1,720,979 research outputs found
Nervous Shock, Tort and Accident Compensation: Tort Regained?
No full textThis case note examines the recent Court of Appeal decision in Palmer v Danes Shotover Rafts dealing with the relationship between the common law and the Accident Compensation regime. The author acknowledges the practical importance of the Court's holding in Danes Shotover Rafts that plaintiffs who have not suffered physical injury can sue for nervous shock. The author contends that the case is, like the exemplary damages cases, yet another example of the complex interaction between common law and statutory compensation regimes. The author argues that the case may signal a judicial switch from a welfare or communitarian approach to the interpretation of the Accident Compensation scheme to a rights based approach and that gives primacy to common law rights rather than to the integrity of the Accident Compensation scheme. A wider view not based solely on the statutory provisions, or on the assumption that the common law or statutory compensation regimes "trump" one another, but one which views the interaction between the common law and statutory compensation schemes as dynamic, may lead to a greater understanding of the relationship between statutory tort reform and the common law
Sir Robin Cooke
Full text linkThis article is a tribute to Sir Robin Cooke after his death in 2006. Even though Sir Robin was an international figure of great renown, the author notes that the death of Sir Robin was felt more personal throughout Victoria University of Wellington's Faculty of Law. The article outlines Sir Robin's expertise and deep concern for the tradition of the common law, his admirable work ethic, and his passion for cricket
Circumventing Chapman: Bad law makes hard cases
No full textThe Supreme Court decision in Attorney – General v Chapman precluded the availability of public law damages in respect of breaches of the NZBORA which occur within the judicial process. Two recent High Court decisions in Putua v Attorney – General and Fitzgerald v Attorney – General circumvent the Supreme Court by attributing responsibility to actors other than the judge. Both decisions are outside the bounds of precedent. The first section of this paper analyses the policy behind Chapman to establish that the basis of the Supreme Court decision is unsatisfactory. Chapman is bad law. This provides the backdrop for the High Court decisions. The second part of the paper analyses the High Court judgments. The cases demonstrate that Chapman has a wide framework due to an obiter statement by the majority. This is why attempts to circumvent the precedent by attributing responsibility for rights breaches to other actors ultimately fall outside precedent. Bad law makes hard cases. As Fitzgerald v Attorney – General is being appealed there is an opportunity for the courts to fix the legal position. This essay concludes that if the appeal reaches the Supreme Court, the Court has two options. The Court could overturn Chapman as the policy reasons behind the decision are an inadequate basis for precluding public law damages. Secondly, the Court could uphold the decision but provide more robust principles or policies for doing so
Domain Name Disputes: Is Private Dispute Resolution Working?
No full textInternetNZ has responsibility for management of the .nz domain name space. This dissertation examines InternetNZ's development and implementation of the Dispute Resolution Service Policy (the DRS). The DRS, which is being reviewed in 2010, provides a substantive legal test for unfair registration of a domain name and a dispute resolution process. This dissertation asks whether the DRS is working effectively and, if so, what this reveals about the operation of the Internet in New Zealand. The dissertation shows that the DRS is a low cost, high quality alternative to litigation and is being run in a pragmatic but principled way by InternetNZ. Implications are discussed and recommendations are made for minor improvements. The dissertation concludes with a call for more participation in, and critique of, Internet policy developments given the important human rights issues that can arise and the significance of the Internet in New Zealand today
A Single Set of Rules for Henry VIII Powers Informed by Their Critiques
No full textThe Henry VIII Power has long been challenged as an objectionable delegation of power to the Executive. Given they are so objectionable, it is surprising that in New Zealand there is no bespoke set of rules to ensure their use is scrutinised and controlled. This paper provides these rules. It sets out a process through which instruments promulgated under a Henry VIII Power should pass. The rules aim to be efficient, transparent and mitigate the risk of misuse. The Paper provides a background on Henry VIII Powers in New Zealand and analyses their use case. To inform the rules, the paper taxonomizes, analyses, and challenges the various critiques of Henry VIII Powers. By challenging the critiques, the paper identified how critics under-value pre-legislative scrutiny and the power of the Court. Also revealed was how Burton and Drewery’s policy-administration taxonomy of legislation provided a better way to analyse the appropriate scope of a Henry VIII Power. Parliament’s perceived monopoly on scrutiny and the democratic nature of Henry VIII Powers were also elucidated through further analysis. The critiques not only inform debate, but also provide a basis for the draft rules. The paper suggests that instruments promulgated through Henry VIII Powers should be limited in scope to administrative matters, be approved by Parliament following reasonable scrutiny, and be prevented from altering particular statutes. The paper concludes the draft rules are a promising tool to better regulate and inspire further study of Henry VIII Powers
A Path to Reciprocity: Rebalancing the Tort of Private Nuisance after Fearn v Tate Gallery
No full textThe tort of private nuisance finds itself in an erratic state following the Supreme Court ruling in Fearn v Tate Gallery. This judgment has exposed a growing imbalance within private nuisance, jeopardising the principle of reciprocity that underpins the tort. Recent developments have witnessed the expansion of the scope of private nuisance, deeming more scenarios actionable nuisances with seemingly no constraint. When the doctrine becomes more favourable to plaintiffs without a corresponding adjustment to protect the interests of defendants, it raises concerns about the fairness of the tort and its loyalty to the principle of reciprocity.
