bluuebunny/crossref_metadata_2025 huggingface dataset:
Working for the Common Good: Where Practice Meets Theory
Authors: Beech Lisa
Published: June 2019

The ideal of the common good inspires many people of goodwill to undertake action in their communities and in public debates to improve social wellbeing. In Catholic Social Teaching, working for the common good calls each person to work for the good of each person and of all people. However, in public discussion and debate, the understanding of the common good found in Catholic Social Teaching is often confused with similar sounding but quite different concepts of the greater good, public good and public interest. This article is based on a joint presentation with Bishop Philip Richardson given at the "Recovering the Common Good" Conference. It presents the perspective of practitioners working for the common good, and particularly of those working for Caritas, rather than an academic appreciation of all the different contested understandings of the common good.
Recovering the Common Good: The Key to a truly Prosperous Society?
Authors: Bradstock Andrew
Published: June 2019

This article argues that the common good would have much to contribute to political discourse in New Zealand at the present time. Beginning with a definition of the concept, particularly as it has developed within Catholic Social Teaching, the article examines attempts by New Zealand church leaders to introduce it into public debate in recent decades, and concludes that, were the common good to be given serious consideration today, it would both prompt New Zealanders to look critically at their society and consider the purpose of their common life together, and enhance their quality of life individually and communally. The article addresses the charge that promoting the common good might be seen as favouring one (religiously-inspired) notion of 'the good life' over others, and, following Raymond Plant, suggests that, in a pluralist society, a more appropriate starting point for a conversation about such issues would be an exploration of 'social justice'. The article also explores the extent to which markets and governments might promote the common good.
Legal Problems of Inflation
Authors: Richardson Ivor LM
Published: June 2019

The article reviews the efforts by Governments, Courts and professional accounting bodies to mitigate the hugely damaging effects of the high inflation of the 1970s and 1980s on the economy and the wider public. The Consumer Price Index brings out that impact recording that in 1990 a New Zealand dollar was worth less than one-eighth its value in 1970.
The Loss of Birthright Citizenship in New Zealand
Authors: Sawyer Caroline
Published: June 2019

The Citizenship Amendment Act 2005 removed the traditional common law rule that a person born in New Zealand was, just for that reason, a New Zealand citizen. It required that the person have a parent who was a New Zealand citizen or permanent resident at that time. The change is often said to have been made to prevent transient immigrants having New Zealand citizen children in order to remain in the country, after the Supreme Court's decision in the Ding and Ye line of cases reputedly confirmed that foreign parents did thus obtain that right. This article discusses the misconceptions surrounding the loss of full birthright citizenship, the background of contemporary citizenship law in the common law world and the potential effects of the recent change on migrant communities and on New Zealand's existing population.
Using the Social Science Research Network to Aid and to Promote Research
Authors: Prebble John , Caldwell Julia , Keene Amelia
Published: June 2019

The Social Science Research Network is a depository for academic scholarship. SSRN allows academic papers and abstracts to be accessible worldwide. Most papers may be downloaded from the SSRN database free of charge, but some links are to commercial sites. Posting papers to SSRN and subscribing to its site are not inherently complicated. However, it is possible for academic departments, particularly law schools, to use SSRN more efficiently and more flexibly than SSRN's architects envisaged. For instance, one can establish a faculty working paper series with archived issues that are forever easily accessible, a much cheaper manner of establishing a working paper series than traditional ways, and a more permanent format than envisaged by standard SSRN systems. This article explains how SSRN works and how it can be used more effectively.
Devils Down Under: Perceptions of Lawyers' Ethics in New Zealand Fiction
Authors: Morris Grant
Published: June 2019

Sophisticated fictional portrayals of lawyers facing ethical dilemmas can provide important insights into the nature of legal ethics and morality in the New Zealand legal profession. These insights can assist the legal community in addressing complex issues surrounding professional regulation. This article reveals legal characters who act contrary to legal ethics but with moral justifications and characters who act ethically but in a way that laypeople may view as amoral or immoral. While the depictions of lawyers are generally negative, a close analysis reveals that this is partly a result of confusion over what Dare has termed the standard conception of a lawyer's role. Fewer insights can be gained from superficial characterisations. While much has been written on this topic in other jurisdictions, more light can be shed on New Zealand's ethical landscape through the study of New Zealand's fictional texts. This article exposes a rich resource for the legal community because as Economides and O'Leary have argued in relation to legal ethics, stories matter. This dictum should apply to works of non-fiction and fiction.
Why so Silent on the Right to Silence? Missing Matters in the Review of the Evidence Act 2006
Authors: McDonald Elisabeth
Published: June 2019

