Canterbury Law Review

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Latest documents

A Long Time Coming: The Story of Ng'i Tahu's Treaty Settlement Negotiations with the Crown, by Martin Fisher
Contribution between Wrongdoers - Is the Damage Sufficiently Related?
Protecting Clients' Money - the Road to the Solvency and Experience Requirements of the Law Practitioners Act 1955
This article explores two largely unexplored aspects of the history of the New Zealand legal profession: the generally ignored but very substantial cohort of lawyers who caused financial losses to their clients and other creditors by bankruptcy or theft - or both - and the slow developments of rules designed to limit that loss-causing behaviour. It is argued that the legal profession was remarkably slow to take any effective action, with the vital step of requiring solicitors to operate trust accounts being forced upon them by Parliament in 1892. As the article demonstrates, the trust account regime was not adequately enforced for several decades, with the public continuing to suffer loss through defalcations and bankruptcies of solicitors. The article concludes with discussion of the suspect Law Society claims that inexperience was the key element in lawyers failing to protect their clients and creditors, a claim which was apparently used to justify imposing a “three years' experience” restriction on the right to commence practice on one's own account, as well as a long-overdue bar on bankrupt solicitors remaining in practice
Surrogacy During COVID-19 Times: The New Zealand Experience
On 28 February 2020 the first case of Covid-19 was reported in New Zealand. Within a month, the New Zealand borders were closed to non-citizens and residents. Other jurisdictions also took this step, making international travel difficult, if not impossible. For intended parents who had entered into international surrogacy arrangements, this presented a significant problem: they needed to travel overseas for the birth of their child and to bring the child home. As lockdowns and work-from-home orders became more common, intended parents found that they could not complete the required administrative tasks to bring their child back home to New Zealand. This article considers the unforeseen consequences of engaging in either international or domestic surrogacy during the global pandemic. Focussing on the legal issues arising from border closures and lockdowns, it discusses the results of empirical research carried out on family lawyers working on surrogacy cases during this time, as well as relevant Family Court decisions. As New Zealand is currently in the process of considering surrogacy law reform (following a Law Commission project and the drawing of a Private Member's Bill from the ballot), it is important to learn from the Covid-19 experience in order to future-proof our new law
James Hardie and the Development of Parent Company Liability: New Zealand as a Forum for Transnational Human Rights Litigation?
Recent jurisprudence in the United Kingdom and Canada has recognised the possible liability of parent companies for the tortious activity of their subsidiaries domiciled in foreign jurisdictions. “Parent company liability” is thus becoming a litigious avenue through which victims might seek effective legal redress for corporate human rights abuses. In 2019, the New Zealand Court of Appeal (NZCA) endorsed the emerging jurisprudence on parent company liability in the James Hardie litigation. This article critically discusses the decision of the NZCA against the wider global context of corporate impunity for human rights abuses. It examines the recent case law across Australia, the United Kingdom and Canada and the role of internal corporate structures and policies as evidence of a proximate relationship between the parent and subsidiary. It then critically discusses three key policy concerns with the endorsement of parent company liability in New Zealand. Ultimately, this article concludes that the NZCA decision does not represent a dramatic extension of tortious liability, but it does open the doors to a novel form of transnational human rights litigation on New Zealand shores. Overall, the recognition of parent company liability reconciles tort law with the field of ‘business and human rights', which has long seen the need to develop stronger mechanisms of legal accountability for corporations operating transnationally
Mind Over Matter: A Case for Reforming New Zealand's Accident Compensation Law Concerning Work-Related Psychological Injury
Workers in post-industrial societies increasingly occupy jobs with greater risks of psychological injury than physical harm. At the same time, a growing body of research is recognising the untenability of treating psychological injury with less importance than physical harm. In response, Australia's workers' compensation law has evolved to serve this changing landscape by affording comprehensive cover to victims of work-related psychological injury. Conversely, New Zealand's accident compensation law offers limited cover to such victims - largely remaining an ignorant anachronism of yesteryear. For victims of work-related psychological injury in New Zealand, the repercussions of this disparity are significant. Barred claimants are able to seek compensation under employment law or tort, but such avenues are fraught with obstacles. As a result, successful claims are seldom achieved. These victims then often have no choice but to resort to WINZ benefits - a welfare system evidenced to render victims less likely to return to work and more likely to face increased poverty and worsening health. Soliciting guidance from Australian legislation, this article argues for the reform of accident compensation law in New Zealand to more liberally compensate for workrelated psychological injury. Keywords: Employment relations, accident compensation law, work-related psychological injury, wellbeing
An Overview of the Trusts Act 2019 - Revolutionary Changes or Much of the Same?
The Trusts Act 2019 (the Act) is now fully in force. The Act repeals and replaces the former Trustee Act 1956. The Act has modernised the law of trusts and made the law more accessible. It restates many common law principles as well as modifying some of the pre- Act common law. Few provisions depart entirely from the former Trustee Act 1956 and the common law applicable prior to the Act. These changes combined make for interesting discussion, particularly to what extent the common law continues to be relevant, and whether the new provisions are revolutionary or are better described as improvements to the pre-Act position. The Paper finds that overall, very little has changed substantively under the Act. Where the Act restates the common law, the common law may continue to provide context and interpretational assistance. Where the Act provision modifies the common law, the common law will remain relevant to the extent it is consistent with the provision. Those provisions which entirely depart from pre-Act principles are few. There is little in the Act that will require major adjustments to trust deeds or the way trusts are administered
An Analysis of the United States' Stance on BEPS: Pillar One
The current reformation of the traditional nexus and profit allocation tax principles by the Organisation for Economic Co-operation and Development comes as a welcome relief for the majority of global economies, who lose billions worth of tax revenue through their inapplicability to the modern, digital economy. However, recent actions by the United States threaten to stall any meaningful progress on developments and act to highlight its nationalistic stance on an issue which threatens multinationals headquartered in its jurisdiction and its own domestic economy. This article considers the rationale for such a stance, identifying the multitude of reasons why the United States may wish to protect its own interests in these circumstances. Ultimately, the article concludes that for the purpose of facilitating global agreement on an issue which requires consensus, the United States ought to engage more proactively in reformation discussions and be willing to sacrifice its own self-interest to provide an outcome that will benefit smaller, developing nations
Editorial: Voices of the Pacific in a Globalised World
Securing the Pacific in a Globalised World: New and Emerging Developments in International Law
The United Nations Treaty on the Prohibition of Nuclear Weapons and two other proposed international laws currently under development through United Nations processes – to regulate the activities of corporations and business enterprises, and to govern the conservation and sustainable use of marine biological biodiversity in areas beyond national jurisdiction – hold enormous significance for Pacific states and people in today's globalised world. All three developments have seen strong involvement by civil society organisations, two of them emanating from civil society advocacy. These developments provide important avenues to potentially redress historical wrongs and protect against human rights abuses and marine resource pillaging. They are not sufficient, however, to protect the Pacific Ocean, which constitutes more than 90 per cent of the world inhabited by Pacific people. That may require legislating personhood rights for our Ocean