Some Issues in the Assessment of Expectation Damages
DAVID MCLAUCHLAN |
This article examines some issues of principle that affect the quanti-fication of damages for breach of contract. To illustrate the issues, it begins with a study of four modern cases, including the important recent decision of the House of Lords in The Golden Victory. It then discusses the importance, before beginning to assess damages, of identifying the content of the contractual obligation breached and accurately categorizing the loss or losses in respect of which damages are claimed. This is followed by an analysis of the commonly perceived difficulties of combining wasted expenditure and expectation claims, and an outline of the different methods of calculating damages that will alleviate the danger of double recovery. The remainder of the article analyzes the various strands of the difficult case law, largely neglected by academic commentators, concerning the distinction between compensating advantages that reduce the damages recoverable by the plaintiff and so-called “collateral benefits”, which do not.
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The Religion Clauses of the
New Zealand Bill of Rights
PAUL RISHWORTH |
The religion clauses in ss 13 and 15 of the New Zealand Bill of Rights Act 1990 have not attracted much litigation to date. This contrasts with recent experience in the United States and Europe, and, to a lesser degree, Canada, in regard to freedom of religion. But there exists considerable potential for litigation in New Zealand, not least because most types of controversy from which litigation emerges in those other places have strong parallels here. These relate to the place of religion in politics, in education, and in public life and ceremony, and the use of religion as a possible reason for exempting religious persons from otherwise general laws. Increased secularization, and immigration of minority religious communities, makes it more likely that religious freedom claims will arise. This article first explores the possible application of s 13, in particular arguing that its guarantee of freedom of religion extends to a freedom from religion. Given that conception, the New Zealand Bill of Rights Act 1990 can speak to many of the issues that generate litigation in other countries. But it is then necessary to inquire what the religion clauses actually mean in the New Zealand context. The second part of the article suggests that, when making that inquiry, assistance may be found in our past record of resolving religious freedom issues. While New Zealand does not have much in the way of court-generated jurisprudence, Parliament has over the years made accommodations and adopted positions on several of the issues that now attract the attention of courts elsewhere. While those positions could not be tested by litigation prior to enactment of the New Zealand Bill of Rights Act 1990, it may well be that, taken as a whole, they reflect an underlying set of principles for resolving post-enactment claims in the religious field. In that sense, the record may constitute a sort of “indigenous religious freedom jurisprudence” that can serve at least as a starting point to assist in any future litigation.
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The “Offer Back” Provisions
in the Public Works Act 1981:
Former Owners Chase Potential Spoils
ELIZABETH TOOMEY |
Section 40 of the Public Works Act 1981 has been scrutinized by our courts at all levels. This article details the extensive litigation concerning that provision since the author’s last article in 2000. The number of complex decisions in the past seven years has increased dramatically. This is all the more surprising as they succeed the publication of the public discussion paper, Review of the Public Works Act: Issues and Options, in 2000. Chapter 5 dealt with the “offer back” procedure and suggested a number of reforms. In 2007 there appears to have been no further progress on this discussion paper. In the meantime, litigation on s 40 of the Public Works Act 1981 continues to flow as former owners, or their successors, chase potential spoils. This article categorizes the contentious issues, providing an easy reference source and, where relevant, short summaries of earlier litigation precede substantive comment. Several decisions in this article are currently subject to further appeal.
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Judicial Remedies for the Original Breach?
HANNA WILBERG |
The establishment of Pakeha-dominated self-government in New Zealand was in breach of the Treaty of Waitangi. As a result of that breach, Maori Treaty rights continue to be at the mercy of the Pakeha majority. Given currently poor prospects of constitutional change, commentators have suggested a judicial initiative to give greater effect to the Treaty. This article explores and evaluates options for such a judicial initiative. The current legal effect of the Treaty is discussed to establish just how much judicial initiative may be required. The evaluation of the proposals concludes that in terms of constitutional legitimacy, even a judicial initiative to give full constitutional effect to the Treaty could be defended. However, doubts remain as to the wisdom of pushing judicial initiative too far.
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Shipping Law
PAUL MYBURGH |
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Tort
STEPHEN TODD |
This review considers aspects of negligence (psychiatric injury and primary victims, negligent diagnoses, duty to control mentally disordered patients, and public bodies acting outside power), misfeasance and damage, deceit between spouses, inducing breach of contract and causing loss by unlawful means, conversion of choses in action, unauthorized photographs and breach of confidence, and accrual of causes of action.
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2007 Issues 