In this article I examine the scope and application of ss 32 and 33 of the Evidence Act 2006 (NZ) with reference to both the historical justification for the right to silence and the legislative history of these provisions. In considering the extent to which the sections do not reflect either the recommendations of the Law Commission in 1999, nor Parliamentary intent, I question why the sections were left out of the Commission's first statutory review of the Act in 2013. I conclude by suggesting that the right to silence should be the subject of informed public debate and raise some possible options for reform.
Leaving the Hart-Fuller Debate and Reclaiming Fuller: Form, Agency, and Morality in Kristen Rundle's Forms Liberate
Authors: Bennett Mark
Published: June 2019

Kristen Rundle's Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller provides an excellent analysis and re-interpretation of Fuller's legal theory. Its particular strengths are its comprehensive contextualisation of Fuller's famous arguments about the 'internal morality of law' within a wider project of 'eunomics' – the inquiry in the principles of good social order – and its reorientation of our view of Fuller's thought through his key idea of human agency. This review article sets out Rundle's main claims, and then challenges the argument that HLA Hart's responses to Fuller make him primarily responsible for the neglect and misunderstanding of Fuller's wider project in contemporary legal philosophy.
Common Law Equity in a Civil Law Country
Authors: Angelo A H , Allan Ashleigh
Published: June 2019

This article serves to introduce an aspect of current research related to the review of the Seychelles Civil Code and the important question of the role of trusts. The Civil Code is based on the Code Napoléon and has therefore no provision for the trust of English law. The Courts of Seychelles have, however, a statutory equitable jurisdiction. That jurisdiction has given rise to the question whether the trust of England may be able to operate in Seychelles. The prime area of discussion of this possibility has been in relation to the property rights of the parties to a failed concubinage relationship. This article focuses on that discussion.
Jurors on Trial: Lawyers Using the Internet to Research Prospective Jurors
Authors: O'Hagan Lydia
Published: June 2019

This article examines a practice whereby lawyers use the internet to research prospective jurors with a view to challenge. It is unclear how common the practice is in New Zealand, but the increasing availability of personal information online means that lawyers have a plethora of personal information about prospective jurors at their fingertips. Currently peremptory challenges are exercised in a discriminatory fashion on the basis of broad stereotypes. It is argued that pretrial research by lawyers on prospective jurors could secure a more impartial jury by providing a mechanism for uncovering attitudinal biases or predispositions, meaning the challenges will be exercised on the basis of stereotypes alone less often. Pretrial research by lawyers could also remedy the disparity of resources between prosecution and defence by providing an independent vehicle for obtaining information. This article discusses the benefits of pretrial research of prospective jurors and argues that any drawbacks are limited. Potential guidelines for lawyers conducting pretrial research around the collection, use, retention and disclosure of information are proposed. This article concludes that pretrial research of prospective jurors serves to protect, rather than undermine, the fundamental right of all parties to a fair trial.
The New Intrusion Tort: The News Media Exposed?
Authors: McKenzie Thomas Levy
Published: June 2019

In C v Holland, Whata J recognised that the tort of intrusion upon seclusion formed part of New Zealand's common law. The tort protects against intentional intrusions into a person's private space. This decision potentially exposes the news media to tortious liability when it engages in intrusive newsgathering practices. However, Whata J's decision provides little guidance as to how the tort should be applied in later cases. In order to ascertain the meaning of the tort's formulation, this article draws upon the methods used, both in New Zealand and internationally, to prevent the news media from breaching individual privacy rights. It then suggests that the courts should replace the formulation with a one-step reasonable expectation of privacy test. It also argues that the legitimate public concern defence should be better tailored to the intrusion context. Finally, it briefly assesses how the intrusion tort should interact with the privacy tort in Hosking v Runting. Ultimately, it concludes that, in future, the courts should reflect more carefully on the precise wording of the intrusion tort's formulation so that it best vindicates the interests that it was designed to protect.
The Helpless Protecting the Vulnerable? Defending Coerced Mothers Charged with Failure to Protect
Authors: Midson Brenda
Published: June 2019

In a number of jurisdictions failure to protect a child from violence renders a person liable if a duty is owed to the child. This duty presumes the defendant has the capacity to act positively to protect the victim, which has implications for defendants who are also subjected to violence or coercion. In the understandable haste to prosecute and prevent child abuse, there is a risk of neglecting the realities of other vulnerable people. Consequently the criminal justice system ought to reject a binary approach to victims and offenders, recognising that defendants may also be victims and that mothers, due to the coercive control exerted by intimate partners, may also be vulnerable. In New Zealand there are no statutory or common law defences that operate to exculpate a mother charged with failing to protect her child from the violence of another. This article argues for the creation of an affirmative defence that takes into account the totality of a coerced mother's circumstances in considering whether she has, in fact, failed her child.
Disparity in Jack v Jack: Judicial Overreach or a Just Result at Long Last?
Authors: Shaw Susannah
Published: June 2019

