“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]

Introduction

  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]

Introduction

  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”

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”

“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””