birth registration; that he is not lost at sea; claimed fictions; personage flowing from the Creator; and claimed violations of the Universal Declaration of Human Rights, on which he relies, despite his rejection of the United Nations. It, he says is a false authority and fictitious entity of identified claimed governments, including of this State. He also explains the reclaimed rights of his living body; private property; privacy data; as well as presumptions of claimed law on which he relied, including as to contracts, legal liability and the consequences of claimed responses, including silence.” 

The “affidavit” opened with a statement of what were said to be “internationally accepted Maxims and Principles of Law”, and, in para 2, stated: “This ‘Statement and Declaration of Truth’/‘Affidavit’ is given to all in order to; i establish, signify, proclaim, and verify the status of this living being; and ii to eliminate/deny any and all presumption by any and all fictitious, corporate or private entities; and iii to rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing upon the land ... .” (WB 257) 

There was a great deal more in the Affidavit. For example, the applicant asserted:

4 We are a cosmic consciousness, also referred to as a ‘soul’; and 

5 We are a vibrational awareness; ... 

9 We are an aspect/creation of All That Is the Supreme Consciousness, also known as the Collective Consciousness, Allah, Yahweh, Source, and/or God Almighty, hereafter referred to as ‘The Creator’ ... 

17 Our ‘soul’ has had many incarnations in this ‘Earthly’ realm.” 

There were many more pages of similar assertions. Some can be related to the claims made in the Amended Statement of Claim. The applicant gave his “purpose (occupation)” as “Galactic Emissary”. 

The proceedings in the Supreme Court 

As mentioned above, the primary judge rejected the applicant’s request that his “Interlocutory application” of 30 January 2023 be addressed before the respondent’s earlier filed notice of motion. By reference to the “Statement and Declaration of Truth”, as well as to the Amended Statement of Claim, and other evidence provided by both the applicant and the respondent, the primary judge concluded that all the applicant’s claims are untenable. Her Honour dealt with the applicant’s claims under five headings, as follows: existence and authority of the respondent; allegations of racketeering; claimed breaches of the Universal Declaration of Human Rights; alleged breaches of the Local Government Act; and damages claimed. 

Her Honour concluded, in each case, that the applicant’s claims were untenable. 

With respect to the applicant’s argument concerning “the existence and authority of [the applicant]”, her Honour concluded at [44]: “I am satisfied that despite the way in which [the applicant’s] arguments were variously advanced, there is no reasonably available argument that the Local Government Act is inconsistent with the Commonwealth Constitution, or that it or the [respondent] suffer from any illegality. The Constitution makes no reference to local government. That referenda which sought to insert such references in the Constitution failed is irrelevant to the laws made by the NSW Parliament, as its Constitution Act [1902 (NSW)] permits.” 

With respect to the applicant’s claims of “racketeering and other alleged offending”, her Honour recounted, in summary form, the applicant’s contentions, which included contentions concerning the respondent’s powers concerning land usage, the absence of prior authorisation by First Nation’s people and “the laws of God”. Her Honour considered (at [55]-[59]) that these claims also were untenable. 

Her Honour considered that the applicant’s claims of breaches of the Universal Declaration of Human Rights were not justiciable in the Supreme Court, there being no domestic, Commonwealth or state legislation making the provisions of the Declaration part of domestic law: at [60-[62]. Her Honour devoted several paragraphs to the applicant’s claim of breaches of the Local Government Act, but found that these, too, were untenable: at [63]-[76]. Her Honour then recorded the applicant’s claims for damages and concluded that there was no conceivable basis for the award of the claimed damages, noting that the applicant’s breaches of parking regulations were not disputed and that there was no basis for the applicant’s claims of illegality of the regulations. 

Her Honour considered that the “real question” was whether the applicant should be given leave to replead. At [32] she acknowledged that proceedings should not be dismissed if there may be a real question to be tried, but also recognised that, if there is a high degree of certainty about the ultimate outcome if the proceedings were allowed to go to trial and it appears that there is no legally tenable cause of action, summary dismissal is the appropriate course. Her Honour cited authority to that effect. 

The application for leave to appeal 

The applicant purported to file a notice of appeal on 25 May 2023 which he served on the respondent on 5 June 2023. At a directions hearing on 21 June 2023 the applicant was advised by the Registrar that, as the orders against which he sought to appeal were interlocutory, his proposed appeal required leave: Supreme Court Act 1970 (NSW), s 101(2)(e). On 14 July 2023 the applicant filed a Summons Seeking Leave to Appeal. The grounds of appeal are stated (in the purported Notice of Appeal, which I will treat as a Draft Notice of Appeal) as:

“1. Conflict of interest of Judge ‘Schmidt AJ’ as she did not declare that she is a member of the ‘BAR’, and did not declare that she works for ‘SUPREME COURT’ no authority. 2. Lack of due process, as the interlocutory Application was not dealt with. 3. Not given the right to be heard by a Jury. 4. No one living man can sit in Judgment of another living man. ‘MAXIM OF LAW’ 5. Unchallenged Statement and Declaration of Truth Affidavit has been breached [with reference to paragraph numbers].”

The applicant sought orders that the appeal be allowed, “the [unspecified] allegations be dismissed”, that his notice of motion “be completed”, trial by a jury, and that the matter be “reheard de novo” (WB 26). The applicant provided a Summary of Argument in support of his summons seeking leave to appeal. This document consisted of 76 short paragraphs, all except two of which state a different proposition. The propositions bear little, if any, relation to the grounds stated in the purported Notice of Appeal. I set out below samples of the applicant’s propositions, with comments. The applicant’s sixth proposition was as follows: “6. I seek leave on the basis that due process was not followed.” There was no further explanation of the failure to follow due process. It may be taken that this was a reference to the rejection by the primary judge of the applicant’s request that his “Interlocutory application” be dealt with before the respondent’s notice of motion. The determination of the primary judge to deal with the respondent’s notice of motion was both open to her as a matter of discretion, and logical. Acceptance of the respondent’s contentions could have resulted (and did result) in the termination of the proceedings. The respondent was entitled to have its notice of motion disposed of before being required to respond to the applicant’s belated “Interlocutory application”. 

The applicant’s tenth proposition was: “10. The Judge has not addressed Constitutional issues involving its validity.” This is incorrect: the primary judge, at [44] rejected the applicant’s contentions of Constitutional invalidity. The applicant’s twelfth proposition was: “12. The Judge has not addressed the Separation of Powers.” No issue of separation of powers was raised by the applicant, and his contention in the Summary of Argument is not further explained. 

The applicant subsequently submitted that:

“24. The Judge has not addressed the issue of First Nations People and their calls for Justice. ... 34. The Judge has not addressed my title of Galactic Emissary and Diplomat. ... 37. The Judge has exhibited a deliberate bias in characterising and referring to me as a ‘citizen’ or a ‘person’ and calling me ‘Mr Turnbull’ so as to bring it under a jurisdiction of her choice and not of the matter.”

