Article

Awarded the MinterEllisonRuddWatts Writing Prize

The Institutional and Doctrinal Roles of “Conscience” in the Law of Contract

By Jesse Wilson

The language of conscience increasingly pervades the private law. This takes a number of forms, including specific doctrines such as “unconscionable dealing” and elements within other doctrines such as promissory estoppel. In some common law jurisdictions it also takes the form of statutory provisions that prohibit, for instance, “conduct that is unconscionable within the meaning of the unwritten law”. In these and other legal contexts, the law has recourse to conscience or its converse concept, unconscionability, as a determinant of legal rights and obligations. The legal rules, in other words, are “explicitly anchored in conscience”. This has led some to call for “an urgent stocktake” of the present state of the law.

The core claim of this article is that conscience-based standards do not subvert contract law provided that their institutional and doctrinal roles are properly construed and limited. In support of that claim, this article addresses the historical and jurisprudential bases for the intervention of the courts through conscience-based doctrine in the transactions of private parties.

Article

The Impact of Jennings v Buchanan on Freedom of Speech and Defamation: The Erosion of Parliamentary Privilege?

By Julia Harker

Parliamentary privilege was conceived in the wake of the Glorious Revolution of 1688–1689. Article 9 of the Bill of Rights 1688 represents the culmination of the English House of Commons’ struggle for parliamentary supremacy and freedom of speech in debate. More than three centuries since the Bill of Rights was enacted, however, there is still uncertainty both as to the necessary ambit of the protection provided by art 9, and as to the boundary between that which is solely within the jurisdiction of Parliament and that which is legitimately within the competence of the courts. Such boundaries have become the subject of heightened scrutiny in areas of civil law such as defamation, where the art 9 privilege collides with the rights of ordinary citizens to protect their reputation. These issues have been brought into sharp relief by the recently decided New Zealand case Jennings v Buchanan. This article examines Jennings to determine whether there has been an erosion of the protection afforded by parliamentary privilege to Members against defamation actions.

Article

An Analysis of Passing On in New Zealand: The Employer’s Duty to Manage Concurrent Bargaining in a Mixed Workplace

By Ronelle Barnes

The employer’s duty to manage concurrent bargaining in a mixed workplace has long been a topic of great interest. Unions have also been concerned with the tactic of passing on and the consequential effects of free-riding. These two issues have recently come to the fore with the enactment of the Employment Relations Amendment Act (No 2) 2004. Employers, now more than ever, must carefully consider their tactical approach to both individual and collective bargaining. Unions now have the opportunity to address the issue, which has caused them grief since the decline of compulsory membership. This article explores how the new passing on and bargaining fee provisions (ss 59A–C and pt 6B respectively) will operate in practice to address free-riding from the perspectives of an employer, union and a non-union member.

Article

Celebrity Privacy after Hosking v Runting: Entertaining the Public with Private Lives

By Bridget Carnachan

When Samuel Warren and Louis Brandeis wrote about the “right to privacy” in their landmark 1890 article, it is unlikely that they could have foreseen the extent to which their thesis would ring true in later years. When they acknowledged that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life” they could not have imagined the pervasive technology that was to come, in the form of high-speed internet, digital cameras, telescopic lenses and pxt-capable cell phones. The proliferation of news and media industries, the ascent of tabloid journalism, and the increasing “celebritisation” of society have brought personal privacy concerns to the forefront of legal debate. Society places great store on personal privacy yet thrives on publicity. It condemns the media for intrusion one day and chases the whiff of scandal the next. In an era of increasing “bonk journalism”‘ with its emphasis on sex and scandal and celebrity faux pas, the essential question is whether, even if a public figure courts media attention, he or she is left with a residual area of privacy which the court should protect.

Article

A Conversation at an Impasse: Assessing the Value of Contract Economics

By Eesvan Krishnan

Imagine the following scenario. A legal economist has delivered a well-received seminar on the latest theories of contract economics — the economic analysis of contract law. After the seminar, the economist adjourns to the nearest pub with two old friends from law school. One is a non-economist contract scholar. The other is a judge. The conversation reaches an impasse. One gets the feeling that the three friends are talking at cross-purposes. Each is trying to question or defend the value of contract economics as a legal theory, but each has different expectations of the theory. How do we mediate between these expectations? Which expectations are valid and which should be discounted? Which friend is correct? The purpose of this article is to explore these questions.

