Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

scholarly journals R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability

2012 ◽  
Vol 50 (1) ◽  
pp. 157
Author(s):  
Lewis N. Klar, Q.C.
Keyword(s):  
Supreme Court ◽  
Public Authority ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Tort Liability ◽  
Public Authorities ◽  
The Supreme Court ◽  
Regulatory Functions

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.

scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

2019 ◽  
Vol 78 (3) ◽  
pp. 545-569
Author(s):  
Tom Cornford
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
Duty Of Care ◽  
Public Authorities ◽  
The Public ◽  
The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

scholarly journals L'effectivité des décisions de justice en droit public interne [constitutionnel]

2005 ◽  
Vol 26 (4) ◽  
pp. 995-1003
Author(s):  
Louis-Philippe Pigeon
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
Canadian Charter ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
High Degree ◽  
Political Character ◽  
Limited Scope

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement. Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

scholarly journals The Needs of the Many and the Needs of the Few: A New System of Public Interest Intervention for New Zealand

2005 ◽  
Vol 36 (1) ◽  
pp. 71
Author(s):  
Edward Clark
Keyword(s):  
New Zealand ◽  
Public Interest ◽  
Comprehensive System ◽  
Supreme Court Of Canada ◽  
The Public ◽  
Adversarial System ◽  
The Supreme Court ◽  
Judicial Lawmaking ◽  
The Many ◽  
New System

The traditional adversarial system sees the courts as simply a means of resolving disputes between private parties. The dispute is thus no one else’s concern but the parties’. This view of the courts’ role, however, fails to take into account judicial lawmaking. If a person is affected by an act of lawmaking, it is only just that they should have a chance to be heard. Further, before they make a decision the courts should understand the perspectives of those who will be affected by the rule laiddown.This article argues that allowing affected nonparties to make submissions as public interest intervenors will assist both the affected persons and the courts. In order to balance the interests of the parties, the intervenors, and the public at large effectively, a comprehensive system of rules that both welcome and regulate public interest intervention is needed. This article recommends the adoption of such a system of rules, substantially based on the effective and well established rules on intervention contained in the Rules of the Supreme Court of Canada.

scholarly journals Impressions of Life and Law on the High Court Bench

2018 ◽  
Vol 49 (3) ◽  
pp. 297
Author(s):  
Matthew SR Palmer
Keyword(s):  
New Zealand ◽  
Public Law ◽  
High Court ◽  
Public Lecture

The following is a public lecture given at Victoria University of Wellington on 27 March 2018, organised by the New Zealand Centre for Public Law. In it Justice Matthew Palmer compares his impressions of life and law on the High Court Bench with that in practice and in academia.

scholarly journals Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence

2016 ◽  
Vol 47 (1) ◽  
pp. 19
Author(s):  
Scott William Hugh Fletcher
Keyword(s):  
New Zealand ◽  
City Council ◽  
High Court ◽  
North Shore ◽  
The Law ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Insight Into ◽  
Consistent Application

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.

scholarly journals A New Perspective on the Public–Private Divide? Justiciability of Government Contracting Decisions Following Ririnui and Problem Gambling

2018 ◽  
Vol 49 (1) ◽  
Author(s):  
Caleb O'Fee
Keyword(s):  
New Zealand ◽  
Problem Gambling ◽  
Judicial Review ◽  
Public Law ◽  
Government Contracting ◽  
The Public ◽  
Proper Role ◽  
The Supreme Court ◽  
New Perspective ◽  
State Of Affairs

Behind every theory of administrative law lies a theory of the state. Nowhere is this more apparent than in the application of judicial review to government contracting decisions. New Zealand courts have long struggled to adopt a consistent and coherent approach in this area, and two recent decisions of relevance do very little to improve the situation. This article argues that a decision of the Supreme Court in Ririnui significantly broadens the scope of justiciability of government contracting decisions by providing an exception to Mercury Energy. The Court of Appeal's approach in Problem Gambling is more cautious but has nevertheless resulted in a broadening of the range of circumstances where government contracting decisions will be subject to judicial review. Beyond these limited findings the law both in New Zealand and overseas continues to lack consistency and coherence. This article suggests that while this state of affairs is undoubtedly the result of the application of a public law cause of action to a context which sits on the public law–private law divide, the courts should stop relying on an inconsistent doctrine and recognise that cases are being decided on the basis of normative conceptions of the proper role of judicial review in this context.

scholarly journals THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES - A CENTENARY REFLECTION

2012 ◽  
Vol 16 (1) ◽  
pp. 45-78
Author(s):  
Michael J Kirby CMG
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia ◽  
Federal Supreme

In October 2003 in Melbourne, the High Court of Australia celebrated the centenary of its first sitting.  According to the Australian Constitution, it is the “Federal Supreme Court” of the Australian Commonwealth.1  Although the Constitution envisaged the establishment of the High Court, the first sitting of the new court did not take place until a statute had provided for the court and the appointment of its first Justices.  They took their seats in a ceremony held in the Banco Court in the Supreme Court of Victoria on 6 October 1903.  Exactly a century later, the present Justices assembled in the same courtroom for a sitting to mark the first century of the Court.

scholarly journals Reasonable and Probable Cause in the Law of Malicious Prosecution: A Review of South African and Commonwealth Decisions

2017 ◽  
Vol 16 (1) ◽  
pp. 240
Author(s):  
Chuks Okpaluba
Keyword(s):  
South African ◽  
New South ◽  
Supreme Court Of Canada ◽  
Trial Court ◽  
High Court ◽  
South Wales ◽  
The Supreme Court ◽  
State Of Mind ◽  
The Law ◽  
Available Information

The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.

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