The applicant has not explained the relevance of his claim to the title of Galactic Emissary. No issue was raised before the primary judge as to his status in this respect. Nor was any issue raised in the Amended Statement of Claim about First Nations people; a contention that the powers of the respondent depend on the consent of First Nations peoples was dealt with, correctly, by the primary judge at [57]: “[First Nations people] are simply not given such powers, by either the Commonwealth or State Constitutions nor any laws made under them to which he referred, even if the Council has recognised such peoples to be traditional landowners of the land falling within its local council area.” His complaints about being referred to as a “citizen”, or “person”, or as “Mr Turnbull” are not explained. 

Further propositions were as follows:

“38. The Judge has consented to the press-ganging of our land and financial assets and those of our ancestors. ... 

42. The Judge has failed to mention her oath or membership with the ‘Private Bar Guild’. ... 

44. The Judge has failed to address my agreement with the Creator and its authority over all other earth based agreements and authority. 

The meaning of “press-ganging of our land” is obscure, as is the complaint about the primary judge’s oath or membership of “the Private Bar Guild”. Neither was raised during the proceedings. No issue was raised about the applicant’s agreement with the Creator. 

This is only a small sample of the applicant’s propositions contained in the Summary of Argument. I have read and considered each of the propositions. Nothing in those propositions establishes any error on the part of the primary judge. In my opinion the primary judge correctly disposed of all contentions made by the applicant in the proceedings before her. 

At the commencement of the hearing of the application for leave to appeal the applicant provided a document setting out his “Arguments for appeal”, under 11 headings. 

The first heading was “Procedure”. The applicant referred to the decision of this Court in Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684, which is a decision concerned with apprehended bias by a judicial officer. Apart from his complaint about being referred to as a “citizen”, “a person” or “Mr Turnbull”, the applicant identified no factual basis for any apprehended bias on the part of the primary judge. The argument may relate to the ground of appeal that complains that the primary judge failed to declare her membership of “the BAR”, and that she “works for ‘SUPREME COURT’”. If the applicant’s complaint is reference to the primary judge’s asserted membership of the NSW Bar Association, there is no evidence of any such membership, and if, indeed, her Honour is a member (or associate member) of that organisation, it provides no basis for an assertion of apprehended bias. That the primary judge “works for the Supreme Court” must be obvious; the proceedings would not have been before her Honour had she not held a commission as an acting judge of the Supreme Court. The ninth heading in the applicant’s argument was “apprehended bias”. The argument made under that heading was that the primary judge did not admit the applicant’s affidavit into evidence. That assertion is incorrect. Her Honour did admit the affidavit and referred to parts of it in her judgment. 

The second heading in the applicant’s argument was “Circumstances arising during the hearing”. The applicant complained that the primary judge made “adverse observations” during the course of the hearing. The bulk of the applicant’s submissions under this heading concerned her Honour’s decision not to deal with his “Interlocutory application” before dealing with the respondent’s notice of motion. I have addressed this argument at [29] above. Under this heading the applicant also made reference to authorities concerning “undue interference by a judge”. Apart from, again, making reference to the primary judge’s determination to deal with the respondent’s notice of motion first, the applicant did not identify any instance of undue interference by the primary judge. 

The third heading in the applicant’s argument was “the opinion rule”, with reference to s 76 of the Evidence Act 1995 (NSW) and to the decision of the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. The applicant did not identify any instance in the proceedings before the primary judge in which opinion evidence was tendered and either admitted or rejected. This contention was that his affidavit: “...has to [be] accepted as it is, with all its relevance to the case, and it’s unrebutted authority, [sic] and, as the Council has failed to provide evidence requested in email of ownership and authority ... that brings the Interlocutory application into relevance as a priority, and has been requested of the court to make orders for ... [the sentence is incomplete].” The opinion rule was not invoked in the proceedings before the primary judge and has no bearing on the present application for leave to appeal. 

The fourth, fifth and sixth headings in the applicant’s argument were, respectively, “Discovery and inspection during proceedings”, “Discovery generally”, and “Relevant documents”. The applicant referred to UCPR r 21.2(1). He asserted that his “Interlocutory application” was a “document of discovery and is in alignment with rule for, order for discovery, of documents during proceedings”. That assertion is plainly incorrect. I have dealt with the primary judge’s treatment of the “Interlocutory application” at [29], above. No formal application for an order for discovery has been made and no order has been made. Discovery was immaterial in the proceedings before the primary judge, which were concerned with whether the Amended Statement of Claim disclosed any reasonable cause of action, had a tendency to cause prejudice, embarrassment or delay in the proceedings or was otherwise an abuse of the process of the court. The applicant also made reference to an Equity Division Practice Note concerning discovery. This is plainly immaterial to the present proceedings. 

The seventh heading in the applicant’s argument is “Jurisdiction”. The applicant referred to s 66(1) of the Supreme Court Act, which empowers the Supreme Court to grant orders restraining any threatened breach of contract or other injury. The applicant contended that the respondent had “breached a contract that [he] had in place”. Presumably, this was a reference to the arrangement he had with the owners of the land on which building the subject of the respondent’s “stop work” order was being constructed, which (the applicant asserts) was terminated as a result of the stop work order issued by the respondent. 

Again, the applicant’s argument was that his Interlocutory application should have been dealt with before the respondent’s notice of motion. I have disposed of this argument above. 

The eighth heading in the applicant’s argument was “Relevant evidence”, with a reference to s 55 of the Evidence Act. The applicant referred to Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 and BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 to the effect that evidence that is relevant is admissible so long as it has probative value. His complainant in this respect is difficult to identify, as the primary judge admitted, and had regard to, all of the evidence he put before her. 

As mentioned above, the ninth heading in the argument was “Apprehended bias”. I have dealt with that in conjunction with the first heading. The tenth heading in the argument is “Fraud”. The applicant cited a decision of the Supreme Court of the United States, and contended that “there is no place in Law for Fraud as outlined in the various points of Law presented to the Judge near the conclusion of the hearing, as Points of Fraud”. 

The primary judge comprehensively and correctly dealt with the applicant’s allegations in the Amended Statement of Claim that the respondent’s conduct constituted, inter alia, conspiracy to defraud and racketeering. The applicant has not identified any error in the approach taken by her Honour. 

The eleventh and final heading in the applicant’s argument was “Principals” (sic). The applicant complained that “breaches of Principles” were not dealt with (although the “principles” were not identified). 

Under this heading the applicant contended: 

“It seams [sic] that the entire last 100 years of recorded history that outlines the evidence of a global conspiracy is too much for the judge to fathom, despite the facts and science of the Covid-19 scam, and the calls of the W.E.F for a global control system of health, money, property, and genetics, by a private club that dictates to all governments, as outlined in the evidence, Yes this case can seam [sic] to be very complicated, as the councils are making deals with these private clubs, or the case can be seen very simply, as in the charges against the council of Racketeering and Fraud charges that have not been addressed by the judge, as she dismisses the Affidavit of Truth like it’s a fiction story, instead of the claimed authority as a living man, over the fiction name of the C.Q.V Trust accounts that the council uses in its course of business, as seen in the harassment and fines that the council rangers issued, once again the authority of the council to make contracts with living people is in question, as they only deal with the trust accounts and in fraud.” 

