The Functional Convergence of Appeal and Judicial Review

Abstract

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