This paper will investigate the various defendant adverse factors that the Fearn majority discuss. These include an overreliance on the "common and ordinary" use standard and a failure to consider the public interest, reasonable self-help measures, and planning permissions. Given the already extensive list of factors that weigh against defendants, the continued expansion of private nuisance without a re-evaluation of the side of the doctrine pertaining to defendants runs the risk of undermining the principle of reciprocity. Thus, in order to restore equilibrium to the tort, factors such as "coming to the nuisance" must be a relevant consideration when assessing liability. This is crucial to maintain an equitable balance between the interests of both claimants and defendants to a private nuisance claim. Only through such a reassessment can the tort of private nuisance remain grounded in the principle of reciprocity
Patent as a Generator Rather than Inhibitor of Drug Accessibility in Developing Countries: a Critical Examination of India's Patent Model
No full textPatent's reputation as a constructive mechanism in the developing world was not a
common notion. The prospect of utilising pharmaceutical patents to generate drug
accessibility in developing countries did not seem possible. However, little credit was
given to patents. Through motivating innovation, foreign investment, trade relations
and industrialisation, patents can form a prowess pharmaceutical industry in the
developing world. This thesis explores the possibility to increasing the availability of
low cost drugs in emerging economies through patent enforcement. The analysis
focuses on India as a case study. India has long been at the forefront of the developing
world fight for low cost drugs markets. This stand once meant the exclusion of patent
protection of pharmaceutical innovation and the formation of low cost copied generic
drugs industry. However given developing countries' recent submissions to the
international pressure to enforce patent protection on pharmaceutical innovations, it is
time to re-examine the role patents play in developing countries, this time in the
avenue of reducing drugs' pricing. India's current economy and the evolution of its
pharmaceutical industry evolvement, make it as an exemplary case study to utilise
patent to fulfil this end. Accordingly, the issue of widening the scope of patent
protection in India to include pharmaceutical incremental innovation is examined.
Notwithstanding the responsibility of India to endorse wider patent scope, legally and
practically, the thesis does not ignore the moral obligation the developed world has
towards India's poorer population to offer low cost drugs during the stages of its
pharmaceutical industry emergence. The preliminary justification to conduct this
observation is to show that patent is not only to answer the healthcare needs of the
developed world population, but also the developing world. As such the thesis argues
that India ought to stand at the forefront again, this time, demonstrating the potential
within patent to establish low cost patented pharmaceuticals marketplace in
developing countries
Symptoms of neglect: Trust claims under the Limitation Act 2010
No full textNew Zealand's limitation legislation was overhauled with the enacting of the Limitation Act 2010. Despite this comprehensive reform, the way in which trust claims are best to be addressed appears to have been largely overlooked in the reform process. Consequently, the multitude of historic issues that have plagued statutory provisions dealing with trust claims endure in the 2010 Act, with the few changes to the structure of drafting compounding these problems. This paper explores the policy considerations at work, and, by way of example, undertakes a thorough analysis of the exception for fraudulent breaches of trust in light of these policy considerations to illustrate some of the new problems that are bound to arise in practice. Given the numerous and significant difficulties, and the substantial implications for parties seeking to rely on these provisions, this paper argues that a broad reconsideration of the way in which trust claims are dealt with in the 2010 Act is urgently needed
Toward a History of New Zealand Legal Education
Full text linkThis article briefly discusses the history of New Zealand Legal Education, with a focus on Victoria University of Wellington. The first part of this paper introduces the American and English models of legal education, discussing the different tensions and contexts of each jurisdiction. The second part of the paper introduces the history of legal education in New Zealand. The author discusses New Zealand's departure from the English model (where a degree was not necessary to practise), academics' tradition of writing textbooks in New Zealand, and the influence of the American legal education system. The third part of the paper discusses the impact of Professor John Salmond and Sir Robert Stout at Victoria University of Wellington. 
Vindicatory Damages in the Child Welfare Tort Cases
No full textThis thesis argues that vindicatory damages should be available in the child welfare tort cases against
public authorities. These are cases in which the plaintiffs sue public authorities either for not
protecting them from harm when they were children, or where it is alleged that the authority’s
employees abused the children while in its care. Vindicatory damages would be intended to mark the
wrong to the plaintiff, rather than attempting to compensate the consequences. This thesis argues in
support of the availability of a separate head of vindicatory damages in tort law, including negligence,
and explores some of the liability issues which arise in these cases, including vicarious liability,
liability for omissions and liability in negligence for the way in which a statutory power is exercised or
for a breach of a statutory duty. New Zealand's accident compensation scheme is also discussed: it is
argued that vindicatory damages in tort law should not be barred by the scheme
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