In the lengthy text that appears under this heading I can discern no identifiable error asserted to infect the reasoning of the primary judge.

Feudalism

The 1999 Scottish Law Commission report on Abolition of the Feudal System - largely given effect through legislation the following year - considered entails, tenure and other matters alongside an exploration of 'The rise and fall of the feudal system'. 

 1.7 The feudal system of land tenure depended on the theory that all land was ultimately owned by the Sovereign. The Sovereign would feu out lands to be held by vassals in return for military services. The vassals would sub-feu on the same basis to vassals of their own, who might in turn sub-feu, and so on downwards in an ever-widening pyramid. The relationship between superior and vassal was a continuing relationship with reciprocal rights and obligations, originally the rendering of military service by the vassal and the provision of a secure tenure and military protection by the superior. The feudal system of land tenure was not confined to Scotland. Indeed it came to Scotland comparatively late in its development. Its spread over much of Europe was a remarkable phenomenon. It could not have achieved such success if it had not met the needs of the times in an efficient way. But times change. The feudal system has now been abolished and superseded practically everywhere. In France it did not survive the Revolution. In England it was substantially dismantled in the seventeenth century, leaving a complicated system of different kinds of "estates in land" which was later greatly simplified by a series of statutes culminating in the Law of Property Act 1925. 

1.8 In Scotland the system survived but only because it became commercialised and, eventually, attenuated and debased. The first stage was the disappearance of the military element. Armies were no longer raised by relying on feudal obligations and the overtly military type of feudal tenure was gradually replaced by a type of feudal tenure (known as feu farm) under which the dues to be rendered to the superior were entirely in the form of money or goods. There was a significant reform in 1746 when the Tenures Abolition Act abolished entirely the old, and originally military, form of tenure known as ward holding. Lands formerly held on that tenure from the Crown were to be held on blench holding (for one penny Scots per year, if asked only) and lands formerly held on ward holding from a subject superior were to be held on ordinary feu farm tenure for an annual feuduty in money or goods. 

1.9 A series of further reforms in the 19th century removed some obsolescent relics in the feudal system, such as the formal ceremony of the giving of sasine, and did much to simplify the remarkable complexities of feudal conveyancing. Reforms in the present century have improved the vassal's rights and reduced those of the superior. From an economic point of view the vassal with dominium utile can virtually be regarded as outright owner. In most cases the rights of superiors are valueless, or at least worth less than the cost of conveying the superiority. As a result, when a superior dies, the heirs may not bother to lay claim to the titles. However, the theoretical structure remains. There is still a notional pyramid of interests in land with the Crown, the paramount superior, at the top and the owner of the dominium utile at the bottom. Each intermediate level in the pyramid is a separate estate in land, a mid- superiority or dominium directum, owned by a person who is a feudal superior in relation to the owner or owners at the level below and a vassal in relation to the owner or owners at the level above. The system is inherently and unnecessarily complex, involving as it does multiple "owners" of the same piece of land. 

1.10 Just as important as the legal reforms have been changes in the functions performed by the feudal system. In the days before building societies, it provided a way of buying property for a reduced capital sum coupled with a substantial feuduty. Superiorities which carried the rights to feuduties came to be regarded as secure and attractive investments at a time when investment opportunities were much more limited than they are now. Many superiorities passed into the hands of financial institutions and other bodies with large investment portfolios.10 The feudal system also provided a form of private planning control, particularly in urban areas, at a time when other forms of planning control were non-existent. The urban landscape of Scotland owes a great deal to this function of the feudal system. From the vassal's point of view the system offered perpetual tenure, generally regarded as preferable to holding on a long lease which would eventually run out. 

1.11 The feudal system of land tenure now exists in only a shadowy form. Most feuduties have been redeemed.  Even before the redemption scheme began to extinguish feuduties on a massive scale, feudal superiorities had ceased to be regarded as an attractive investment. Fixed feuduties were at the mercy of inflation and the small sums now due in many cases are often more trouble to collect than they are worth. The town and country planning function of the feudal system has become distorted. The role of the superior is often less that of restraining building than of charging money for allowing it. Privately enforceable restrictions on the use of land in the form of real burdens still have a useful role to play, subject to appropriate restrictions and safeguards, in supplementing the planning law in minor or local matters but such real burdens do not have to be linked to the feudal system.They can be enforceable by the neighbouring owners who have an interest to enforce them. Superiors are often remote. Indeed, they are increasingly unknown to the vassal. Even the minimal link which resulted from the annual payment of feuduty has largely disappeared with the progressive redemption of feuduties. 

1.12 Although an empty shell for most practical purposes, the system is still susceptible to abuse. It is also a continuing source of unnecessary complications in Scottish property law. 

Earlier recommendations for abolition 

1.13 In 1966 the Halliday Committee on Conveyancing Legislation and Practice recommended that all existing feus should ultimately be converted into holdings direct of the Crown, all intermediate superiorities being extinguished. The Government later concluded that feudal tenure should be abolished completely subject only to certain rights vested in the Crown.  Unfortunately this was not done. The legislation which followed from these deliberations introduced important reforms but stopped short of complete abolition of the feudal system of land tenure. It did, however, pave the way for abolition by (a) providing a mechanism for dealing with outdated or restrictive real burdens (b) prohibiting the creation of new feuduties (c) conferring a right to redeem feuduties voluntarily and (d) providing for the compulsory redemption of existing feuduties on the next sale of the property in question. 

Our discussion paper 

1.14 Our Fourth Programme of Law Reform contained an item on "property law". Under this heading the Commission said that its first objective was "the consideration of land tenure law reform with a view to the completion in due course of statutory reform of feudal tenure".  In pursuit of this objective the Commission published a discussion paper20 which sought comments on "the formulation of a new system of land tenure in Scotland to replace the existing feudal system and on ways of effecting a transition to the new system". 

1.15 The great majority of the responses to the discussion paper supported the principle of the abolition of the feudal system, although some specialist commentators raised issues, largely of a technical kind, which required further consideration. The responses to the consultation and the further work which had taken place on the preparation of a draft report enabled the Commission to state firmly in its Fifth Programme of Law Reform that its aim was the complete abolition of the feudal system of land tenure and its replacement with a modern system. 

The case for abolition 

1.16 From the point of view of social policy the main reason for recommending the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money. Superiors who have no actual interest in the enforcement of real burdens can extract money from vassals for granting waivers of their right to insist on observance. This practice has continued notwithstanding the power of the Lands Tribunal to vary or discharge unreasonable or unduly burdensome land obligations.  A burden on the vassal's title which is on the face of it enforceable by the superior has a nuisance value even if the burden would in all probability be discharged by the Lands Tribunal. Superiors are still able to charge a sum which takes into account the trouble, delay, expense and uncertainty involved in seeking a variation or discharge from the Tribunal. Indeed even burdens which are manifestly invalid or unenforceable have a nuisance value to the superior which can be turned into money. The practices of many superiors in relation to the charging of fees for waivers have given rise to frequent complaints and demands for reform. 