This article discusses the approach taken to enhanced income awards under s 15 of the Property (Relationships) Act 1976 in the recent decision of the High Court in Jack v Jack. The Court upheld the Family Court's award of 70 per cent of the relationship property pool to Mrs Jack to compensate her for economic disparity arising out of the division of functions in the relationship, on the basis she helped Mr Jack enhance his career and sacrificed her own earning potential. The author argues that in upholding the Family Court's findings on causation and accepting the broad brush assessment of quantum, the Court has increased the chances of a successful claim for an enhanced income award. In light of the underutilisation of the enhanced income aspect of s 15, this decision is a welcome step towards the fulfilment of the provision's aims.
"Girls Behaving Badly?" Young Female Violence in New Zealand
Authors: Lynch Nessa
Published: June 2019

While female crime, and particularly young female violence, has long been a titillating subject for the media, recent reports suggest an upsurge in violence amongst girls in New Zealand. This short article uses raw apprehension and sentencing data to consider the question of whether violence by girls is indeed increasing. It is concluded that while there does seem to have been an increase in violence by girls in the earlier part of the decade, the level of violence has fallen in the last three years. There may also be other explanations for an increase in apprehensions for violent offences such as changes in Police practice and societal attitudes.
Bringing Justice to Cambodia: Reflections on Dame Silvia Cartwright's Role at the Khmer Rouge Tribunal
Authors: Kedgley Laidlaw Anais
Published: June 2019

Dame Silvia Cartwright is one of New Zealand's most distinguished woman jurists. While much is known about her celebrated New Zealand-based career, this article focuses on her more recent, and arguably more important role – as a judge at the Khmer Rouge Tribunal in Cambodia, tasked with bringing to justice those most responsible for the atrocities committed by the Khmer Rouge in the 1970s. This article is a portrait of Dame Silvia, underlining her role as a leading jurist and an inspiration to women, based on the personal experiences of the author. It is not intended to critically address any issue relating to the Tribunal.
Interview: Gender Imbalance in the Law
Authors: Grice Christine
Published: June 2019

Following the release of the Auckland Women Lawyers' Association funded research Women's career progression in Auckland law firms: Views from the top, views from below,  the Executive Director and past-President of the New Zealand Law Society, Christine Grice, did some research into the situation of women QCs. She explored the issues facing senior women lawyers in an interview with Kathryn Ryan on "Nine to Noon" on 10 March 2014. On 6 June 2014, the 14 new QCs announced, included four women, with the Attorney-General saying: "I am aware there are very talented women in the profession who remain reticent about putting their names forward and I hope to see increasing numbers represented in the future."
Gender Imbalance in New Zealand's Senior Legal Positions
Authors: Guy-Meakin Amelia
Published: June 2019

Despite New Zealand's real progress toward gender equality over the past century, women remain under-represented in the country's senior legal positions. Disparities between men and women are not unique to the legal profession. They are particularly problematic, however, given that the law aims to pursue justice, and equal opportunity should be its paramount concern. This article examines some of the obstacles and constraints women face in attaining leadership roles in the New Zealand legal profession. Preliminary solutions to remedy these obstacles and constraints are proposed, including a necessary recognition that many female professionals offer distinct experiences and have different needs to their male counterparts.
Preface: My Life in the Law
Authors: Smith Shirley
Published: June 2019

This article is an autobiographical account of the author's life in the law. The author's father, a barrister, did not initially approve of her being a lawyer. The author was inspired to take up a career in law later in life after having completed a Classics degree. The author describes the discrimination she faced as a woman in the law and challenged the policies of the Wellington District Law Society and New Zealand Law Society that did not allow women to attend. She also discusses her time as an academic at Victoria University of Wellington Faculty of Law, as well as being an accomplished sole practitioner.
Regulation of Prediction Markets Under the Financial Markets Conduct Act 2013
Authors: Farmer Kelsey Brooke
Published: June 2019

