Conversations with the Common Law: Exposure, Privacy and Societal Change

This is an edited version of an inaugural professorial lecture delivered at the Faculty of Law, Te Herenga Waka – Victoria University of Wellington on 16 March 2021 (the promotion to professor having taken place on 1 January 2019). In the address, Professor Moreham asked what the development of new torts of privacy over the last two decades has told us about the way in which common law both shapes and responds to changing societal values. Reflecting on her own experience ''growing up with'' the privacy torts, Professor Moreham considered the role of the legal academic in common law development and showed how conversations between the common law and the society it serves enrich both parties to it.

Commercial Common Sense in Contract Interpretation: Observations on the Court of Appeal in Technix v Fitzroy and The Malthouse v Rangatira

The contemporary principles of contract interpretation require courts to have regard to a number of factors to determine the meaning of a contract, including the plain meaning of the express contractual language, the contract's context, and commercial common sense. These principles superseded the narrower plain meaning rule, which directed courts to interpret contracts in a manner largely consistent with the plain and ordinary meaning of their express words. Since their manifestation some 20 years ago, these principles have undergone change, development and elaboration to the extent that some commentators now claim the approach to contract interpretation more closely resembles the former plain meaning rule, with courts giving "primacy" to the words of the contract in order to deliver "commercial certainty". This article argues that while courts must give primacy to the express contractual language, that does not mean courts should maintain an unwavering loyalty to the plain meaning of those words, even if their meaning is clear. Courts that adopt this approach, referred to by some as the "conservative approach", risk obscuring the true meaning of a contract that can only be obtained through the careful balancing of a contract's internal and external factors, including commercial common sense. This article demonstrates the problem with the "conservative approach" through the analysis of two Court of Appeal decisions, and argues that courts should not overstate the circumstances in which departure from the plain meaning of a contract should occur.

Pushing the Boundaries: A Tentative Taxonomy of Money in New Zealand Private Law

This article seeks to define the boundaries of money in the context of proprietary taxonomy in New Zealand. It suggests that the traditional legal concept of money exclusively based on state issued (fiat) currency is dated, as does not accommodate the near-universal use of bank money in commercial transactions, nor the recent technological changes introduced by virtual currencies. As long as something functions as a means of payment and the holder has the right to exchange it for legal tender, the divide between mutually agreed payment obligations into those made on the base of fiat currencies and those not, becomes artificial. In providing responses to similar commercial arrangements and parties' legitimate expectations, not only coins and banknotes, but also balances held by customers in banking institutions, foreign money, and digital currencies, should qualify as money for private law purposes.

Book Review: A Long Time Coming: The story of Ngāi Tahu's Treaty Settlement Negotiations with the Crown

Martin Fisher A Long Time Coming: The story of Ngāi Tahu's Treaty Settlement Negotiations with the Crown (Canterbury University Press, 2020).

The Cook Islands, Niue and Tokelau as Parts of the Realm of New Zealand

The focus of This Realm of New Zealand by Alison Quentin-Baxter and Janet McLean was on the constitutional monarchy and its relationship with the laws of mainland New Zealand. This article complements This Realm of New Zealand by focusing on the constitutional monarchy and its relationship with other countries of the Realm of New Zealand – the Cook Islands, Niue and Tokelau.

Obligations in Contract, Tort and Equity: Reliance, Responsibility, and the Moral Dimension: Essay in honour of Sir John McGrath

I publish this essay to honour the memory of Sir John McGrath. I sat with Sir John for a number of years, first in the Court of Appeal and then in the Supreme Court. Professional respect soon turned into friendship. While we did not always agree, I always respected his views. They were carefully considered and fully researched. John gave detailed consideration to the opinions of others but was very much his own man when it came to his ultimate conclusion. His innate caution in departing from the well-trodden path was a valuable contribution in a final appellate court. Stability is an important feature of any legal system. And John provided that quality, but not at the expense of innovation when that was clearly desirable and could be achieved in a principled way. John's passing, so soon after his retirement, was a great loss, not only to his wife and family, but also to his many friends and colleagues, both in the law and beyond.