1.17 There are other reasons of a more technical nature for recommending abolition. Even if it were not susceptible to abuse for monetary gain the feudal system would be in need of reform. It now serves no useful function. It has become an anachronism which needlessly complicates the law.  Abolition is an essential first step in any more general programme of land reform. No country with any interest in the state of its laws would wish to carry forward such a system into the next century. 

1.18 It has sometimes been suggested that the feudal system should be modified rather than abolished and that all existing feudal holdings of land should be converted into holdings direct of the Crown. It was argued by one respondent to our discussion paper that the abolition of the paramount superiority of the Crown would diminish the constitutional position of the Crown in Scotland. We think that this argument is misguided. There is no reason why complete abolition of the feudal system of land tenure should have any effect on the constitutional position of the Crown. We recommend provisions expressly designed to ensure that the Crown's prerogative rights as sovereign and head of state are undiminished.  It would be illogical, inconsistent and artificial to retain the highest element in the feudal system of land tenure while abolishing all the lower elements. 

1.19 In short, abolition of the feudal system of land tenure would remove archaic features of the Scottish system of conveyancing and land ownership which either serve no useful purpose or are positively harmful. It would bring legal theory into line with practical reality. It would finally eliminate feuduties from Scottish land law. It would greatly simplify that law and pave the way for further reforms. 

Some essential definitions 

1.20 The feudal system of land tenure. By the "feudal system of land tenure" we mean the system whereby land is held by a vassal (who owns the dominium utile) on perpetual tenure from a superior (who owns the dominium directum) who may in turn hold from another superior, and so on up to the Crown or Prince and Steward of Scotland. This form of tenure falls to be distinguished from the position of a tenant under a lease. Leases, although sometimes very long, are not perpetual,26 and do not involve the relationship of superior and vassal. It also falls to be distinguished from allodial tenure where the land is owned outright, without any link to the Crown as ultimate superior. The main example of allodial tenure is the udal system still found in Orkney and Shetland. 

1.21 Land which was acquired by the Crown by conquest, feudal custom, annexation or other means, but which has never been feued out by the Crown, is not within the feudal system of land tenure as here defined. Crown rights to such land, even if originally derived from feudal might or feudal custom, are not held of a superior and are not within the feudal system of land tenure as defined for the purposes of this report. 

1.22 Land. By "land" we mean not only surface land (including land covered by water) and the buildings and other structures which accede to it, but also the separate tenements which are capable of being held on feudal tenure under the present law. These include flats in tenement buildings, minerals under the ground, and the right to fish for salmon, as well as some more esoteric subjects. 

1.23 The appointed day. At various points in this report and in the draft Bill reference is made to "the appointed day". This is the day on which the main provisions of any Act based on the draft Bill would be brought into force. It is the day on which the feudal system of land tenure would be finally abolished. The date would be fixed by the appropriate Minister. For practical reasons it should be either 28 May (Whitsunday) or 28 November (Martinmas) because these are the dates on which feuduties are normally payable. We envisage that the appointed day would be sufficiently long after the date when the Act is passed to give people time to make any necessary arrangements to adapt to the new law. In some cases, for example, provision is made for rights to be reserved by registering a notice.Time would need to be allowed for this to be done. A period of two years would in our view be sufficient but we do not recommend any specific period. It is useful to retain a degree of flexibility at this stage. 

Our main recommendations 

1.24 In this report we recommend the abolition of the feudal system of land tenure and its replacement by a system of outright ownership.  Vassals would become owners. Any feudal estate ofdominium utile would be converted into simple ownership of the land. All remaining feuduties would be extinguished.  Real burdens in grants in feu (such as restrictions on the use to be made of the property) would cease to be enforceable by superiors. Superiors would disappear. However, we recommend  that a former superior who owns neighbouring land should be able, subject to restrictions and within time limits, to register a notice preserving real burdens in favour of that land. Such preserved burdens could then be enforced as non-feudal burdens provided that the former superior, as owner of the neighbouring land, had an interest to enforce them. We also recommend that where a feudal real burden provides for the maintenance of a common facility it should be enforceable after the date of abolition of the feudal system by the owners of the benefited properties.Otherwise there would be cases where the only person entitled to enforce the burden was the superior and where, consequently, the burden would cease to be enforceable, to the detriment of all the affected properties. We also recommend the preservation of certain real burdens imposed for conservation purposes by bodies on a list to be established by the Secretary of State; and of certain burdens affecting the sea bed or foreshore.These are important, but also exceptional, cases. Most real burdens would fall with the feudal system itself. 

1.25 We recommend that compensation should be payable to superiors for the loss of the right to feuduties and for the loss of the right to certain real burdens which reserve development value to the superior.  We do not, however, consider that compensation should be payable for the loss of exploitation rights, by which we mean the right to exact money from vassals by charging for waivers of conditions which the superior has no desire to enforce and which were not imposed in order to reserve development value to the superior. 

1.26 In the existing law there are certain forms of tenure and types of payment which are similar to feudal tenure and feuduties. We recommend the abolition of the form of tenure known as Kindly Tenancies.The holding of land on this form of tenure will be converted into ownership, which it already is for practical purposes. We also recommend the abolition of such payments as ground annual, skat, teind, stipend and standard charge.  The abolition of teinds, stipend and standard charge cuts away the basis of some statutory provisions and these too will be repealed. The practical effect is to enable some obsolete legislation concerning former methods of funding parish churches to be repealed.  We do not, however, recommend the abolition of udal tenure. This is already non-feudal ownership. 

1.27 We recommend the abolition of entails, already defunct in practice.39 This will enable many obsolete statutory provisions to be repealed. 

1.28 The abolition of the feudal system of land tenure affects the law on the transfer of land in important ways. The draft Bill appended to this report contains new provisions40 on the way in which the ownership of land may be transferred and contains many consequential amendments and repeals.41 It also contains many repeals of obsolete conveyancing provisions. Some of these repeals are not strictly consequential on the abolition of the feudal system. However, abolition has provided a convenient opportunity for clearing out whole areas of obsolete law.

The section on entails states 

9.8 Entails, or tailzies, were at one time commonly used to keep lands in the same family for generations. A feudal grant of land would be made in such a way that the succession to it was strictly regulated and protected. For example, the deed might provide that on the death of the owner the land was to pass to his eldest son or other male heir and so on for subsequent owners. At any one time there would often be an heir in possession and an heir apparent who could expect to succeed to the lands on surviving the heir in possession. The stipulated line of succession would be secured by provisions, called the fetters of the entail, whereby any attempt by the heir in possession to interfere with the succession or to reduce the extent or value of the estate, for example by selling or feuing or burdening the property or even, in some cases, granting leases, resulted in the lands passing immediately to the next heir. 

9.9 The lawfulness of entails of feudal land was established by the Entail Act or "Act concerning Tailyies" of 1685. This Act also established a register of tailzies - later known as the register of entails. 

