The Unity of the Common Law and the Ending of Appeals to the Privy Council

2005 ◽  
Vol 54 (1) ◽  
pp. 197-210 ◽  
Author(s):  
KJ Keith
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Privy Council ◽  
English Court ◽  
James Cook ◽  
Final Volume ◽  
The Common ◽  
The Law ◽  
Court Of Appeal ◽  
Do So

In 1769, by a nice coincidence, Captain James Cook made landfall in New Zealand, the first British mariner to do so, and William Blackstone published the final volume of hisCommentaries on the Law of England. Blackstoněs discussion of the application of the law of Englandto newly acquired colonies is not completely coherent, but it does give a strong sense that much, if not all, of the common law did come to apply to many, if not all, of them.1The Privy Council was reminded of this, with express reference to Blackstone, in November 2003 when it was asked to determine whether the rule inSmith v Selwyn,2a decision of the English Court of Appeal given in 1914, was part of the law of Jamaica.3

scholarly journals PASSPORTS, THE RIGHT TO TRAVEL, AND NATIONAL SECURITY IN THE COMMONWEALTH

2020 ◽  
Vol 69 (2) ◽  
pp. 365-395
Author(s):  
Paul F. Scott
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
National Security ◽  
Common Law ◽  
The United Kingdom ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Statutory Basis

AbstractThis article, on the basis of a consideration of the development of the law relating to the use of passports as a tool of national security in the United Kingdom, Canada, Australia and New Zealand, challenges the common law conception of passports, arguing that passports effectively confer rights and so, consequentially, that the refusal or withdrawal of a passport represents a denial of rights. From this conclusion a number of points flow. Though these consequences are most acute for the United Kingdom and Canada, in which passports remain regulated by, and are issued under, prerogative powers, there are also a number of points of significance for Australia and New Zealand, where passports have a statutory basis.

The Right to Indemnity between Master and Servant

1956 ◽  
Vol 14 (1) ◽  
pp. 101-111 ◽  
Author(s):  
J. A. Jolowicz
Keyword(s):  
Cold Storage ◽  
Common Law ◽  
Married Women ◽  
Law Reform ◽  
Recent Case ◽  
Legal Principle ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

The proposition that a master, who has become liable for an injury caused by a servant acting in the course of his employment, can recover an indemnity from the servant is one which has been stated on a number of occasions, but until the recent case of Romford Ice & Cold Storage Co. v. Lister no clear authority could be cited in support. It is true that the master's rights against his servant have been canvassed in at least three modern cases, but in all of them the common law position has been obscured by the application of the Law Reform (Married Women and Tortfeasors) Act, 1935. In Romford Ice & Cold Storage Co. v. Lister, however, by what those interested in legal principle can only regard as a happy chance, it was necessary for the Court of Appeal to deal with the matter independently of the Act.

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

scholarly journals A Question of Seduction: The Case of MacMillan v. Brownlee

1969 ◽  
pp. 447
Author(s):  
Thomas Thorner ◽  
G. N. Reddekopp
Keyword(s):  
Social History ◽  
Common Law ◽  
Detailed Account ◽  
Legal Issue ◽  
Privy Council ◽  
Administration Of Justice ◽  
The Common ◽  
The Law

In a detailed account of the action for seduction involving a former premier of Alberta and his stenographer, the authors review the decisions of the courts from trial level to Privy Council The common law and the effect of statute are discussed in an explanation and analysis of the law of seduction. By reviewing newspaper accounts of public reac tion to the lawsuit, the authors are able to provide both an interesting perspective on Alberta's social history and also a glimpse at an important yet often neglected legal issue: the public's perception of the administration of justice.

scholarly journals Doing “Practical Justice” for Duress in Contract Law

2009 ◽  
pp. 253-256
Author(s):  
M.H. Ogilvie
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Contract Law ◽  
Complex Case ◽  
Undue Influence ◽  
Trial Judge ◽  
English Court ◽  
Conflict Of Laws ◽  
The Common ◽  
Court Of Appeal

Cases of duress in contract law are few and far between. Most are concerned with improper threats or taking advantage of a weaker party to procure a contract rather than with actual physical threats of the “[y]our money or your life” variety, which are more likely to be controlled by the criminal law. A recent decision on a preliminary issue of law in relation to duress in the English Court of Appeal answered an interesting question that appears never to have been raised in earlier cases about duress, that is, whether rescission of a contract can be granted where restitution is impossible because one of the parties has destroyed documents relating to the contract as required by the contract so that they could not be restored. The trial judge found that rescission could not be granted and that no other remedy was available in the common law for duress, but the Court of Appeal reversed that finding by assimilating the fact situation with those in which equity has done “practical justice,” thereby further fusing the common law and equity relating to duress and undue influence, and possibly also fraud as well. The facts of this highly complex case, which also involved conflict of laws, mistake, frustration, and uncertainty have yet to be resolved at trial, but the Court of Appeal entertained two preliminary questions of law, duress, and conflict of laws before sending the case to trial. This comment is focused on the duress point.

