Special Feature

Access to Youth Justice in New Zealand: “The Very Good, the Good, the Bad and the Ugly”

By Judge Andrew Becroft

The term “access to justice” defies precise definition. The search for a standard, internationally accepted definition has been akin to the search for the Holy Grail. Access to justice has been used in socio-legal research in a variety of contexts, often interchangeably and generally without explicit explanation of its meaning.

Special Feature

Access to Justice from the Perspective of the Commercial Community: Judicial Specialisation

By John Katz QC

The issue of specialisation in the courts is a vexed one that has surfaced from time to time over the years. But, despite its proponents, it appears to have gained little traction in New Zealand. The comments that are made in this paper may be regarded as provocative, but they are voiced to express the genuine concerns of the commercial community and their counsel. It is in my opinion a debate that has to be undertaken. It may very well be that there are no or no ready and simple solutions. But unless we entertain the debate, we cannot say to ourselves that we have tried to address the problem, and have addressed the concerns of the commercial community and provided an answer to that community — even if the answer is, with justification, no change.

Special Feature

Review of Developments in Employment Law

By Professor Margaret Wilson

This is a transcript of Professor Margaret Wilson’s speech presented at the Auckland University Law Review Symposium 2012.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Through the Looking Glass: Renvoi in the New Zealand Context

By Rina See

The renvoi doctrine has again attracted significant attention following the High Court of Australia decision in Neilson v Overseas Projects Corporation of Victoria Ltd. As renvoi has never been applied in New Zealand, there is little commentary on it in the New Zealand context. This article aims to explore renvoi in a wider framework before considering Neilson. It is submitted that renvoi is a solution of practical necessity and should be applied when the purpose of the choice of law rule would be promoted — such as to achieve uniformity. This article suggests that renvoi is appropriate in succession, title to immovables, formal validity of marriage and divorce, and, occasionally, contract and tort. Neilson is then assessed. The article argues that the majority’s adoption of total renvoi was justified but it disagrees with the result. Finally, it observes that Neilson has limited direct relevance to New Zealand because of differences in our choice of law and jurisdiction-selecting rules.

Article

The Third Source of Authority for Government Action Misconceived

By Jeff Simpson

Recent judicial acceptance that the government has residual freedom to undertake any action that is not prohibited, even without positive authorisation, has erroneously diverged from its earlier academic conception. The “third source” conception recognises that such residuary action is subordinate to all positive law. However, courts have attempted to find a positive law basis for residuary freedom in the common law, specifically in the Crown’s legal personality. This “common law” conception fundamentally misunderstands the nature of residuary freedom because courts have not adopted what the author terms the “third way of judicial reasoning”. This reasoning involves the court asking not whether action is authorised, but whether action is prohibited. The third source is thus being assessed by inappropriate criteria developed in the positive law context. Failure to adopt this judicial method has obscured the need for judicial and legislative development of positive legal rules to control third source action. It is the lack of such rules, not the third source itself which is contrary to the rule of law.

Article

Unexpected Contracts versus Unexpected Remedies: The Conceptual Basis of the Undisclosed Principal Doctrine

By Ania Lang

It is often said that the law should resist slavishly following commercial practice. The undisclosed principal doctrine is but one uncomfortable instance of its tendency not to do so. While the commercial imperative for allowing a principal to sue a third party who is ignorant of the principal’s existence is well-recognised, the conceptual rationale for the doctrine has rarely been identified, let alone explored. This article examines the two possible conceptual bases upon which the principal sues or is sued under the undisclosed principal doctrine. The first is that there is an implied contract arising directly between the third party and the principal. The second is that the principal intervenes on a contract existing between the third party and the agent. This article argues that the latter approach should be preferred in order to bring the law more in line with commercial expectations, civil law practice and common sense.

Article

Judicial Restraint When Reviewing Health Care Rationing Decisions: A Healthy Approach?

By Rachael Baillie

Despite being amenable to judicial review, health care rationing decisions are typically approached with a high degree of judicial restraint and deference to decision-making bodies. This approach has persisted through numerous sector reforms in New Zealand. The reasons for restraint are institutional and constitutional. The former category includes the polycentric and commercial nature of the decisions, and the level of expertise involved. The latter includes respect for parliamentary intention, the court’s lack of democratic mandate and concerns about misuse by commercial parties. All of these reasons for restraint can be countered but not entirely discredited. While a high degree of restraint is not warranted, an examination of Canadian jurisprudence indicates a high degree of scrutiny is not justified either. The “accountability for reasonableness” model highlights that the usual grounds of judicial review can be more effectively applied to health care decisions, thereby enhancing the decision-making procedure and hence the outcomes.

