Reviewing a statutory power to make or withhold a recommendation, by Eugene Duhovnikoff BA/LLB

Can there be a judicial review of a recommendation to take a certain step? In short, the answer is sometimes. There are legal precedents both in New Zealand[1] and in Australia[2] where decisions to make or withhold a recommendation were held to be reviewable.

For example in Hot Holdings Pty Ltd v Creasy the applicant for judicial review sought to review a preliminary assessment and recommendation to the Minister on the granting of mining exploration licenses. The High Court of Australia held that a preliminary assessment and recommendation was reviewable because, although the recommendation did not bind the Minister, it was a relevant consideration that the Minister was bound to have regard to either as a matter of statute or good administrative practise.

In Zhao v New Zealand Law Society a barrister who wanted to practice as a solicitor on his own account, sought to review an adverse recommendation by an interview panel of the Law Society as to his fitness to practice. The grounds were the breach of natural justice and legitimate expectation. [3] The High Court held that such a recommendation was reviewable due to its influence in the determination of his fitness to practice. Kós J held that in that particular case the exercise by interviewers (and by members of the Committee) of the power devolved to them to recommend (or withhold recommendation) the right to practise on one’s own account is a reviewable action.[4] There were four reasons for that decision in that case were:

  1. The fact that the interviewers’ investigative, and recommendatory, powers involve the exercise of a statutory power;
  2. Where the interviewers issue a positive recommendation that is given considerable weight by the Society in exercising their statutory power of decision;
  3. The report given by the interviewers on a negative recommendation will be influential in any determination by the Committee, following reference to it;[5]
  4. Adopting Young J statement[6] Kós J held that even at a preliminary stage a power to investigate and recommend may “go off the rails”, such that it is necessary that a court quash the decision: “An example given by the Judge was bias. If established at a preliminary stage, that would likely be fatal to all subsequent decision making. It is not necessary in such a case that the applicant for judicial review stay his or her hand until the process plays out to its likely adverse outcome."


In Smith v Smith,[7] the case which involved an application to review a recommendation by the Family Court to undergo a parentage test under section 54 of the Family Proceedings Act 1980 it was held that there may be a right of appeal in respect of such a recommendation.[8] There reasons for such a decision were[9]:

"That is a decision of the Court whether to exercise a statutory power. The exercise of that power is capable of affecting the rights of those to whom the recommendation relates. In the absence of a sufficiently compelling explanation for not following the recommendation, an adverse inference may be drawn. That is to say that it will be a relevant factor in the Court's assessment as to whether a paternity declaration should be made. These factors suggest a recommendation would be reviewable."

It must be noted that comments made in Smith v Smith are obiter dicta only, and in subsequently in Hill v Fruean[10] the High Court held that a recommendation under section 54 is not reviewable. Having said so, Smith v Smith and other cases clearly show that the judiciary is opened to review a power to make a recommendation in various areas ranging from the family law through to professionals’ regulation sphere all the way to regulation of mining exploration.



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[1] Zhao v New Zealand Law Society [2012] NZHC 2169; Smith v Smith [2013] NZHC 2536.

[2] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438.

[3] Zhao v New Zealand Law Society at para 2. [4] Para 66.

[5] Ibid. The Committee may indeed make no further inquiries, and exercise the third option of recommending refusal of the application without further reference to the applicant.

[6] Marlborough Aquaculture Limited v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at [15].

[7] [2013] NZHC 2536.

[8] Ibid at para 44.

[9] Ibid at para 43.

[10] [2014] NZHC 682.

Reeves/Duhovnikoff & Associates Ltd. 2017