scholarly journals The reception of the economic torts into New Zealand labour law: a preliminary discussion

1970 ◽  
Vol 12 (2) ◽  
Author(s):  
Gordon Anderson
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Basic Question ◽  
Labour Law ◽  
Labour Relations ◽  
Preliminary Discussion ◽  
The Common ◽  
The Law ◽  
The Impact

This discussion raises a nu1nber ojissues related to the introduction of the economic torts into New Zealand labour law during the 1970s. These include the question of whether such major innovations accorded with the principles normally accepted by comparative lawvers when considering legal transplants. and the basic question of whether the common law as developed in Britain is, in this case, suitable for New Zealand circumstances. The impact of the law in New Zealand is then outlined and the changes introduced hy the Labour Relations Act are briefly considered.

‘I, Me, Mine’: Bodies, Parts and Property

1998 ◽  
Vol 3 (4) ◽  
pp. 299-317 ◽  
Author(s):  
Andrew Grubb
Keyword(s):  
Common Law ◽  
Legal Protection ◽  
Recent Case ◽  
Body Parts ◽  
English Court ◽  
Commercial Exploitation ◽  
The Common ◽  
English Law ◽  
The Impact ◽  
Court Of Appeal

The idea that human bodies and their parts are ‘property’ has traditionally found little support in English law. By contrast, philosophers have mused at the prospect of persons owning themselves and the justice of self-ownership and its implications for the product of a person's labours. There are signs that the common law may be prepared to recognise that parts of a body are ‘property’ and subject to control by their source or another. In the recent case of R v Kelly, the English Court of Appeal decided that parts of corpses held as anatomical specimens were ‘property’ and could be stolen. The impact of the court's view may be considerable in respect of tissue and parts held by medical or other institutions for research, storage, archival or transplantation purposes; conferring legal protection where otherwise there would be none. What, however, of body parts or tissue taken from living persons? Is this ‘property’ and, if so, who has “rights” over it? The implications are considerable for patients and others, particularly researchers where commercial exploitation is envisaged.

‘If you look after me, I will leave you my estate’: The enforcement of testamentary promises in England and New Zealand

Legal Studies ◽  
2000 ◽  
Vol 20 (1) ◽  
pp. 85-103
Author(s):  
Sarah Nield
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Law Reform ◽  
Flexible Approach ◽  
Unpaid Care ◽  
The Face ◽  
The Common ◽  
The Law ◽  
Personal Context

Occasionally, a case comes to court in which a disappointed relative or other carer seeks the enforcement of a promise made by a testator to leave them all or part of their estate if the relative or other carer looks after them or provides some other service. This article compares and contrasts the courts’ response, in England and in New Zealand, to the enforcement of these testamentary promises. In England the courts have struggled to provide redress with the tools available from the common law and equity. Despite an array of possible remedies from contract to estoppel and restitutionary remedies, few claimants have proved successful. The sanctity of testamentary freedom and formalities has prevailed over the injustice caused to the disappointed carer. Yet in New Zealand testamentary promises are commonly enforced under the Law Reform (Testamentary Promises) Act 1949, a statute passed specifically to loosen the grip of testamentary freedom in the, face of such promises. Under the influence of this statutory impetus, the New Zealand courts have shown a liberal and flexible approach to the interpretation of this statute that is both interesting and enlightening. They have recognised that in the personal context of the testamentary promise traditional notions of contractual promises and consideration or detrimental reliance need to be rethought. Perhaps it is time for us also to rethink our approach to the treatment of those who provide unpaid care or other services when they have been led to expect some sort of testamentary recompense.

scholarly journals The Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor

2017 ◽  
Vol 48 (4) ◽  
pp. 547
Author(s):  
Claudia Geiringer
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Attorney General ◽  
Bill Of Rights ◽  
Close Analysis ◽  
The Common ◽  
The Relationship ◽  
Court Of Appeal

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.

scholarly journals Assignments and Transfers of Contractual Duties: Integrating Theory and Practice

2000 ◽  
Vol 31 (2) ◽  
pp. 317 ◽  
Author(s):  
Justine Kirby
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
Theory And Practice ◽  
The Common ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Rights

While contractual rights are usually assignable, the extent to which contractual obligations may be "assigned" or otherwise "transferred" is unclear. In this article, Justine Kirby examines the common law, section 11 of the Contractual Remedies Act 1979, and accepted methods of "transferring" obligations, and then compares the effects of a purported assignment of obligations under New Zealand, English and United States law.  She argues that the law should be clarified, and offers drafting suggestions to lawyers to give effect to parties' intentions while the law remains uncertain.  

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