Canterbury Law Review

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Latest documents

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
A Long Time Coming: The Story of Ng'i Tahu's Treaty Settlement Negotiations with the Crown, by Martin Fisher
Land Tenure in Solomon Islands: Past, Present and Future
Since the arrival of foreigners in Solomon Islands the most perplexing question has been how to balance land as a spiritual and social ideal with land as an economic base. Law reformers have struggled with the competing aims of retaining land under customary tenure, whilst offering sufficient certainty for it to be used for purposes other than subsistence gardening and small locally owned projects. The other, related, question has been whether suitable arrangements can be made for customary land to be used as security for investment. This article traces the attempts that have been made to convert customary land into a form of tenure that facilitates economic development. It examines government policies and legislation that have attempted to convert land from a social framework to a form of property that can be owned and discusses the impact of these arrangements on village communities. Whilst the focus is on Solomon Islands, reference is also made to initiatives in neighbouring Pacific Island countries where similar issues have arisen. The article concludes that, to date, Solomon Islands has failed to find an appropriate system that responds to the needs of its population
Koe Tu'i Ko E Pule, The King is Sovereign: An Analysis of the 2017 Dissolution of the Tongan Parliament
The Kingdom of Tonga is the only country in the Pacific never to have been colonised. Its constitutional development thus provides a unique model of customary Pacific governance in the modern world context. On 25 August 2017, the King of Tonga dissolved Parliament. The impetus was said to be due to issues with Prime Minister Akilisi Pohiva. Elections held three months later resulted in the re-election of Pohiva as Prime Minister. This article considers the constitutional relationship between the King and the Tongan people in two different spheres. Firstly, it will consider the dissolution of Parliament through a customary lens, using the Kavei Koula 'e Fa, the four golden pillars of Tongan society, as a framework. It will specifically look at faka'apa'apa (respect) and its application between King and people, considering its utility as a mechanism for accountability. Secondly, this article considers the decision with respect to the main accountability mechanism within the common law, that is, judicial review. This article will evaluate the legal strength of a judicial review proceeding brought against the decision of the King, exploring the growing indigenous and overseas case law and jurisprudence on the constraining of prerogative powers of a Sovereign. This article overall considers the constitutional relationship between the King and his people, in the intersection of customary law and Western notions of power