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Under the NZ Biosecurity Act, certain NZ airports may not operate international flights without border control services provided by the NZ Ministry of Agriculture and Fishery (MAF). To some extent these services are funded by the NZ Parliament, but to the extent that the costs of the services exceed the parliamentary appropriation, the Biosecurity Act authorises the Director-General of MAF to recover these costs from the airports in question. MAF adopted a policy of recovering these costs from some of the airports caught by the legislation but not others, which policy the affected airports have now successfully challenged in an action for judicial review. In the same case they have also been allowed to recover a portion of the money which they paid to MAF, under the doctrine of colore officio.

Two aspects to Wild J's decision strike me as interesting:

1) At 712 the judge followed G & J at p 322 to hold that the airports could not recover their payments by invoking the rule in Woolwich v IRC because they had received something in exchange for their payments, viz the border control services - i.e. Wild J approved G & J's argument that it follows from Lord B-W's statement in Woolwich at [1993] AC 197, that Woolwich could recover its payments because these had been made 'without consideration', that a claimant who is illegitimately compelled by a public authority to pay for services performed by the authority cannot invoke Woolwich to recover, and must instead rely on the colore officio doctrine.

2) At 714-5, Wild J held that although public authorities generally find it hard to raise the change of position defence because they generally find it impossible to prove that any particular expenditure has been incurred in reliance on a particular receipt, 'this is one of those rare cases where the government can prove expenditure in reliance on [the claimants'] payments to MAF.'

However, he then proceeded to follow Andrew Burrows' suggestion that C of P should be ruled out where a public authority is more at fault than the claimant, e.g. because it has used its power to compel the claimant's payment in the face of the claimant's protests (Burrows, 'Public Authorities, Ultra Vires and Restitution' in Burrows (ed), Essays on the Law of Restitution (1991), at 39).

In Wild J's view, 'the Crown (MAF) was more - much more at fault - than was [the claimant], and was in the wrong to the extent that it is debarred from relying on the defence of change of position.'

Wild J does state that the government is 'perhaps not accurately categorised as a "wrongdoer"', but still his conclusion seems to me rather a surprising application of Lord Goff's statement in Lipkin Gorman that c of p should be withheld from wrongdoers.

It also seems to me to take us into relative fault type arguments of the kind that the NZCA considered appropriate as a matter of general law in Waitiki, but which the PC has more recently ruled out in Dextra v Bank of Jamaica.

A happy New Year to all readers!

Charles

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Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465
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