“I know it when I see it”: equity’s place in commerce [LRF seminar on law of obligations, 6 July 2021]

With apologies to Jacobellis v Ohio (1964) 378 US 184 at 197 for purloining my title, I am to address:

  • proprietary remedies for breach of fiduciary duty, specifically constructive trusts and resulting trusts; and
  • third party liability for breaches of trust or fiduciary duty, specifically dishonest assistance and knowing receipt.
Continue reading ““I know it when I see it”: equity’s place in commerce [LRF seminar on law of obligations, 6 July 2021]”

Judicial decision-making: what do (trial) judges do? [ADLS seminar, 3 March 2020]


  1. This paper determinedly is addressed to an audience of working legal professionals. Addressing ‘what judges do’ to a broader audience would include championing the larger judicial role, as a constitutionally important and independent branch of government, administering and maintaining the rule of law as bedrock for the individual rights and freedoms of this democratic state’s citizens.[1] Without subtraction from that context, this paper focuses on the core of the judicial function: judicial decision-making at (predominantly, civil) trial. Continue reading “Judicial decision-making: what do (trial) judges do? [ADLS seminar, 3 March 2020]”

Electronic casebooks – a trial judge’s experience [NZLS seminar, 30 September 2019]


  1. The first significant use of electronic documents at trial in New Zealand was in the Serious Fraud Office’s Equiticorp prosecution in mid-late 1992 before Tompkins J.[1] At the time, international best practice commended judges have “a micro-computer”, “a floppy disk drive”, and “preferably a colour monitor”, with “access to the court system’s central computer”.[2] The standards emphasised such was not for ease of display, but for the judge’s engagement with the presented material, requiring software functionality for (and training in) electronic document creation, editing, and management. Continue reading “Electronic casebooks – a trial judge’s experience [NZLS seminar, 30 September 2019]”

“Loyal to what?”: the role of parliamentary opposition

“… political opposition is empowered and dignified in a democratic system, and… pays tribute to and teaches lessons about… ‘the provisional nature of political authority’ in circumstances of plurality.”

Andrew Little’s recent High Court victory, finding his commentary on aspects of a Niue holiday resort’s financing to be qualifiedly privileged from defamation liability, casts light into the shadows of Her Majesty’s Loyal Opposition’s constitutional role. Continue reading ““Loyal to what?”: the role of parliamentary opposition”

Avoiding unjust enrichment’s perils

“… an Aristotelian conception of justice”

New Zealand courts have long looked askance at claims of unjust enrichment, doubting such claims constituted causes of action in their own right (Real Cool Holdings Ltd v Northpower Ltd [2012] NZHC 1604 at [38]), and conscious of “the perils that might be thought inherent” in their reliance on perceptions of what was ‘just’ between the parties (Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2 NZLR 726 at [140]). Continue reading “Avoiding unjust enrichment’s perils”

“It’s not all about you”: limiting the Privacy Act’s intrusions

“The words ‘about an individual’ direct attention to the need for the individual to be a subject matter of the information.”

In Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA) – while noting what constituted ‘personal information’, defined as “information about an identifiable individual” for the purposes of the Privacy Act 1993, was not at issue in the case and remained “open for determination when it directly arises” – the Court of Appeal warned “An unqualified approach to what constitutes ‘information about an identifiable individual’ will lead readily to breaches of one or more of the information privacy principles”. The “unqualified approach” adds significantly to the Act’s regulatory costs – both in compliance, and in remedies for interferences with privacy. No appellate judgment since has interpreted the meaning of the Act’s ‘personal information’. Continue reading ““It’s not all about you”: limiting the Privacy Act’s intrusions”

Brexit: here come the lawyers

As a matter of “powerful constitutional principle”, no exercise of prerogative power alone is capable of altering domestic law

In  R (Miller) v Secretary Of State For Exiting The European Union [2016] EWHC 2768 (Admin), three of the English High Court’s most senior judges (personally and outrageously maligned as partial by the media, to the Lord Chancellor’s unforgiveable silence) last week found against the United Kingdom government’s position on the process by which the UK may withdraw from the European Union.  As well as providing for a frisson of local recognition by the judges’ reliance on Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC) (of which Brexit has populist echoes), the judgment presents substantial challenges to the UK government, not all answerable by its ‘leapfrog’ appeal (to be heard next month by all 11 Supreme Court judges, apparently to avoid any suggestion alternative results could be available from a differently constituted panel). Continue reading “Brexit: here come the lawyers”

“Fruit of the poisonous tree”? Remedying NZBORA breaches

Relying on courts’ obligation to give effect to NZBORA under its s 3, the Supreme Court held the exclusionary remedy could be said to have arisen “under” NZBORA

As evidence obtained by arguable police impropriety again hits the headlines (police use breath-testing checkpoint to obtain information on attendees at an Exit International euthanasia meeting), the Supreme Court has explained the Evidence Act 2006’s fundamental principle – all relevant evidence is admissible unless inadmissible or excluded “under” any statute – permits exclusion of such evidence in civil proceedings, if necessary to remedy New Zealand Bill of Rights Act impropriety. Continue reading ““Fruit of the poisonous tree”? Remedying NZBORA breaches”