9.10 The disadvantages of tying up land by strict entails quickly became apparent and a long succession of statutes, beginning with the Entail Improvement Act 1770, gradually increased the powers of the heir in possession to deal with the land in ways inconsistent with the fetters of the entail. In the 18th and early 19th centuries there were also numerous private Acts of Parliament to enable heirs of entail to sell or burden the entailed estates for the payment of debts. The judges were hostile to entails. The Court of Session developed a rule that the provisions of entails were to be interpreted strictly, and many lands were effectively disentailed by judicial construction. 

9.11 the preamble that A significant reform was introduced by the Entail Amendment Act 1848 which, with "the law of entail in Scotland has been found to be attended with serious evils, both to heirs of entail and to the community at large" introduced provisions enabling heirs in possession to disentail the lands. An heir born after the date of the entail (if the entail was dated after 1 August 1848) or after 1 August 1848 (if the entail was dated before that date) could disentail without any consent. In other cases the consent of the heir next in succession was required. The procedure was by application to the Court of Session for authority to execute, and register in the register of tailzies, an instrument of disentail. The effect was to remove the fetters of the entail. The heir in possession was placed in the same position as a full owner. The special destination in the titles remained in force but the owner could defeat it by disposing of the property or altering the succession to it. See the Chronological Table of Private and Personal Acts 1539-1994. 

9.12 Acts of 18756 and 18827 enabled even those heirs in possession who required consent to obtain the authority of the court to disentail without the consent of any succeeding heir provided that the value of the interest of any such heir was ascertained and paid or secured on the land. Finally, the Entail (Scotland) Act 1914 prohibited the creation of new entails after 10 August 1914. 

9.13 Entails have for a long time had serious disadvantages from the point of view of tax planning. Heirs of entail will normally have been advised decades ago to take advantage of the facilities for disentail. There must be few, if any, entails still in existence. Any heir of entail in possession born after the date of the entail can now disentail without any consent or payment of compensation. Given that all existing entails must have been dated before 10 August 1914 there must be few, if any, cases where there is an heir of entail in possession who was born before the date of the entail. Even if there are any, they can disentail without the consent of the heir next entitled to succeed if the value of that heir's interest or expectancy is ascertained and secured on the land. 

9.14 The result of the long history of statutory intervention in relation to entails is that there are some twenty statutes still in force to deal with an area of the law which has become obsolete. Many of these statutes contain feudal language which would have to be amended to deal with the consequences of the abolition of the feudal system of land tenure. We concluded that this would be a pointless exercise and that, rather than amend the entail statutes to remove feudal terminology, we should recommend the ending of entails and the repeal of all this obsolete legislation.  We were confirmed in this view by consultation with the Keeper of the Registers, the Law Society of Scotland and some firms of solicitors known to represent large landed estates or to have acted in relation to entails in the past. 

9.15 We have considered the question of compensation. For the reasons given above it seems likely that any remaining entailed estates could be disentailed under the existing law without any consents and without the need to pay compensation. Only if the heir in possession was born before the date of the entail (which must have been before 10 August 1914) could there be any question of compensation. We doubt whether any provision for compensation would be used. However, it can do no harm to err on the side of caution and to include a provision. An appropriate mechanism would be a claim to the Lands Tribunal for Scotland within two years after the appointed day. The Tribunal would have power to value the claim and to order the amount to be secured on the land for the benefit of the claimant in such manner as they might think fit. Normally the date of payment out of the lands would be the death of the current owner. If the owner chose not to alter the succession - so that the  next heir succeeded in any event - the secured amount would cease to matter because it would be due to and by the same person. 

9.16 The Keeper of the Registers suggested that provision should be made for the formal closure of the Register of Entails and for its transmission to the Keeper of the Records of Scotland for preservation. Otherwise there might be continuing applications for the registration of old deeds relating to entails. It appears that applications for the registration of pre-1914 deeds of entail continued to be received for decades after new entails were prohibited by the Entail (Scotland) Act 1914. We agree with this suggestion.

Activism and NZ Administrative Law

Hammond J in Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385; [2009] 1 NZLR 776 states 

 [348] I agree with the result of this appeal as set out in the judgment of Arnold J and, in general, with the reasoning by which that result was arrived at. 

[349] Because this is an important administrative law case, I propose to add some broad comments on the proper scope of judicial review in a case such as this. I emphasise that they are not intended to detract from the actual resolution of this case as set out in the judgment of Arnold J, to which the entire panel has subscribed. 

[350] As a matter of convenience, I have grouped my comments under four heads, which might be called four “P’s”: the point of entry of judicial review; the purpose of judicial review; the principles of judicial review; and the place of judicial review in New Zealand today. I will then add some brief comments on this particular case. 

The point of entry of judicial review 

[351] The point at which judicial review may be resorted to is a matter of distinct importance. While, in principle, any decision of a public nature is potentially reviewable, there seems to be a growing misconception that just about any decision is amenable to judicial review. However, there are some “no-go” areas, as well as “twilight” contexts which have occasioned real, and still largely unresolved, arguments as to the appropriateness of making judicial review available in those areas. 

[352] One of these twilight areas is public sector contracting, where governmental bodies provide or arrange for the provision of services to the public by means of contractual relations with private sector enterprises. “Government by contract” has had major ramifications for administrative law theory and practice as it has become the dominant paradigm for the provision of public services over the last quarter of a century. See Harlow “Law and New Public Management: Ships that Pass in the Night” in Gordon (ed) Judicial Review in the New Millenium (2003) at 5 – 18; McLean “Contracting in the Corporatised and Privatised Environment” (1996) 7 PLR 223; and Allars “Administrative Law, Government Contracts and the Level Playing Field” [1989] UNSWLawJl 7; (1989) 12 UNSWLJ 114.

[353] Leaving to one side any applicable statutory provisions, the problem for the law, stated in the simplest terms, is whether to apply private law principles, public law principles, or some admixture of the two. See, for example, Oliver Common Values and the Public-Private Divide (1999) and Taggart “‘The Peculiarities of the English’: Resisting the Public/Private Law Distinction” in Craig and Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (2003) 107 at 120. Some commentators have suggested that the courts should develop a stand-alone set of “government contract” principles which are to be applied. See, for instance, Davies Accountability: A Public Law Analysis of Government by Contract (2001). For a comparative common law and continental perspective, see Auby “Comparative Approaches to the Rise of Contract in the Public Sphere” (2007) PL 40. 

[354] There has been real ambivalence on the part of both commentators and courts on this issue. Professor Freedland, a prominent commentator on “government by contract”, started out by arguing for the application of public law principles: “Government by Contract and Public Law” (1994) PL 86. Yet more recently, Professor Freedland has oriented his overall approach more firmly in the direction of private law (“Government by Contract Re-examined – Some Functional Issues” in Craig and Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (2003) 123 at 133): My real reason for sketching out an area of public/private enterprise law, which is not specially oriented towards public law, is not so much the view that ‘government by contract’ should be regulated by a body of law which is not specially oriented towards public law, but rather a prediction that English law will on the whole tend to generate a mixed but private law-based body of law for that purpose. Indeed, Professor Freedland now goes so far as to suggest that (at 134): ... we might expect that the techniques of private law in the areas of contract, tort, and restraint of trade will be the tools mainly used to address issues arising from the tension or conflict between the public contracting role and the public/private market-making function, and that our primary concern should be to ensure that these private law-based instruments are tuned to register the sound of public interest. 