Article

Methodology in Legal Theory: Finnis and His Critics

By Matthew Hill

In Natural Law and Natural Rights, John Finnis argues that to understand law, the theorist must attend to the good reasons that humans have for adopting and maintaining a legal system. This is because Finnis believes that the human actions and decisions that constitute law can only be understood adequately with reference to their purpose. Finnis argues that the “central case method” is the correct way to develop a general theory of law. He posits that there is a central case of law — a good, stable form of social ordering — with reference to which all other cases (including the deviant or corrupt) ought to be understood. Finnis’s methodology has been criticised by those who believe jurisprudence can and should be undertaken without regard to morality. They argue that there is no legitimate role for practical reason in the methodology of jurisprudence and that the central case method is the incorrect way to proceed. This article will set out Finnis’s method and discuss the merits of arguments that have been levelled against it by several critics who have engaged directly with his methodology. Discussion of the critics will act as a framework within which to explore sound method in jurisprudence. This article will conclude that the critics’ arguments are unsatisfactory and that Finnis’s methodology is the correct one in legal theory.

Article

Creating Refuge in Hell: The Coming of Age of Safe Areas for the Protection of Civilians in Armed Conflict

By Wilson Chun Hei Chau

Safe areas stem from the idea that special protected zones should be established to provide refuge for civilians from the adverse effects of armed conflict. The law of armed conflict has traditionally given belligerents the liberty to create safe areas, although they can also be imposed by the United Nations Security Council. However, existing practice is overly reliant on the goodwill of belligerents and the political will of the international community to protect civilians. International human rights law and the emerging framework for the protection of internally displaced persons provide a more effective victim-oriented legal foundation. The fundamental duties owed to internally displaced persons, coupled with the non-derogable right to life, could place binding obligations on authorities to consider safe areas as a necessary means of protecting civilians.

Article

Margin Squeezing: The Superfluous “Fancy Phrase” of New Zealand Competition Law

By Bradley Aburn

Competition law is often called upon to address anti-competitive pricing, whether the pricing be inexplicably high or low. Those two cases have arisen on countless occasions to produce settled frameworks for analysis. What remains less clear is how to approach margin squeezing: the practice whereby a vertically integrated monopolist increases the cost of the input whilst simultaneously decreasing the downstream price. This margin squeeze makes it difficult, and sometimes impossible, for rivals to compete. New Zealand’s only case to address margin squeezing has been Data Tails, in which the High Court ignored United States and European jurisprudence and the Court of Appeal only went one step further by considering it before distinguishing it on less than robust grounds. This article explores the approaches to margin squeezing taken overseas and locally. It concludes with the realisation that the High Court reached the right outcome, albeit through superficial reasoning. Unfortunately, additional glosses that the Court of Appeal superimposed on the High Court test leave one with uncertainty and unease.

Case Notes

Marlborough District Council v Altimarloch Joint Venture Ltd

By Hamish Beckett

The decision of the Supreme Court in Marlborough District Council v Altimarloch Joint Venture Ltd brings to an end lengthy proceedings concerning misrepresentation and negligent misstatement in the purchase of a farm. The decision is perhaps most noteworthy for the Court’s unanimous finding that a local authority owes a duty of care when issuing a Land Information Memorandum (LIM). Indeed, this decision will likely dictate a review of local authority practice in this area. Beyond this issue, the subsequent matters before the Court resulted in a divergence of views amongst the judges — a divergence worthy of further commentary.

Paki v Attorney-General: He Piko, He Taniwha

By David Green

The circumstances of this decision engage several interconnected issues such as customary title and the relationship between the Crown and Māori. That is to suggest that as this dispute winds its way through the judicial process, there is another question to address at every bend. The end of this journey is not yet in sight, but the wide-reaching implications of each decision should be kept in mind. At the current bend in this litigious stream, Paki v Attorney-General, the Supreme Court examined navigability of rivers under s 14 of the Coal Mines Act Amendment Act 1903. The Court decided, by majority, that the question of navigability depended on a “part of river” rather than a “whole river” approach. The focus of this case note is on the consequences of this decision.

Allenby v H: A Realignment with the Accident Compensation Scheme’s Social Contract Roots?

By Nicola Brazendale

In Allenby v H, the Supreme Court held that the accident compensation scheme covers pregnancy caused by failed sterilisation. This ruling is significant in that it represents a reversal of the Court of Appeal’s earlier decision in Accident Compensation Corp v D. Of perhaps greater significance, the case represents a realignment with the visionary principles of the Woodhouse Report: the provision of comprehensive cover in return for the removal of the right to sue for personal injury.

Legislation Note

Search and Surveillance Act 2012

By Simon Collier

Book Review

The Nature of Legislative Intent – Richard Ekins

By Jing Jing (Alice) Wang