scholarly journals Takamore v Clarke: An Appropriate Approach to the Recognition of Maori Custom in New Zealand Law?

2013 ◽  
Vol 44 (1) ◽  
pp. 141 ◽  
Author(s):  
Laura Lincoln
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Case Note ◽  
Customary Law ◽  
Modern Approach ◽  
Majority Judgment ◽  
The Common ◽  
Appeal Decision ◽  
Court Of Appeal

This article reads as an extended case note on the majority judgment of the 2011 Court of Appeal decision, Takamore v Clarke. This case highlighted the tension between the application of the common law relating to burial and the application of Māori custom, and presented the Court of Appeal with difficult questions regarding the recognition of Māori custom by the common law. The majority treated Māori custom as analogous to English local custom, calling for the custom to meet a list of requirements in order to be recognised as part of the New Zealand common law. The Court held that Tūhoe burial custom did not meet all of the requirements for recognition and so could not be recognised. Nevertheless, with the view that custom should still be taken into account, the Court proposed a "more modern" approach to customary law. This article begins by considering the appropriateness of the analogy drawn by the Court to English local custom, with reference to the historical judicial application of Māori custom in New Zealand. It then critically analyses the application of the authorities cited by the Court. Finally, this article explores the effect of the majority's "more modern" approach on the treatment of Māori custom in New Zealand law. The article contains a postscript pertaining to the Supreme Court's more recent decision.

Family Provision in New Zealand and Australia

2020 ◽  
pp. 450-476
Author(s):  
Nicola Peart ◽  
Prue Vines
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Customary Law ◽  
Indigenous Populations ◽  
Sex Partners ◽  
Same Sex ◽  
Her Family ◽  
Reproductive Techniques ◽  
The Common ◽  
Over Time

New Zealand and Australia are named in that order in the title because New Zealand was the first to develop the discretionary family provision jurisdiction, in 1900, that now applies in New Zealand, Australia, and much of the common law world. This allows courts to make awards to family members from the estate of the deceased. Originally benefitting only the surviving spouse and children, family provision has extended the rules of eligibility in line with changes in the meaning of ‘family’. So as well as spouses, claims can also, in many of the Australasian jurisdictions, be made by civil partners, cohabitants, and same-sex partners. Most jurisdictions have also broadened the class of eligible children to include grandchildren and stepchildren who were being maintained by the deceased as well as children born of new reproductive techniques. Both New Zealand and Australia have significant indigenous populations and their eligibility to claim family provision is modified to accord with their customary law. Over time, the courts have adopted a much broader view of a deceased’s ‘moral duty’ to his or her family, particularly in regard to claims by adult children. The size of awards has increased correspondingly. The chapter discusses this development, as well as the increasing relevance of Indigenous customary law and how the courts deal with disentitling conduct. In view of the greatly expanded scope of family provision in New Zealand and Australia, testamentary freedom may be only an illusion in these jurisdictions.

scholarly journals Language and Anglican Canon Law – Dabbling Briefly into Another Legal World

2011 ◽  
Vol 42 (2) ◽  
pp. 387
Author(s):  
Bill R Atkin
Keyword(s):  
New Zealand ◽  
Canon Law ◽  
Common Law ◽  
Customary Law ◽  
Anglican Church ◽  
Westminster Model ◽  
Legal Nature ◽  
The Common ◽  
The Church

Canon law is a body of rules that govern churches. It has a venerable history and has at times marched in step with the common law. It has a specialised vocabulary – even the word canon – much of which is derived from Greek. It also has sophisticated legislative systems, which vary from denomination to denomination and from place to place. In the case of the Anglican Church of New Zealand, the system is in part based on the Westminster model but has been modified when thought appropriate, with the result that the language used is partly familiar to the average lawyer but partly not. The exact legal nature of canon law is uncertain and may depend in part on whether the church is the established religion or not. In New Zealand where there is no establishment, a comparison could be made, inter alia, with customary law.

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.

Contract variation in the common law

2018 ◽  
Vol 47 (3) ◽  
pp. 196-207
Author(s):  
James C Fisher
Keyword(s):  
Common Law ◽  
Contract Law ◽  
The Common ◽  
Appeal Decision ◽  
English Law ◽  
The Law ◽  
The Uk ◽  
Business Exchange ◽  
Court Of Appeal

This note analyses the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd, a case that confirms the long uncertain ability of ‘No Oral Modification’ clauses to exclude informal variations in English law. This note argues that, while the Court was correct to reject the putative oral variation in question, the majority’s description of the law is unsatisfactory because of its detachment from wider contract law principle, and compares unfavourably with the alternative ratio by which Lord Briggs reached a concurring outcome. This note also comments on the Supreme Court’s (cursory) treatment of the portentous Court of Appeal decision in Williams v Roffey Bros, which has reformulated the law on contract variation across common law jurisdictions. The Court acknowledged, but declined to resolve, the tensions Roffey introduced in to the law on part payment of debts. While it is unfortunate that the opportunity to resolve these tensions was missed, this note endorses the Court’s ( obiter) rejection of the analysis by which the Court of Appeal below sought to extend Roffey to the part payment of debts.

