WORLD TRADE
ORGANIZATIONG/ADP/AHG/W/150
13 October 2003
(03-5400)
Committee on Anti-Dumping Practices
Working Group on ImplementationOriginal:  English
ARTICLE 13 – JUDICIAL, ARBITRAL OR ADMINISTRATIVE REVIEW
Paper by New Zealand
The following communication, dated 10 October 2003, has been received from the Permanent
Mission of New Zealand.
_______________
Legislative Framework
There are no provisions in New Zealand's principal trade remedies legal instrument, the
Dumping and Countervailing Duties Act 1988, which incorporate the provisions of Article 13 of theAnti-Dumping Agreement regarding the necessity to ma intain judicial review procedures.  The right
to judicial review action in relation to dumping a nd subsidy investigations is within the Judicature
Amendment Act 1972.  This Act contains the provisions for the Courts to review  any statutory
decision in New Zealand law.  A  decision taken under the Dumping and Countervailing Duties Act is
a decision capable of review under that Act as it is or concerns a statutory power of decision.
Purpose of Judicial Review
Judicial review is a review by a Judge of the High Court of New Zealand of the exercise of, or
refusal to exercise, a statutory power of decision.  The outcome of a review will determine whether a
decision or action is unauthorised or invalid.  The purpose of judicial review in New Zealand is
twofold:
• The definition of principles to govern administration; and
• The safeguarding of individual interests against illegal or unreasonable
administrative action, or from administrative action taken without followingproper procedures.
Grounds to Take Judicial Review Action
In judicial review the Court's focus is on the process by which a decision is made and not
necessarily the merits or otherwise of that decision.  The court can intervene when a decision is
clearly unreasonable or substantively unfair and th e Judge has a wide range of discretionary powers.
This includes the ability to declare that, until a review is complete, the status quo existing before the
decision should prevail.G/ADP/AHG/W/150
Page 2
The grounds on which a Judge will intervene are:
1. Illegality:
• Such as:
• misinterpreting the law; or
• making a decision for an improper purpose; or
• failing to take into account relevant matters; or
• factual errors; or
• rigidly applying a pre-determined policy; or
• the decision-maker acting under dictation from someone else; or
• invalid delegation of the decision-making power.
2. Unreasonableness:
• Where a decision-maker has made a decision that no sensible decision-
maker, acting with due appreciation of his/her responsibilities would havearrived at.
3. Unfairness:
• Such as:
• not giving a person affected by the decision a fair opportunity to make
representations (also known as the "right to be heard");
• bias;
• inconsistency; or
• substantive unfairness.
Procedures
Sections 9 and 10 of the Judicature Amendment Act 1972 govern the procedures that are
followed in a judicial review proceeding.  An applic ation for review is made by way of a motion to the
High Court accompanied by a statement of claim.  The statement of claim states:
• the facts on which the applicant bases the  claim to relief;
• the grounds on which the applicant seeks relief; and
• the relief sought.
The matter then comes within the jurisdiction of a Judge who has the power to call a
conference of the parties or give direction to ensure that any application for review can be determinedin a convenient and expeditious manner so that all matters in dispute may be effectively and
completely determined.
If a Judge calls a conference of the parties he/she can:
• settle the issues to be determined;G/ADP/AHG/W/150
Page 3
• direct what persons shall be cited, or need not be cited, as respondents to the
application for review, or direct that the name of any party be added or struckout;
• direct which parties shall be served;
• direct by whom and within what time an y statement of defence shall be filed;
• require any party to make admissions in respect of questions of fact; and, if
that party refuses to make an admission in respect of any such question, thatparty shall be liable to bear the costs of proving that question, unless the Judge
by whom the application for review is finally determined is satisfied that the
party's refusal was reasonable in all circumstances, and accordingly orders
otherwise in respect of those costs;
• fix a time by which affidavits or other documents shall be filed;
• fix a time and a place for the hearing of the application for review;
• require further or better particulars of any facts, or of the grounds for relief, or
of the relief sought, or of the grounds of defence, or of any other circumstance
connected with the application for review;
• require any party to make discovery of documents, or permit any party to
administer interrogatories;
• in the case of an application for review of a decision made in the exercise of a
statutory power of decision, determine whether the whole or any part of the
record of proceedings in which the decision was made should be filed in theCourt, and give such directions as is fit as to its filing;
• Exercise any powers of direction or appo intment vested in the Court or a Judge
by its rules of Court in respect of originating applications;
• Give such consequential directions as may be necessary.
Once the papers are served and the Judges directions (if any) are complied with, the
respondent to the application files a statement of his defence to the statement of claim.  Up until thecommencement of a hearing of an application for review, the Judge can exercise any of the powers
listed above without holding a conference.
The matter then proceeds to a formal hearing if necessary.
Remedies
The Court has discretion whether to grant relief in the case of a successful application.  In
cases where relief is granted, a Judge may:
• declare that certain aspects of the decision were invalid (such as things that
should have been done but have not, or that the decision maker took intoaccount irrelevant matters or failed to take into account relevant matters);G/ADP/AHG/W/150
Page 4
• set aside the decision as unlawful; or
• direct the person who made the decision or took the action to reconsider and
determine the matter and may give directions as to how this should be done.
Any party to an application for a review who is  dissatisfied with any final or interlocutory
order in respect of the application may appeal the decision to the New Zealand Court of Appeal.
General
Judicial review is the only avenue by which an anti-dumping decision can be reviewed in
New Zealand.  There are no provisions for arbitral or administrative tribunals in the administrative law
system.  As judicial review proceedings are under the jurisdiction of the Courts in New Zealand the
process meets the requirement of Article 13 of the Anti-Dumping Agreement that such procedures beindependent of the authorities responsible (in New Zealand's case, the Minister of Commerce and the
Chief Executive of the Ministry of Economic Development) for the determination or review in
question.
__________