[355] A contrary view can be found in Collins Regulating Contracts (1999), which argues that markets do not provide an appropriate mechanism for distributing public services and questions the efficacy of contract law principles in this area. For a critical discussion of Collins’ analysis, see Cane “Administrative Law as Regulation” in Parker and others (eds) Regulating Law (2004) 206 at 210 – 213. 

[356] Unsurprisingly, courts have had the same sort of difficulties as to what approach the law should adopt. As a general proposition, which I can only sketch here, the early cases around the British Commonwealth and in New Zealand did not favour judicial review. But some courts then began to adopt a stance that judicial review is available if there is a sufficient “public” component. The high water-mark of that approach is R v Panel on Take-overs and Mergers, ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815 (CA) which evidenced a shift from a “source of the power” test for reviewability to a “nature of the function” approach: Hunt “Constitutionalism and the Contractualisation of Government in the United Kingdom” in Taggart (ed) The Province of Administrative Law (1997) 21 at 29. In the “government by contract” context, that kind of thinking rests on a market contract paradigm which somehow becomes sufficiently suffused with public characteristics, or has a sufficient impact on the public, so as to render events attendant on it reviewable. 

[357] With respect, this analysis is much too simplistic. The stereotype of the market contract involves a purchaser going into a market, which offers many opportunities (or service providers) for the transaction in question. That purchaser then has the option of purchasing the services in question either in a single transaction or a number of distinct transactions. 

[358] There are, however, two characteristics which differentiate “government by contract” from the market orthodoxy. The first is that government contracting arrangements are functionally a form of regulation. (This conclusion is shared by Walsh and others Contracting for Change: Contracts in Health, Social Care, and Other Local Government Services (1997).) The second is that these kinds of agreements are a classic example of what I have referred to elsewhere as “relational” contracts: Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 8 TCLR 612 at [93] (HC). The contracting parties routinely provide that the contract will run for some time, involving ongoing evolutionary elements, and obligations of good faith and the like. In short, they are not closed market contracts. Moreover, the government has a powerful interest in ensuring that goods or services are supplied in accordance with a contract. If a contractor defaults, the continuity of essential public services may be jeopardised. Thus, these contracts involve what we could loosely call wider public interests. 

[359] The characteristics I have noted might suggest that, as with any other government activity, government contracting should ultimately take place within a framework of public law precepts, modified to the particular contractual and statutory context, but nonetheless underpinned by constitutional values such as respect for the rule of law and democratic principles. But the pull in favour of private law still remains strong. 

[360] My purpose in making these general points is not to attempt to resolve the present case in an abstract way. Each case will have its own complexities, as Arnold J has convincingly demonstrated, and the statutory and contractual context will be of the greatest importance. My concern is that I would not want it to be thought in other cases that, on the basis of what has happened in the case in front of us at this time, counsel can automatically assume reviewability in this subject area. 

[361] In this case, we are faced with a somewhat unusual position. Typically a case of the kind which is before us would have attracted strenuous debate as to its amenability to judicial review in the first place. Here, both Diagnostic Medlab Limited (DML) and Lab Tests Auckland Limited (Lab Tests) have accepted that judicial review is appropriate. But they are poles apart as to why and how reviewability should come into play. For Lab Tests, Mr Curry takes a very narrow line. He contends that the wider arguments as to reviewability do not really matter very much in this case because the only possible ground for review is the admittedly narrow statement of Lord Templeman, for the Judicial Committee of the Privy Council, in Mercury Energy Ltd v Electricity Corporation of NZ Ltd [1994] 2 NZLR 385 at 391 that “[i]t does not seem likely that a decision by a [SOE] to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.” Mr Hodder, on the other hand, doubtless delighted to have got over the preliminary hurdle of reviewability without opposition, has advanced a far-reaching basis for judicial review: namely an ability in the High Court to constrain, at least in some respects, decisions “tainted by a serious lack of integrity, i.e., fraud, corruption, bad faith or any other material departure from accepted public sector ethical standards which requires judicial intervention” (emphasis added). I will enlarge on what Mr Hodder meant by that later in this judgment. 

The purpose of judicial review 

[362] Broadly, there are two schools of thought about the Judge’s task when engaged in judicial review. 

[363] The traditional stance is that the Judge’s predominant task is to ensure that administrative authorities remain within the powers granted to them by law. Whatever the Court may do by way of judicial intervention, that intervention must be linked, in one way or another, to the legal powers of the relevant public authority. This orthodox approach to administrative law has been defended, most magisterially, by Sir William Wade: Wade and Forsyth Administrative Law (9ed 2004) at 4-5. There can hardly be any argument that the legality principle is the first and most important limb of judicial review. While cases decided under the legality rubric routinely throw up difficult issues of statutory construction, that is nevertheless a “comfortable” task for a court, which can set about it without any disconcerting suggestion that the court is outside its proper bailiwick. 

[364] On this traditional approach, the only long stop for challenging the decision itself, as opposed to what led to it, was so-called Wednesbury review for unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (CA). The primary decision is that of the first instance decision maker and courts have a highly constrained ability to interfere with respect to the decision actually taken. 

[365] Wednesbury review is logically circular, distinctly indeterminate and functions as a “cloak” which, on the one hand, has the potential to seduce lawyers and courts into the merits rather than legality of decisions and, on the other hand, can lead to abject caution. See Le Sueur “The Rise and Ruin of Unreasonableness?” (2005) JR 32 at 32 and, more generally, Taggart “Reinventing Administrative Law” in Bamforth and Leyland (eds) Public Law in a Multi-layered Constitution (2003) at 311 – 335. Famously, Lord Cooke of Thorndon in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 (HL) regarded Wednesbury as (at 549): ... an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd. 

[366] Instances of successful intervention on the basis of Wednesbury unreasonableness appear to be much more common in the United Kingdom than in New Zealand. In “The Rise and Ruin of Unreasonableness?” (above at [365]), Le Sueur observes that close to half of the Wednesbury unreasonableness/irrationality cases (some 40 cases) heard between January 2000 and July 2003 in the UK succeeded on those grounds (at 44 – 51). Even then, Lord Woolf has suggested extra-judicially that judicial review is still excessively executive-friendly in the UK: “Judicial Review – The Tensions Between the Executive and the Judiciary” in Campbell-Holt (ed) The Pursuit of Justice (2008) 131 at 142. In New Zealand, success under this head is a distinct rarity. I am reminded of an observation by Bauer CJ in the United States of America: the decision must “strike us [as] wrong with the force of a five-week old dead, unrefrigerated fish [to attract review]” (Parts and Electric Motors Inc v Sterling Electrical Inc 866 F2d 228 at 233 (7th Cir. 1988; cert. denied, 493 US 847 (1989)). 

