Articles |
The Core Nature of Fiduciary Accountability
Robert Flannigan |
Likely reacting to the perception of a confused jurispru-dence, several writers recently have sought to clarify (or reconfigure) the core nature of fiduciary accountability. Their claims, including various assertions of prescriptive content, differ in significant respects. That discordance only fuels the perception of confusion. A review of the claims indicates that none of the normative arguments offer a superior conceptual apparatus for framing the conventional function of the regulation, and none justify prescriptive content. |
Interpretation and Rectification: Lord Hoffmann’s Last Stand
David McLauchlan |
In this article, the author analyses the recent decision of the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd concerning the law of contract interpretation and rectification. After explaining the difficult facts of the case and the reasons given by their Lordships for reversing the judgments of the lower courts on the interpretation issue, which were based on the plain meaning of the clause in dispute, the author discusses the further, albeit obiter, ruling that evidence of prior negotiations is inadmissible as an aid to interpretation. He argues that the reasons for this conclusion given in the main judgment of Lord Hoffmann are unconvincing and suggests that, in this respect, Chartbrook is unlikely to be followed by the New Zealand Supreme Court in view of that Court’s decision in Gibbons Holdings Ltd v Wholesale Distributors Ltd that evidence of subsequent conduct is admissible as an aid to interpretation. The author also discusses Lord Hoffmann’s ruling on the alternative claim in Chartbrook for the equitable remedy of rectification and suggests that, while his Lordship’s conclusion is correct, the reasoning is difficult and likely to generate further debate as to the requirements for granting that remedy.
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A Criminal Cases Review Commission For New Zealand
Simon Mount |
In recent years many in New Zealand have supported the creation of a Criminal Cases Review Commission. The purpose of such a Commission would be to investigate and report on alleged cases of miscarriage of justice, and to refer appropriate cases to the courts for further scrutiny. Similar bodies have existed in England, Wales, and Northern Ireland for the last 12 years, and in Scotland for the last 10 years. This article assesses the arguments in favour of such a body in New Zealand, and argues that the creation of a body modelled on the Scottish Commission would be a welcome development in this country. |
Courts in the Service of Democracy: Why Courts Should Have a Constitutional (But Not Supreme) Role in Westminster Legal Systems
Jason N E Varuhas |
This article proposes a normative theory of the relationship between the courts and Parliament in the determination of human rights issues in Westminster legal systems such as New Zealand and the United Kingdom. It argues that Parliament should retain the final authority to determine rights issues. Majority decision-making in large, representative legislative assemblies is the fairest, most respectful, and most egalitarian way for society to settle its disagreements about rights issues. However, because democratic decision-making procedures do not always operate as robustly as they should, the courts can play an important non-supreme constitutional role in facilitating the serious and rigorous consideration of rights issues by Parliament. The courts can principally perform this role by reviewing statutes for consistency with rights standards under a statutory bill of rights. Under such an institutional arrangement human rights issues will ultimately be determined in the most legitimate way, through democratic process, and with the requisite seriousness and rigour due in a democratic society committed to human rights. |
Reviews |
Constitutional Law
Philip A Joseph |
This commentary reviews five developments that have occurred since the last constitutional law commentary appeared (“Constitutional Law” [2006] NZ L Rev 123). The first involves last year’s general election and the government configuration settled upon under National Prime Minister John Key. These constitutional law commentaries have reviewed all five elections held since the introduction of the Mixed Member Proportional (“MMP”) voting system in 1996, and also the coalition and/or confidence and supply agreements entered into following each election. The other developments covered are: the decision of the Court of Appeal in Boscawen v Attorney-General [2009] 2 NZLR 229 (CA); the review of the Privileges
Committee which reported in May 2009 on Parliament’s freedom of speech in the context of court orders (Privileges Committee, Question of Privilege Relating to the Exercise of the Privilege of Freedom of Speech by Members in the Context of Court Orders [2009] AJHR I.17A); the realignment of the bias rules with the position in other common law jurisdictions (including reference to Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72); and (a first for these reviews) the Fiji Court of Appeal’s ruling on 9 April 2009 that the Fiji interim government under Commodore Josaia Voreqe Bainimarama was unlawful and a usurpation of the Fiji Constitution (Qarase v Bainimarama [2009] FJCA 9). Until now, these reviews have concentrated on New Zealand developments...
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The Treaty of Waitangi and Maori Custom Law
Kerensa Johnston |
This review examines two cases that illustrate the continuing problems that the courts encounter when asked to resolve tensions between common law rights and Maori custom law, or when Maori seek external remedies from the courts to address potential breaches of rights and natural justice in cases involving intra-iwi disputes. Both cases illustrate the need for iwi to develop robust internal dispute resolution processes that can be used before disagreements and uncertainties escalate to such an extent that legal action is the only viable option.
When those internal resolution processes do break down, however, there needs to be some way of addressing the breakdown effectively, so that relationships between iwi members and others can be rebuilt, rather than destroyed. The courts and the Waitangi Tribunal can assist in this process by considering how the best principles of the common law — fairness, equality, and process — can be applied compatibly with custom so that a proper review takes place in a way that allows the issues being contested to be considered fully. In some cases, mediation will help to achieve this outcome and in others, court orders or Waitangi Tribunal recommendations can help to direct iwi members towards a sustainable resolution.
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2009 Issues 