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

The Enduring Legacy of ‘Reckless Disregard’

2005 ◽  
Vol 34 (4) ◽  
pp. 316-335 ◽  
Author(s):  
David McArdle
Keyword(s):  
British Columbia ◽  
Common Law ◽  
Standard Of Care ◽  
Personal Injury ◽  
Duty Of Care ◽  
Canadian Province ◽  
England And Wales ◽  
Appeal Decision ◽  
The Impact ◽  
Court Of Appeal

Personal injury at common law has spawned many cases where sports participants have inflicted injury either upon other participants or upon spectators/bystanders. This paper is not an exhaustive analysis of those ‘sports torts' cases but focuses instead upon the impact of Wooldridge v Sumner, a Court of Appeal decision that was legally sound but based upon highly significant errors of fact, and which has subsequently been advanced before the courts in two jurisdictions as authority for untenable propositions that concern both the standard of care and the duty of care owed by sports participants. While a consideration of the authorities prior to Wooldridge illustrates that there was never a basis at common law for the argument that either the standard or the duty of care differed from that pertaining in non-sporting contexts, the case has been appropriated by counsel in order to argue along those lines even though Wooldridge is not authority for either proposition. On some occasions those arguments have actually received the support of the courts of England and Wales and of the Canadian Province of British Columbia. Despite the existence in both jurisdictions of more recent authorities that ought to have heralded the demise of both concepts, they have proved remarkably tenacious.

scholarly journals Consent for Non-Therapeutic Male Circumcision on Religious Grounds

2009 ◽  
Vol 91 (2) ◽  
pp. 152-154 ◽  
Author(s):  
Richard Robinson ◽  
Erica Makin ◽  
Robert Wheeler
Keyword(s):  
Male Circumcision ◽  
Service Providers ◽  
Common Law ◽  
Case Note ◽  
Parental Consent ◽  
Retrospective Case ◽  
Legal Rules ◽  
The Common ◽  
Surgical Unit ◽  
Case Note Review

INTRODUCTION The aim of this study was to assess whether surgeons are conforming to guidance laid down by professional organisations and the courts in obtaining dual parental consent for non-therapeutic circumcision. PATIENTS AND METHODS A retrospective case-note review over a 12-month period (April 2005 to April 2006) of circumcisions in boys under the age of 16 years in a tertiary paediatric surgical unit was undertaken. RESULTS A total of 62 boys aged 1–14 years (median age, 4 years) underwent non-therapeutic circumcision. Written consent from both parents was obtained in only 4 cases (6.4%). In no case was written consent obtained from the patient or their views documented. In 58 cases, the written consent was provided by only one parent; the mother in 34 (55%), the father in 24 (45%). Of these 58 cases, in 25 (43%) both parents attended with the child on the day of surgery. CONCLUSIONS The data reveal a consistent non-conformity with recommended practice and the common law. It seems unlikely that the doctors involved are deliberate and inveterate law-breakers. The reason for this non-compliance may be ignorance of the rules, or due to the impracticality of their implementation. There is evidence that doctors are ignorant of the legal rules pertaining to their patients, and the results may reflect this ignorance. However, there are also practical difficulties in obtaining dual consent that may be partially responsible for the variance. Inevitably, investment will be required to overcome these difficulties. Cost may tempt service providers to abandon the provision, leaving parents to their own devices.

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

EQUITY IN COLONIAL WEST AFRICA: A PARADIGM OF JURIDICAL DISLOCATION

2006 ◽  
Vol 50 (2) ◽  
pp. 132-144 ◽  
Author(s):  
KWAME AKUFFO
Keyword(s):  
West Africa ◽  
Common Law ◽  
Legal Culture ◽  
Customary Law ◽  
Colonial Experience ◽  
British Colonial ◽  
The Common ◽  
English Law

In English law, equity is assigned relatively benign and comfortable roles, functioning as a canon of interpretation of the common law; as its versatile and flexible help-mate and mitigator of its formal strictness. More than this, equity claims a moral justice or conscience function that is deeply embedded in legal culture. As a consequence, equity has been extremely successful in lubricating the machinery of English law, providing it with a ready means of change to meet the needs of the dominant actors within society. This justice function is, however, contradicted by equity's history and its practical functioning, particularly, within the British colonial experience. This article examines the effect of the imposition of English equity on the prevailing customary law systems in colonial West Africa. The analysis challenges the fundamental claim of equity to a moral justice function within the colonial regime and argues that equity served the imperial objective as an instrument for fragmenting and dislocating indigenous property systems in order to facilitate the installation of capitalist property forms.

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