Article

A History of Taxing Married Women in New Zealand

By Nicola Jones

In taxing income, a government has two choices. It may tax the individual, or it may choose to tax the marital unit and impose a tax on a married couple’s joint income. When income tax was initially imposed in 1891 it was charged on individuals, rather than married couples. This has not remained a consistent choice over time. This article examines the repeal (in most circumstances) of the aggregation of income provisions in New Zealand’s income tax legislation in 1960. In particular, the focus is on the effects of this change on taxpayers, and more specifically, on married women.

Case Notes

The Demise of Barristerial Immunity in New Zealand?

Lai v Chamberlains (8 March 2005) unreported, Court of Appeal, CA 17/03.

By Kyle Nevin

A recent decision of the Court of Appeal in New Zealand allowed an application to strike out the defence of barristerial immunity to an action in negligence. Generally lawyers are accountable for negligent performance of their professional responsibilities that results in loss to their clients. Until Lai v Chamberlains however, barristers in New Zealand were immune from negligence claims relating to work in court and to pre-trial work intimately connected with the conduct of a case.

Taione v Kingdom of Tonga

By Anna Rosevear

In 2003, the Tongan parliament enacted a tripartite of laws, attracting criticism from Western countries such as New Zealand which usually ignore this tiny Pacific nation. Pursuant to the Constitution of Tonga (Amendment) Act 2003, the Constitution’s protection of free expression was significantly restricted. Moreover, the new Newspaper Act 2003 and Media Operators Act 2003 provided for government officials to control media licensing, dictate appropriate newspaper content and prevent the importation of foreign newspapers.

In October 2004, the Supreme Court (equivalent to the New Zealand High Court) delivered a landmark decision for the legal history of Tonga, Taione v Kingdom of Tonga. This proceeding, brought by 173 plaintiffs, was the first ever proceeding to challenge the validity of an amendment to the Constitution since it was granted in 1875. The Court held that both the Newspaper Act 2003 and the Media Operators Act 2003 were void and invalid.

Life or Death in the Privy Council

By Nicholas Sage

In what may yet be looked back upon as the last throes of the Caribbean appeal to London, a nine-strong Privy Council delivered judgment on three death penalty cases and declined the invitation to bring about bill-of-rights-compliance by modifying statutes that provided: “Any person convicted of murder shall be sentenced to, and shall suffer, death”.

Boyce v The Queen [2005] 1 AC 400; Matthew v State of Trinidad & Tobago [2005] 1 AC 433; and Watson v The Queen [2005] 1 AC 472 were appeals from Barbados, Trinidad and Tobago, and Jamaica, heard concurrently by a Judicial Committee comprising eight Law Lords and a former Chief Justice of Jamaica. In each case, the Board had to consider the inter-relationship of a similar set of constitutional and statutory provisions.

This note focuses on the Law Lords’ contribution to two current controversies in interpretive method. The first concerns the limits of judicial powers to construe or modify statutes into rights-consistency: specifically, how can interpretation or modification powers be approached in order to ensure that rights-consistency is not produced in an arbitrary fashion? The second controversy concerns the limits of the “living tree” approach to constitutional interpretation.

The Peculiar Nature of GST Avoidance

By Helen Wells

Ch’elle Properties (NZ) Ltd v CIR (2004) 21 NZTC 18,618 (HC) is the first case in New Zealand in which the taxpayer tried to extract a large amount of money from the Inland Revenue Department (IRD) in the form of tax refunds. The carefully arranged scheme was based on the mismatch of the GST registration bases. Had the arrangement been successful, it would have been akin to obtaining an $80 million loan on an interest-free basis, without any repayments being due for twenty years. Despite being legitimate, on a strictly literal interpretation of the law, the claim for tax refunds was declined by the Commissioner who considered that the arrangement was set up for the tax advantages it could obtain and that tax avoidance under section 76 of the Goods and Services Tax Act 1985 had occurred. This note examines the factual background that gave rise to the taxpayer’s claim and the findings of the Court.

Legislation Note

The Repeal and Resurrection of “Responsibility”

Fiscal Responsibility Act 1994

By Chye-Ching Huang

Book Reviews

Equity, Restitution & Fraud – John Glover

By Vicki McCall

Advocacy – David Ross QC

By Isaac Hikaka