The Financial Markets Conduct Act 2013 (FMC Act) represents the most substantial overhaul of New Zealand's securities law in recent history. The regulation of derivatives in particular featured high on the agenda as an area in need of reform and, as a result, the FMC Act is much more clear than the Securities Act 1978 and Securities Markets Act 1988 with respect to typical derivative agreements. The focus of this article, however, is on the atypical: the use of derivatives in prediction markets. This article examines whether New Zealand-based prediction market iPredict will be regulated under the FMC Act and, if so, how it will be regulated. The conclusion reached is that iPredict can operate under the FMC Act only if the Financial Markets Authority declares that its contracts are derivatives and grants substantial exemptions from regulatory compliance. This article then makes recommendations for a more coherent approach to the regulation of prediction markets by analogy with the new prescribed intermediary service licences under the FMC Act.
Judicial Specialisation in a Generalist Jurisdiction: Is Commercial Specialisation Within the High Court Justified?
Authors: Steel William
Published: June 2019

In November 2013, after a series of Law Commission reports and years of academic, professional and judicial discussion, the Government introduced legislation to Parliament to replace the existing High Court commercial list with a specialist commercial panel. Whilst this panel would bring New Zealand into line with many comparable common law jurisdictions, this article argues that the case for specialisation has not been established. In particular, it notes that there is no publically available evidence to support the claim that the High Court is losing its commercial jurisdiction, or that commercial parties are choosing to resolve their disputes offshore or through alternative dispute resolution. Accordingly, this article argues that future research by the Law Commission, or other research agency, is required before specialisation can be justified. In reaching this conclusion, it also examines the issues that may arise if the Government decides to continue with its proposed reform under cl 18 of the Judicature Modernisation Bill 2013, suggesting changes along the way.
A Time to Dance
Authors: Angelo AH , Kerr Jessica , Roylance Bayley
Published: June 2019

There is, as is declared in Ecclesiastes, a time for everything and in particular "a time to dance", "a time to rejoice", and "a time where every person should eat and drink and enjoy the good of their labours".  The three authors here join celebrating the service of their colleague, mentor and friend by tendering some comparative comments on the law of Seychelles.
Controlled Clinical Trials with Doping Substances in Sports Law
Authors: Deutsch Erwin
Published: June 2019

The research ethics committee of a German medical university recently faced a totally new problem. The department for sports medicine had asked the committee to approve a protocol for a controlled clinical trial about the efficacy and safety of doping substances in cycling. This article considers the difficulties of the German law on this matter.
The Dilemma Caused by Delusional Defendants
Authors: Collins David
Published: June 2019

This article explains the dilemmas that arise when a defendant, who is prone to delusional episodes but nevertheless fit to stand trial, elects to exercise the right to represent themself. It examines the background to the criteria for determining if a defendant is fit to stand trial under the Criminal Procedure (Mentally Impaired Persons) Act 2003, and then analyses the way those criteria have been interpreted in New Zealand. The difficulties caused by the New Zealand approach are then analysed in more detail by reference to the leading 2008 Supreme Court case of Cumming v R, which involved a delusional defendant who represented himself and who was subsequently found to have been unfit to stand trial.
The Enigma of Community Responsibility: Ethical Reflections on Accident Compensation
Authors: Gaskins Richard
Published: June 2019

Lurking behind the familiar ACC principle of "community responsibility" are some core questions about what it means to be a community, and how responsibility is to be assigned. The original ACC blueprint took a distinctive approach to both terms – which was diluted in the process of implementation and further weakened in successive legislative amendments. And yet, mysteriously, over five decades, the language of "community responsibility" has remained at the centre of ACC policy discourse. Reflecting on ethical presumptions can clarify these evolving meanings, reframing key questions for future ACC debates.
Quo Vadis, Civil Partnership?
Authors: Scherpe Jens M
Published: June 2019

This article discusses and compares the different concepts of civil partnership around the globe: either as functional equivalent to marriage for same-sex couples only or as an alternative to marriage for all couples. It analyses its declining role in the wake of widespread marriage equality reforms and then discusses, in particular, the current position of England and Wales, and Scotland, where ill-conceived law reform has led to a situation in which same-sex couples are privileged and opposite-sex couples are discriminated against.
Life beyond Death: Regulating Posthumous Reproduction in New Zealand
Authors: Peart Nicola
Published: June 2019

This article argues that the current legal regulation of posthumous reproduction in New Zealand is deficient. Posthumous reproduction raises issues in relation to consent, the welfare and status of the child, and even such practical issues as succession rights and estate administration. Drawing on Australian and English case law and legislation, this article proposes reform of the current legal regulation to clarify the consent requirements for collection and use of gametes after the death of the gamete provider, and to address the legal status and associated rights of posthumously conceived children.
Some Moot Points on the 1980 Hague Abduction Convention
Authors: Lowe Nigel
Published: June 2019

