Questioning Prospective Overruling
BEN JURATOWITCH |
In Re Spectrum Plus (in liq) [2005] 2 AC 680, the House of Lords said that it is theoretically possible for a judgment to be overruled with prospective effect only. In Chamberlains v Sun Poi Lai [2007] 2 NZLR 7, two members of the New Zealand Supreme Court also accepted that possibility. Such a view, however, is a departure from the usual retroactive effect of judicial decisions that develop or change the law, and is open to question on two grounds. First, it is incompatible with the primarily adjudicative function of common law courts, because it may result in a court applying one rule to the case before it and simultaneously announcing a new rule for future cases, inconsistent with the rule being applied. Second, it disrespects the requirement of the rule of law that legal rules be general in their application, because, under most forms of prospective overruling, whether the new rule or the old rule will apply is determined by the arbitrary factor of when proceedings were determined or commenced. |
Reliance Damages for Breach of Contract
DAVID MCLAUCHLAN |
Although much of the argument in Fuller and Perdue’s famous article, “The Reliance Interest in Contract Damages”, has now been convincingly refuted, its terminology continues to have a pervasive influence on judicial and academic accounts of the law relating to damages for breach of contract. This article argues that it is time to jettison use of the terms “reliance interest”, “reliance loss”, and “reliance damages” from the language of the law relating to damages for breach of contract. The terms are unhelpful and misleading. They are a hindrance to endeavours to provide a readily comprehensible account of the law. They place irrelevant conceptual difficulties in the way of heads of damage that ought in principle to be recoverable. And they can lead to unnecessarily complicated or confused reasoning in reaching decisions on damages awards. |
Is Three Really a Crowd? Evaluating the Use of Victim Impact Statements Under New Zealand’s Revamped Sentencing Regime
PETER SANKOFF |
This article explores the use of victim impact statements, and how the effectiveness of such statements has been influenced by court-imposed restrictions. The article considers two competing approaches that the judiciary has applied to victim impact statements: an “information” model, which limits the use of such statements to traditional criminal justice goals, and a “victim satisfaction” model, which aims to serve victims themselves. The rise of the two distinct approaches stems from disagreement about whether victim participation risks compromising traditional justice aims. The primary contention is that restricting the participation of the victim along the lines of the information model risks undermining the purposes for which the new legislation was enacted and limiting the benefits it intended to achieve. Although there are risks to focusing exclusively on restorative goals, it is not clear that advancing victim satisfaction as a secondary purpose necessarily inhibits the established aims of the sentencing process. |
A Critique Of Recent Approaches To Discrimination Law
NICHOLAS SMITH |
The difficulties faced by jurisdictions comparable to our own in interpreting discrimination law are well-known. The typically abstract language of these laws inspires moral and political debate rather than facilitating uncontroversial adjudication. This article discusses two contemporary and allied jurisprudential approaches to this body of law and finds them wanting. It is concluded that the substance of “substantive equality” is elusive. There is no consensus amongst those concerned with the effects of discrimination about the issues underlying the dispute between “substantive equality” theorists and the “equal treatment” school. Furthermore, those who think that the essence of discrimination is the impairment of “dignity” are not able to show how that idea makes this area of law any easier to understand. While the notion of human dignity may inspire our commitment to human rights and equality, it is too large an idea to make the interpretation of discrimination law less problematic. |
Facing Up to the Original Breach of the Treaty
HANNA WILBERG |
The grant of representative and responsible government to British colonies such as New Zealand in the nineteenth century is generally seen as a natural and desirable historical development. This article invites the reader to step back and consider the matter from the point of view of consistency with the Treaty of Waitangi.
REVIEW: TREATY OF WAITANGI |
2007 PART III