One Boat, Two Captains: Implications of the 2020 Samoan Land and Titles Court Reforms for Customary Law and Human Rights

Samoa's 2020 Land and Titles Court reforms, which contributed to the Human Rights Protection Party losing support at the April 2021 elections after almost 40 years of government, have recentred attention on the tensions of legal pluralism in the South Pacific. Although Samoa maintains a system of English common law, 81 per cent of Samoan land falls under the traditional matai titles system, giving a central role to the customary Land and Titles Court (LTC). In December 2020, the Samoan parliament passed three Acts – the Constitution Amendment Act 2020, the Land and Titles Act 2020 and the Judicature Act 2020 – establishing the LTC in a parallel court hierarchy with equivalent status to the Samoan Supreme Court and Court of Appeal. This proposal has prompted debate between those favouring incorporation and promotion of Samoan custom over Western legal norms, and others who argue the amendments undermine human rights protections and the rule of law. This article evaluates the effects of these changes on the role and administration of custom in Samoa, contextualising them within broader socio-legal debates around customary legal systems. It first analyses the effect of the three Acts with regard to the bifurcation of the court system, procedural reforms in the LTC hierarchy and the introduction of a judicial guidance clause. This leads into a critical evaluation of these changes, highlighting impacts upon judicial coherence; constitutional human rights; consistency between customary and common law procedures; and resourcing constraints. The article concludes by providing broad options for future reform. It does not focus on issues which have received attention elsewhere, such as the amendments' potential impacts on judicial independence.

Pale Shelter, Cold Hands: Making Criminal Justice Better

In memory of Mona. Inaugural Lecture.

How Many 'Clicks' Does it Take? Finding Price Information on New Zealand Lawyers' Websites

This article examines price transparency in New Zealand's civil legal services market and compares the civil legal services market characteristics to those of other jurisdictions. The current law does not incentivise providers within the legal services market to communicate price information to consumers searching for a provider. The researcher utilised a web-sweep method to assess how New Zealand law firms that provide dispute resolution services and employment advocates share information through their websites. The web-sweep covered the websites of 96 New Zealand law firms and 30 New Zealand employment advocates. The author assessed the ease with which prospective consumers could navigate and understand price-related information. The results demonstrated that in a majority of instances, price information is unclear and uncertain. It is therefore not comparable between providers. Consumers in New Zealand face a high search cost when looking for prices and deciding on a legal service provider. They are unable to make a meaningful price comparison between providers of dispute resolution services before engaging them. Stronger regulation of providers (lawyers and employment advocates) to require the display of pricing information would lower search costs for consumers and increase competition.

Medical Device Regulation and the Proposed Therapeutic Products Bill: Devising a New Regime

Despite medical devices being integral to modern healthcare, New Zealand's regulation of them is decidedly limited, with repeated attempts at reform having been unsuccessful. With the Government now indicating that new therapeutic products legislation may be introduced before the end of the year, the article considers the case for change, including to promote patient safety, before analysing the draft Therapeutic Products Bill previously proposed by the Ministry of Health, and on which any new legislation is expected to be based. It concludes that, while the proposed Bill is a step in the right direction, introducing regulatory oversight where there is currently next to none, there is still significant work to be done. In particular, it identifies a need to clarify whether the regime is indeed to be principles-based and identifies further principles which might be considered for inclusion. It further proposes regulation of cosmetic products which operate similarly to medical devices to promote safety objectives, while finding a need for further analysis around the extent to which New Zealand approval processes should rely on overseas regulators. Finally, it argues that, in an area with such major repercussions for people's health, difficult decisions around how to develop a framework which balances safety with speed to market should not be left almost entirely to an as yet unknown regulator but, rather, more guidance from Parliament is needed.