[367] The second, and more modern, school of thought challenges the traditional orthodoxy. At heart it holds that High Court judges have always had, and still have, an independent capacity to intervene by way of judicial review to restrain the abuse of power and to secure good administration. Protagonists of this school of thought include, amongst commentators, Professors Oliver and Craig in the United Kingdom, and Professor Cane in Australia. Amongst the senior judiciary its adherents include Sir John Laws and Sir Stephen Sedley. At rock bottom the broad concern is to identify what might be termed “core public law values” and secure better governance. 

[368] Again, these two schools of thought are reflected in the position of the parties before us: Mr Curry stands firmly on what I have called the “traditional” orthodoxy while Mr Hodder on this occasion advances a thoroughly “modernist” argument. 

[369] As a matter of fairness, to exercise a putative right of reply for Mr Curry, there are a number of decisions in courts of the highest authority (particularly the High Court of Australia) to the effect that judicial review should not allow courts to impose ideas about “good administration” or “good governance” on the executive or other governmental bodies. Historically, or so the argument runs, judicial review involved a “power grab” by the courts which is bearable and even beneficial, so long as it is kept within its traditional bounds and goes no further than it already has. 

[370] In light of this division, it is obvious that one of the fundamental difficulties which afflicts judicial review is that there is a widespread disagreement about the fundamental task of the reviewing judge. It is true that all basic building blocks of the law attract some measure of disagreement about “purposes”, but none have the difficulties, or the “edge” that judicial review attracts, given its impact on government and governance. And when fundamental disputes about “purpose” are leavened with confusion as to the principles on which courts will intervene (often called the “grounds for review”), the state of the law is rendered distinctly problematic. 

The principles of judicial review 

[371] The Chief Justice of New Zealand, writing extra-judicially, has suggested that “the Courts are largely adrift” in dealing with cases where the decision maker has (to put it broadly) got the decision wrong: Elias “The Impact of International Conventions on Domestic Law” (Address to the Conference of International Association of Refugee Law Judges, March 2000) at 8. 

[372] The nautical metaphor can be pressed further. William Prosser, the doyen of American torts scholars, once recounted something said by a West Coast North American Indian sitting on a rock and looking out to sea: Lighthouse, him no good for fog. Lighthouse, him whistle, him blow, him ring bell, him flash light, him raise hell; but fog come in just the same. Prosser went on: That quotation has been haunting me. I have the feeling that it has some application to something connected with the law, but I do not know exactly what. I have shown it to a number of lawyers, and some of them have told me that it summarizes for them a lifetime of argument before the courts. Some of the judges seem to think that it describes the thankless task of writing opinions for the bar to read. To some morose and melancholy attorneys it calls at once to mind their relations with their clients. One man was sure that it must have something to do with the income-tax regulations, although he was by no means clear as to precisely how. Among only one group have I found general and enthusiastic agreement. I have yet to show that quotation to any professor of law who did not immediately say, with a lofty disregard of the laws of English grammar, “That’s me!” See “Lighthouse No Good” (1948) 1 J Leg Ed 257 at 257. 

[373] The public law practitioner could also say: “That’s me!” The reason is that judicial review is a critically important beacon and guard against abuses of power. But it does presently stand in something of a fog of mushy dogma. And lighthouses do not work by themselves. They function effectively only in concert with complete and precise charts. It is a pressing task for the courts to ameliorate the problem of fog in judicial review. 

[374] There is one possibility I can get out of the way at the outset. Every so often a senior judge attempts to formulate a unified theory of judicial review, by reducing everything to one theorem. 

[375] One example was the extra-judicial suggestion by Sir Robin Cooke (as he then was) that “it might not be an altogether absurd over-simplification to say that the day might come when the whole of administrative law could be summed up in the proposition that the administrator must act fairly and reasonably”: “The Struggle for Simplicity in Administrative Law” in Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 1 at 5. 

[376] More recently, in “Administrative law in Australia: Themes and values” in Groves and Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 15, the newly appointed Chief Justice of Australia, Robert French, has suggested that (at 23): ... [A]dministrative justice in the sense administered by the courts may be identified as follows: Lawfulness – that official decisions are authorised by statute, prerogative or constitution. Good faith – that official decisions are made honestly and conscientiously. Rationality – that official decisions comply with the logical framework created by the grant of power under which they are made. Fairness – that official decisions are reached fairly, that is impartially in fact and appearance and with a proper opportunity to persons affected to be heard. The learned Chief Justice explicitly gives his “grand theory” objective (and background in physics) away, when he goes on to note that “the identification of these elements of administrative justice is a little like the identification of ‘fundamental’ particles in physics” (at 24). 

[377] Even senior appellate courts are not immune from this sort of approach. Recently, the Supreme Court of Canada opted for a dual standard of review, “correctness” and “reasonableness”, which one suspects will bring its own very real share of difficulties: Dunsmuir v New Brunswick 2008 SCC 9 at [34]. 

[378] Both practitioners and representatives of governmental bodies will rightly state the obvious: that grand theorem approaches fail to drill down far enough to enable respectable advice to be given to parties who are supposed to abide by the law. In short, better charts are needed, without simply exchanging one shibboleth for another. 

[379] Another concern is that things like spectrums of response and “deference” in this subject area are ultimately quite unhelpful, and even unworkable. To say that something rests somewhere on a “continuum” is a conclusion, not a principle; it does not tell us how that point in a spectrum is reached. And courts do not defer to anything or anybody: the job of courts is to decide what is lawful and what is not. 

[380] As far as the grounds of review are concerned, the difficulty stems partly from the lack of an agreed classification or taxonomy, accompanied by properly developed substantive principles as to when a court will intervene by way of judicial review, particularly in “merits” cases. Then too, there will always be problems of application in the law, but when the underlying principles are obfuscated, there is cause for real concern. The costs of litigation are extremely high in this area, and “uncertainty” is, I think, a major contributing factor to those costs. This in turn restricts access to the courts, which is most undesirable in judicial review. 

[381] Perhaps the best way to understand the concerns which judicial review endeavours to reach is to consider the various grounds in functional rather than doctrinal terms. One good reason for a functional rather than doctrinal analysis is that it helps to transcend unhelpful semantic or terminological quibbles. 

[382] First, there are procedural grounds of review. These focus on the conduct of the decision maker and include procedural fairness requirements, fair hearing rules, and rules against bias. These sort of rules are well enough settled. 

[383] Secondly, there may be concern over the decision maker’s reasoning processes. This is where the vast majority of judicial review cases fit given that it includes things like misappreciation of the law; unauthorised delegation; and the perennial problem of control of the exercise of a discretion. All of this is the stuff of legality and everyday lawyering and, in fairness, the principles “fog” is not at its densest here. 

[384] Thirdly, there are grounds which in one sense or another relate to the decision itself, rather than the procedures adopted or the reasoning process. This is easily the most contentious functionalist category of the grounds for judicial review. The argument here is that there should be substantive grounds of review, even where a decision maker has assiduously followed all required procedures and has made no errors of reasoning. But here the fog is presently a “pea souper”. 

