Judicial review

Going beyond its “proper sphere”?

A shifting majority (a ‘mobile plurality’?) of Supreme Court judges enabled both sides to claim some success in Ririnui v Landcorp Farming Ltd [2016] NZSC 62 (9/6/16), and enhanced the scope for judicial review of the Crown’s commercial and policy decisions, at least where vitiated by material errors, as unlawful exercises of public power. Continue reading “Judicial review”


Judges and judging

“The unique stressors of judicial life”

Last year, the country’s 46 High Court judges and associate judges, hearing cases at 18 High Court locations around the country, managed from circuits in each Auckland, Wellington, and Christchurch in comparable proportion to their catchment, delivered over 3,300 judgments – roughly 1.5 judgments per judge per sitting week, well over 90% within three months of hearing. Continue reading “Judges and judging”

Understanding family violence

“Law reform makes less of a difference”

Day after day, week after week, judgments roll out from the courts, accounting for offenders’ months and years committing awful family violence, often of reoffending broken by lengthy prison terms during which offenders only lacked opportunity to demonstrate their propensity for horrific domestic abuse. The judgments dispassionately narrate offenders’ brutal conduct, identify aggravating cruelty, and search for any mitigating factors, before establishing by reference to a distressing volume of comparable cases a starting point for sentencing. Despite decades of concentrated law reform, nothing seems effective to combat aggressors’ determination, literally, to bend and break another independent but intimate being to their will. Continue reading “Understanding family violence”

Contract and Commercial Law Bill

Revision’s “peculiar pleasures and… peculiar frustrations” (Vikram Seth)

A century’s worth of contract and commercial law statutes is modernised and consolidated by the 222 page Contract and Commercial Law Bill introduced to Parliament last week, the first major statute law revision exercise in New Zealand for over 100 years, with objectives of increasing accessibility and reducing regulatory cost. It is, on any view, an extraordinary and thoughtful accomplishment by the Parliamentary Counsel Office, whose explanatory materials bear reading. Continue reading “Contract and Commercial Law Bill”

Consumer protection and the rule of law

“… a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”

None should think the Supreme Court’s dismissal last week, of credit providers’ appeals against findings their fees were unreasonable, is a ringing endorsement of the Credit Contracts and Consumer Finance Act 2003’s (CCCFA) regulation of credit and default fees charged by financiers to consumers under consumer credit contracts. Continue reading “Consumer protection and the rule of law”

“Plea bargaining”

World famous in New Zealand

A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand, and the United States” (Marcus and others, 57 Wm & Mary L Rev 1147 (2016)) provides a timely and informative backdrop to last week’s media commentary on “plea bargaining”, in connection with the reduction from murder to manslaughter charges to which three year old Moko Rangitoheriri’s carers (while his mother attended another child in hospital) pleaded guilty. Continue reading ““Plea bargaining””

Being relevant

Courts contemplate their place in the world

In extracurial speeches, senior Commonwealth judges recently have been querying courts’ roles in delivering civil justice.

Identifying a gap in the market for services to a specialised form of participant, the “involuntary self-represented litigant” (to be distinguished from the “querulent” in pursuit of “self-obtained justice”), the Court of Appeal’s Justice Kós – drawing heavily on European civil law experiences – proposes a closely managed and partially inquisitorial process in the District Court. In his address to the Arbitrators’ and Mediators’ Institute of New Zealand and International Academy of Mediators Conference in Queenstown in March 2016 (“Civil Justice: Haves, Have-nots and What to Do about Them”), Justice Kós drew on the High Court Rules’ objective of “the just, speedy and inexpensive determination” of civil disputes to note the justice and efficiency deficits attributable to unrepresented litigants. Continue reading “Being relevant”

W(h)ither privacy?

Social media takes its toll

A result remains awaited from the UKSC’s urgent hearing last Thursday of an appeal against the EWCA’s reversal the previous Monday (PJS v News Group Newspapers Ltd [2016] EWCA Civ 393) of the interim injunction it granted to PJS in January 2016 ([2016] EWCA Civ 100). At issue was NGN’s intention to publish an account of PJS’s extramarital sexual activities. Continue reading “W(h)ither privacy?”

Vexing litigants – can courts do this?

The Supreme Court this week directed its Registrar to refuse to accept any applications challenging specified Court of Appeal and Supreme Court decisions, including any challenging that refusal. How far may courts go in regulating abuse of their processes? Does the contemporary rise of persistent litigants justify their outright prohibition?

In Creser v Creser [2016] NZSC 34, Mr Creser filed a third recall application consequent on dismissals of each his application for leave to appeal against a Court of Appeal judgment, and his two subsequent recall applications. Finding Mr Creser’s conduct to be an abuse of process, the Supreme Court directed its Registrar to refuse to accept any applications involving challenges to those decisions, its present judgment, and “any future decision of the Registrar refusing to accept such applications”. Continue reading “Vexing litigants – can courts do this?”

Living a life vicarious – on the move and yet to stop

Vicarious liability extends beyond employment relationships

Two recent United Kingdom Supreme Court judgments – Cox v Ministry of Justice [2016] UKSC 10, and Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 – illustrate vicarious liability may be developing to offer plaintiffs significant opportunities in defendant shopping, to increase insurers’ exposure to claims for such liability, and to give businesses added caution in dealing with customers and clients. Continue reading “Living a life vicarious – on the move and yet to stop”

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