This article discusses the Hague Convention on the Civil Aspects of International Child Abduction which, despite having been in existence for over 30 years, continues to present a number of uncertainties for Contracting States. The article focuses on the issues around appealing return orders after a child has been taken out of the jurisdiction, the concept of “habitual residence”, and the non-enforcement of return orders with reference to recent case law from the United States, United Kingdom, New Zealand and the European Union.
Tribute to a Law Teacher with a Heart and a Social Conscience
Authors: Palmer Geoffrey
Published: June 2019

The author, having served as Professor at the Victoria University of Wellington Faculty of Law alongside him, provides a tribute to his colleague Professor Bill Atkin. The author commends Professor Atkin's role as an influential scholar and teacher in the somewhat incoherent area of family law, stating that Professor Atkin is an outstanding academic lawyer who has made a significant contribution to the improvement of the law in New Zealand.
Bill Atkin: Colleague, Mentor, Teacher, Friend
Authors: Angelo AH , McLay Geoff , Marten Bevan
Published: June 2019

The three authors, all academics at Victoria University of Wellington Faculty of Law, provide their respective tributes to Professor Bill Atkin in his various roles. Professor Tony Angelo provides his account of Professor Atkin as a colleague and friend since the 1970s. Professir Geoff McLay speaks of his experience learning tort law in the 1980s under Professor Atkin, and eventually becoming his colleague. Bevan Marten discusses Professor Atkin's lectures in the early 2000s, as well as his mentorship and eventual status as colleagues.
Imagining a Counterfactual Section 36: Rebalancing New Zealand's Competition Law Framework
Authors: Gavil Andrew I
Published: June 2019

Like the competition-related laws of most other nations, s 36 of New Zealand's Commerce Act 1986 includes a prohibition of some unilateral acts by firms with substantial market power. Such prohibitions reflect the consensus view of many jurisdictions, courts and commentators that the anticompetitive potential of unilateral conduct largely depends on the market power of the firm undertaking it. In lieu of an inquiry into the actual or probable effects of challenged conduct, however, s 36 has been interpreted to rely on a "counterfactual" test, seemingly unique in the world. Under that approach, courts have been directed to ask whether a firm lacking substantial market power would have engaged in the same conduct, and from the answer to that question to infer the likely effects of the conduct by the firm with market power. This article argues that the counterfactual test will frequently be an unreliable method for implementing the language and underlying purposes of s 36.  In many common circumstances it will likely fail to proscribe conduct that may well be harmful to competition and consumers, and result in systematic under-deterrence. In other cases, it may fail to recognise and credit efficiencies that might be unique to the firm with market power, and hence over-deter procompetitive conduct.  The article concludes by considering several options for reform.
Let Te Reo Speak: Granting Legal Personality to Te Reo Māori
Authors: Angelo Tony , Perham Elisabeth
Published: June 2019

Against the background of increasing concern about the future sustainability of te reo Māori, this article proposes, as one way to improve the prospects of the language, that te reo Māori be recognised as having legal personality.
Fewer Charges are being Laid in the Health Practitioners Disciplinary Tribunal: Should we be Concerned?
Authors: Davies Kim
Published: June 2019

Since the Cartwright Report was produced 27 years ago, it has become accepted that the needs of patients should be at the centre of our health system – including when things go wrong. This article examines professional disciplinary charges laid against doctors in the Health Practitioners Disciplinary Tribunal, and compares them with those laid in its predecessor organisation, the Medical Practitioners Disciplinary Tribunal. It concludes that fewer charges, particularly charges that relate to clinical misconduct, are coming before the Tribunal, and discusses the implications of this change. The article questions whether this evolving practice could undermine some of the purposes of the Tribunal and lead to a less patient-focused system.
Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence
Authors: Fletcher Scott William Hugh
Published: June 2019

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.
Woe Unto Them That Lay Field to Field: Closer Settlement in the Early Liberal Era
Authors: Van Alphen Fyfe Monique
Published: June 2019

This article undertakes a re-examination of the origins, construction and application of the Land for Settlements legislation in the early Liberal era. The Liberal's commitment to closer settlement reveals part of the story of highly contested land policy in colonial New Zealand. Land for Settlements legislation of the 1890s, aimed at "bursting up" the great estates, was predominantly the product of settlers' ideological aspirations and two determined politicians: John Ballance and John McKenzie. When measured against the rhetoric used to promote it, however, the policy was not necessarily effective: it was complicated by practical realities and a narrow vision of New Zealand as a vigorous Arcadian paradise. When contrasted with the treatment of Māori land, yet more of the complexity of the land issue and the frailties of the actors facing it are revealed. The article concludes by proposing that Liberal policy, while flawed in execution, may have nevertheless contributed something to the consolidation of the concept of New Zealand as an agrarian ideal, a concept that remains largely intact today.
Implications of the New Rule Against Penalties
Authors: Palmer Jessica
Published: June 2019