[385] One thing should be said at the outset. Every so often some commentator suggests that “activist” judges are somehow intent on taking over and making “merits” decisions for themselves. However, in my experience, judges do not like making merit decisions. They are relieved when “government” makes a clear or at least workable decision. Knowing – or purporting to know – what is best for somebody or something else is a dangerous enterprise; judges, of all people, see in their daily work instances of ill or insufficiently considered actions which can cause great difficulties in the lives of others. And they appreciate that judicial review is not an appeal: it is a “review” of what has occurred, but with an emphasis upon principles which ought, in terms of Prosser’s fog metaphor, to be respectably well defined. 

[386] If, therefore, judges are going to approach the merits of a decision, the analysis has to be undergirded by something other than concern about the decision as such. That is, there has to be something or some things in a sense standing “outside” the particular decision which rightly attracts judicial concern. The most obvious candidate is the concept of abuse of power, which lies at the very heart of administrative law. See Sedley LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498; [2008] QB 365 at [60] (CA): “[Abuse of power] is what the courts of public law are there to identify and, in proper cases, to correct ...”. The French would say that abuse of power is a stand-alone type of illegality: see Auby “The Abuse of Power in French Administrative Law” (1970) 18 Am. J. Comp. L. 549. The term “abuse of power” should not be understood as necessarily pejorative: to act outside one’s powers, in genuine error, is still an abuse of power and the traditional “four-corners” doctrine reels in the large majority of abuses of power. The central issue is, what beyond that orthodoxy ought to be addressed, and how? 

[387] There is here a preliminary issue which has vexed pre-eminent social and political philosophers worldwide, and is an issue for lawyers: the very nature of power. There are broadly two possible responses. 

[388] The continental school tends to see power as a thing in itself. De Tocqueville suggested that it is men who build up institutions and enslave themselves in a universally tragic way. M de Jouvenal in Du Pouvoir treated power as if it is a morbid pathology, rather like a terrible god with deterministic outcomes. The notion of power as a thing in itself can be seen in the writings of Kant and Nietzsche. [389] The English school is more pragmatic: it does not see power as a thing in itself. Lord Radcliffe of Werneth put it wonderfully well in Lecture VII of his 1951 Reith Lectures (published as The Problem of Power (1952) at 99 – 100): Take away the abstract idea and there remains nothing but the conduct of men, human beings, who occupy in their turn the seats of authority. It does not seem to me that there is only one possible attitude towards authority or one inevitable set of rules that govern its exercise. Attitudes change with the social conditions which surround authority and, as we have seen, men in their turn exalt and denigrate power under the impulse of their general attitude towards life itself. You can see it your own way, so long as you know what that way is. It reminds me of an old saying: ‘Take what you want’, said God; ‘take it, and pay for it.’ 

[390] If Lord Radcliffe is right, and I think he is, it would follow that it ought to be possible to do something practical about the problem of abuse of power through the development of distinct substantive principles in relation to merit decisions. 

[391] It is not possible in a judgment to describe what a full scheme of principles based on that fundamental objective might look like. But the law is already moving slowly in the direction of building on that concept. For instance, one area which is now relatively well recognised by the Anglo-New Zealand judiciary is that, in the area of human rights, an otherwise lawful response must still be a proportionate one. 

[392] Another possible doctrine is that of substantive unfairness, to be deployed in situations where a result is arrived at which is within the powers of the particular authority but which is so grossly unfair that it ought to be impugned. That is what I effectively held in NZFP Pulp and Paper Ltd v Thames Valley Electric Power Board HC HAM CP35/93 1 November 1993. Although that approach was not favoured by this Court on appeal (see Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641), in Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58, this Court held that (at 66): The concept of substantive fairness ... also requires further consideration. The law in this country applicable to situations of that kind will no doubt be developed on a case by case basis. 

[393] In this instance, I did not understand Mr Hodder to be arguing for an incremental gloss on the well-known Mercury Energy “fraud, corruption or bad faith” test. His argument, at least as I apprehended it before us, was that there should be a distinct substantive principle on which the merits of a decision can be attacked. Mr Hodder put it this way in oral argument: Public powers and resources under our system are to be used in the public interest, and they are misused or abused if they are used and diverted to private advantage, obviously, apart from statutory authorised grants or where there is contract for mutual benefit. But that’s the essence of the responsibility of public power. It has to be used in the public interest not for private interests. 

[394] I will deal with this proposition of a “no-conflict” principle in government contracts later in this judgment. I mention it at this point only because, as I apprehended it, this is where Mr Hodder’s principle would fit in the sort of taxonomy I have been discussing. It must be at least implicit, if not explicit, in Mr Hodder’s proposition that this is a substantive principle which we need in New Zealand today. That brings me to the next subset of comment. 

Place 

[395] Francis Cooke QC has recently noted that in New Zealand administrative law, “we still take our lead from the United Kingdom”: “Relief at Last” in Administrative Law (New Zealand Law Society Intensive, August 2008) 31 at 31. Whilst a respectful eye will doubtless continue to be cast on judicial review developments in England, I agree that New Zealand has to develop its own solutions in terms of its own needs and aspirations. There are some difficulties which ought to be made explicit here. 

[396] One is the question of “opportunity”. Professor Burrows has remarked that case-made law “scores its runs in singles”. That is a real difficulty in a small country like New Zealand, with only an irregular supply of cases (“the bowling”), and consequently the run accumulation technique becomes highly problematic. Commentators in New Zealand routinely fail to focus sufficiently on the “supply” side of bowling from which a respectable innings may be fashioned. It is difficult for senior judges to work at the problem systematically. There is instead an intermittent and somewhat mad-headed chase after the “latest case” on the part of the bar and commentators, and seminars sprout up as if there has been a seismic shift when one case is decided. 

[397] A second and related problem is, if I may resort to Willis Airey’s splendid phrase of a “Small Democracy”, that single judicial review decisions in New Zealand have a disproportionate impact. In recent years in the United Kingdom, Lord Woolf, then Lord Bingham, have had to deal with the tensions which arise between the judiciary and the executive when the judiciary exercises a firmer hand. The English judiciary has survived, and many may think it has undertaken its task admirably across a real run of cases. But quite how things would go in a much smaller and more visible “Small Democracy”, where a pebble in a pond has the effect of a boulder, is more problematic. 

[398] Thirdly, we should not overlook the problem that if the goal of administrative law is to be defined partly in terms of somewhat broader objectives – such as, for instance, the promotion of good governance – one would normally pay close regard to the empirical evidence that administrative law can actually achieve that end. Regrettably, there is little in the way of empirical evidence in the New Zealand context as to whether administrative law as a behaviour modification mechanism in government actually works. Such empirical evidence as there is in other jurisdictions tends to suggest that administrative law is likely to be able to make only a modest contribution to the promotion of external goals. If that is right, it may suggest that such substantive doctrines as are developed for merit review should go only to what might be termed “true excesses”.