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Improving Tribunal Decisions and Reasons
The Hon Justice Robert Fisher
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In 1790 Lord Mansfield CJ advised a Colonial Governor: "Consider what you think justice requires, and decide accordingly. But never give your reasons; for your judgment will probably be right, but your reasons will certainly be wrong."1 Nowadays we are more ambitious. But a tribunal's decisions and reasons must meet a number of legal requirements. These include adherence to the tribunal's founding instrument, conformity with natural justice, and observance of any applicable duty to give reasons. Before turning to those three requirements, it is useful to note the sources from which relevant principles may be drawn. To keep the exercise within reasonable bounds, the discussion that follows will be confined to statutory tribunals.
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Dealing with Economic Disparity: An Analysis of Section 15 Property (Relationships) Act 1976
Joanna Miles |
Section 15 of the Property (Relationships) Act 1976 is an important feature of the new system for property division on relationship breakdown that came into force in New Zealand in 2002. It supplements the basic equal-sharing rule with jurisdiction to make awards designed to redress outstanding economic disparity between the parties. However, the limits of s 15 are not easily identified. With a little effort, the general purport of the section can be discerned. But the particular basis on which it is to be implemented by a court, or by lawyers or parties settling cases, is not readily ascertainable from the text of the Act. The legislator has left rather a lot of work to be done by the judges and commentators, particularly in determining how to quantify awards under the section. This paper offers an analysis of s 15 and of judicial and academic commentaries addressing its implementation, alongside two other similar, yet crucially different, schemes dealing with economic disparity on relationship breakdown, and seeks to suggest a quantification scheme for s 15 cases. |
Medical Misadventure under Accident Compensation: Diagnosis and Treatment of a Problem?
Judith Ferguson
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This paper considers some of the discontent and problems that have emerged in the area of medical misadventure within the Accident Compensation Scheme, particularly with regard to some of the recent high-profile medical negligence cases. It puts forward possible explanations for the difficulties that have arisen, particularly in medical error cases, and considers the reform options currently under consideration. It is argued that factors such as the position of medical misadventure claims right on the cusp of the sickness exclusion, the inclusion of an apparent fault requirement, and the way in which lump sum payments have been dealt with under the scheme have all contributed to the current malaise. However, rather than trying to revive old practices under the scheme or restoring the right to sue, it is argued that strengthening and streamlining the machinery provided under the Health and Disability Commissioner Act 1994 could go a long way towards improving the outcomes for medical error victims and quelling some of the discontent. |
Reviews |
Criminal Law: Kevin Dawkins and Margaret Briggs
Employment Law: Paul Roth
Tort: Stephen Tod
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2003 Issues 