Whether a contractual term is penal and therefore unenforceable has usually been determined by distinguishing it from stipulations that are a reasonable contemplation of loss resulting from breach. This article considers recent decisions of the High Court of Australia and the United Kingdom Supreme Court that have made significant revisions of the rule. Both Courts have diverged from the traditional formulation and, to some extent, from each other. I argue that the traditional rule against penalties reflects foundational principles of contract law and not merely notions of fairness or justice in the round. The recent revisions to the rule have implications for the role and boundaries of contract law more generally and reflect increasing attention being paid to the "performance interest".
Reasonable Foreseeability of Harm as an Element of Nuisance
Authors: Hook Maria
Published: June 2019

A landowner's utility pipe bursts and floods the plaintiff's land. It was reasonably foreseeable that the water would cause flood damage to the plaintiff's land in case of an escape. But it was not reasonably foreseeable that the pipe would burst and, hence, that there would be an escape of water. Can the landowner be liable in nuisance? This paper explores the conceptual implications of the proposition that reasonable foreseeability of harm is an element of liability in nuisance. It argues that, if reasonable foreseeability of harm is an element of nuisance, then nuisance can no longer be thought of as a strict liability tort.
Not my Doctrine? Finding a Contract Law Explanation for Non Est Factum
Authors: Connell Simon
Published: June 2019

Non est factum (Latin for "not my deed") is a common law doctrine that can allow the signer of a legal document to escape the usual legal consequences of their signature. In its early days, non est factum was available only to blind and illiterate persons who, without being careless, relied on another party's seriously flawed explanation of the document. Non est factum can void contracts, but I argue the general explanation for the doctrine is not a satisfactory explanation for why it applies to contracts. This article considers whether there is an explanation for non est factum that is consistent with contract law thinking. I argue that there is, and explain non est factum as an application of the objective principle set out in Smith v Hughes.
The Consumer in Cross-Border Passing Off Cases
Authors: Austin Graeme W
Published: June 2019

This article considers Starbucks (HK) Ltd v British Sky Broadcasting Group [2015] UKSC 31 in which the Supreme Court of the United Kingdom held that, for the purposes of the passing off tort, goodwill is strictly territorial. It compares this approach with that of New Zealand cases which have adopted a more flexible approach to the protection of goodwill in the cross-border context. The article suggests that, in some cases, the New Zealand approach will be better adapted to consumer experience in the modern international marketplace.
Instrumentalism in the Law of Trusts – The Disturbing Case of the Constructive Trust Upon an Express Trust
Authors: Rickett C EF
Published: June 2019

New Zealand courts have begun to use the device of imposing a constructive trust over assets already held on trust under an express trust. This device raises a number of important issues about whether a doctrinally damaging analysis should be used to achieve what are clearly instrumental designs usually termed justice or fairness. This article examines the issues in depth and argues strongly that the device of a constructive trust on an express trust is illegitimate.
The Property (Relationships) Act 1976 and Trusts: Proposals for Reform
Authors: Peart Nicola
Published: June 2019

Trusts often have the effect of undermining the social aims of the Property (Relationships) Act 1976. In the absence of legislative action, the courts have been sympathetic to a range of arguments aimed at accessing trust assets that would have been subject to division between the parties but for the trust. None of these judicial responses adequately addresses the current deficiencies of the Property (Relationships) Act or the potential detriment to trusts and their beneficiaries. This paper considers a range of potential reforms and argues that any reform should seek to strike a balance between the social aims of a relationship property regime and the right of owners to structure their property interests as they wish.
Should New Zealand Shirk Its Obligations? A Critical Perspective on Private Law Scholarship
Authors: Marten Bevan , McLay Geoff
Published: June 2019

This article concerns the role of the private law scholar in New Zealand, and how such scholars use their skills to improve the law. It argues that while an obligations scholar's preference may be to engage with the courts and other academics in their scholarly activities, a focus on statutory reform better suits New Zealand conditions. Scholars should share their talents with policy makers, law reform bodies and legislators, helping to explain the importance of a coherent system of private law, and how this may be achieved. The authors then go a step further by suggesting that, in the New Zealand context, the preferable approach to reform may be one involving policy-based solutions exemplified by the accident compensation scheme, as opposed to approaches based on traditional private law principles such as party autonomy.
Statutory Property: Is it a Thing?
Authors: France-Hudson Ben
Published: June 2019

Over the last several decades there has been a proliferation of property-type rights created by statute, particularly in the environmental management context. A key question has been how to approach these rights on a principled basis, particularly where Parliament has been silent about their precise nature. One response has been to put a gloss on these rights by classifying them as a new category of "statutory property". However, this article suggests that we should recognise that these types of rights are private property. This argument is based on the premise that private property serves a variety of social goals and not only individualistic ones. As a result, the institution of property is flexible enough to cater for the main concern driving this legislative vagueness, which flows from the risk that recognising rights as private property may serve to undermine the purpose for which property is being employed. This article develops this point with reference to legislation setting up individual transferable quota for fish and emissions units for greenhouse gases in New Zealand. It argues that the rights used by these schemes, although not explicitly articulated as private property, should be treated as such. It suggests that, providing the contours of the right have been structured carefully and the boundaries of the right clearly demarcated, it is desirable that the law of property fill in any resulting gaps not addressed by the legislation.
Health Practitioner Notification of Competence Concerns: Career Suicide v Patient Safety?
Authors: Miller Anita
Published: June 2019

This article examines the discretionary notification of competence concerns by health practitioners, through the lens of patient safety. The discretion, provided for in the Health Practitioners Competence Assurance Act 2003, is discussed alongside ethical obligations, factors that may inhibit raising concerns about substandard practice, and the arguments for and against mandatory reporting of incompetent practice. It concludes that the absence of a statutory obligation to notify such concerns creates a risk that problems will go unreported and that patients may be exposed to harm. Comprehensive research into the source of notifications, and practitioners understanding of the threshold for raising concerns, is recommended. It is also suggested that legislative change to require mandatory reporting in certain circumstances may need to be reconsidered.
The Health and Safety at Work Act 2015: the Myth of Increased Deterrence
Authors: Dabee Nadia
Published: June 2019

An assumption frequently made about the Health and Safety at Work Act 2015 is that the imposition of more responsibility on businesses and officers and higher criminal penalties will increase the deterrence of workplace accidents. This article argues that the anticipated increase in deterrence is a myth. In the new Act the definitions of duty-holders and their duties are broad and flexible. In theory, in the face of this broadness and flexibility, businesses who are risk-averse will over-comply with safety regulations to ensure they do not face a penalty. The new law appears to increase penalties and impose higher obligations on a greater number of duty-holders. However, in reality, the standard of care on employers remains unchanged, as do the enforcement mechanisms. Thus, in practice, the incentives to under-comply are higher than the incentives to over-comply and deterrence is unlikely to increase.
The Academic Endeavour: 1956–2016–????
Authors: Keith Kenneth J
Published: June 2019

Massive changes have occurred in the last 60 years in law teaching, legal practice and the law, and in the contexts, national and international, in which the law and legal processes operate. Further large changes are likely in the short as well as the long-term. What may be learned from the existing experience for law teaching and research and for the role of the academic as critic and conscience of society? This address was given at the Australasian Law Teachers Association (ALTA) 2016 Conference held in Wellington on 8 July 2016.
Some Thoughts on Legal Education
Authors: Palmer Geoffrey
Published: June 2019

As well as holding a practicing certificate for over 50 years, Sir Geoffrey Palmer has spent years teaching law, both in the United States and in New Zealand. Here, he reflects on his experiences of the law as a student, a practitioner and as a teacher and makes some observations about what this means for the discipline of law. The address concludes with the thought that what it means to be learned in the law is changing, and legal education has to change with it. Address delivered at the Australian Law Teachers Association (ALTA) 2016 Conference in Wellington on 7 July 2016.
The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?
Authors: Stace Victoria
Published: June 2019

This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establish a claim for contribution by one defendant against another, there is no need to find any greater degree of coordination between the liabilities other than that the plaintiff could pursue either defendant for its loss and either would be liable for it, in whole or in part. The underlying rationale is that by paying the plaintiff, the defendant who was pursued not only discharges itself but also discharges the other defendant's liability. If mutual discharge is established, the court then determines the amount of contribution based on what is just and reasonable in the circumstances. The Supreme Court's approach to the doctrine of equitable contribution, which is a significant change to previous law, bears similarities to the approach proposed in the leading text on unjust enrichment, raising the issue of whether a future claim for contribution could be approached using an unjust enrichment analysis.
"Busybodies, Cranks and Mischief-Makers": Revisiting Finnigan v New Zealand Rugby Football Union and the Pro Bono Ethos
Authors: Alexander Jack
Published: June 2019

Finnigan v New Zealand Rugby Football Union has assumed a prominent position in New Zealand's relatively short legal history. This is in part due to the legal principles established by the case – it is recognised as a leading case in both administrative law and sports law. The case is perhaps more notable for its social and historical significance – it is fondly remembered as "the case that stopped the tour". This article argues that the case is significant on two further levels. It is a little-known fact that the case was taken on an entirely pro bono basis. The premise of this article is that, without the pro bono ethos of the lawyers involved, one of New Zealand's most famous cases would never have eventuated. The second little-known element of the case is how the plaintiffs' lawyers tactfully avoided the common law doctrine of maintenance. The true significance of Finnigan v New Zealand Rugby Football Union is only realised when the case is examined from a wider perspective than has been done previously.
Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor
Authors: Geiringer Claudia
Published: June 2019

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.
Defence of Statutory Property
Authors: Bullock David AC
Published: June 2019

In "Statutory Property: Is it a Thing?" (2016) 47 VUWLR 411, Ben France-Hudson argues that tradable environmental allowances, like emissions units and fishing quota, are not "statutory property" and should instead simply be described and understood as "private property". In doing so, France-Hudson draws on a theory of private property as embodying norms of social obligation. This article defends the view of tradable environmental allowances as statutory property – though that term has a number of definitions – and argues that property in tradable environmental allowances can be explained by an orthodox understanding of the law of property.
Problems in Residential Tenancy Law Revealed by Holler v Osaki
Authors: Bennett Mark
Published: June 2019

This article argues that the recent series of judgments in the Holler v Osaki litigation reveals concerning features of our residential tenancy law contained in the Residential Tenancies Act 1986 and its application by the Tenancy Tribunal and the courts. The law relating to residential tenancies is important: it regulates both tenants' ability to access the basic need of shelter and to satisfy their desire for home, and the financial investments of landlords. It is meant to allow landlords and tenants to understand their rights and obligations so that they may apply the law to their situations without legal assistance. However, Holler v Osaki illustrates the vagueness and therefore uncertainty concerning key legal rules within the Act, which led to the pre-existing understanding of the law being upended and the paralysis of the Tenancy Tribunal's ability to deal with careless damage. This article also highlights inconsistencies in the decisions of Tenancy Tribunal adjudicators, who applied completely different interpretations of the law to substantially identical facts.
Brexit and the Future of English Law
Authors: Lloyd Jones David
Published: June 2019

Sir David Lloyd Jones was the 2017 Victoria University Law Dean's Fellow. The following is a revised version of the lecture given at Victoria University of Wellington on 23 August 2017 on the likely impact of Brexit on English law. It is based on the information available at that date.
Thinking outside the (Witness) Box: Integrating Experts into Juries to Minimise the Effect of Rape Myths in Sexual Violence Cases
Authors: Retter Amelia Erin
Published: June 2019

The criminal justice system's response to sexual violence has been increasingly recognised as an area needing attention. In particular, rape myths have a significant impact on whether a victim is believed or not, and this extends to the jury. Due to the potential effect of misconceptions about sexual violence on the jury's decision-making process, alternatives and additional tools have been suggested to minimise this impact. This article looks at options for moving forward such as increasing education and guidance for the jury, as well as changing the fact-finder, but ultimately advocates a new approach of integrating experts with knowledge about sexual violence and its realities into the jury itself. This would allow for responses tailored to each case to create an educative mechanism while maintaining lay participation, and have decisions that are based on accurate understandings of sexual violence.
First Laws: Tikanga Māori in/and the Law
Authors: Ruru Jacinta
Published: June 2019

This address is the 10th Shirley Smith Memorial Lecture given in Wellington on 18 October 2017. It considers the possibility for the enhanced role of first laws – the laws of Indigenous peoples – within contemporary settler legal systems.
Promoting Safety Through Law, National and International, and by Other Means
Authors: Keith Ken J
Published: June 2019

The Woodhouse family, friends of Sir Owen Woodhouse and the law faculties of the Victoria University of Wellington and the University of Auckland decided on the occasion of what would have been Sir Owen Woodhouse's 100th birthday that a fellowship and lectureship should be established in recognition of the great contributions he has made to law and policy in New Zealand and beyond. The fellows and lecturers are not to see themselves as limited to the law and are encouraged to address broader matters challenging people here and abroad. Sir Kenneth Keith gave the inaugural Sir Owen Woodhouse Memorial Lecture in Wellington on 29 August 2017 and in Auckland on 30 August 2017. The address considers in turn the dangers and perils at work, at sea and on the battlefield. It reflects on New Zealand's accident compensation scheme and suggests possible extensions to the scheme.