law week 1989 -...

EDITORIAL

THE NEW ZEALAND

JOLJRNAL 21 MARCH 1989

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Law Week 1989 Wellington, Wanganui and Canterbury are District Law prompt leading local citizens in public life in the regions Societies that have held very successful Law Weeks in the to give it their open support and encouragement. past few years - see [1987] NZLJ 105 and [1988] Mr Richard Cathie of Kensington Swan is Convenor NZLJ 355. This year, from l-6 May, it is planned to hold of the National Organizing Committee with Annette Law Week on a national basis. Black, Kathy Stringfellow, Colleen Singleton, Mandy

The organisation of the legal profession in New McDonald, Angus McLeod and Elizabeth Brown (Co- Zealand is very much devolved and regionalised, since ordinator). A group of national sponsors has been long before these became political catchwords, and Law obtained to help with some of the substantial costs Week 1989 will follow that pattern. There is a National involved. Committee which will do a number of things at national The National Organizing Committee is providing such level and encourage and assist District Societies in their basic needs as speakers, special stationery, stickers, kits local activities. Essentially the success or otherwise of Law and national advertising in such publications as the Week will depend on the commitment of the District Sunday papers, the Listener and so on. This national Societies, and the enthusiasm and generosity of members advertising is being funded by Butterworths as a national of the profession at the local level. sponsor. In addition a press kit of 12 articles has been

Sydney has had a very successful Law Week for some commissioned and will be made available to Districts. The time, to the extent that it is now organised and funded major metropolitan dailies have agreed to do special as a separate activity on a continuing basis. The poster supplements. Local radio stations have agreed to become design for the New Zealand Law Week has been involved. There is also a law-in-schools kit that has been generously provided by Sydney. Some 30,ooO copies of the provided. The Police and the Justice Departments were poster will be distributed throughout the country. The approached and have agreed to co-operate in various ways. funding for this is being provided by Harcourts Real This will mainly be done at the local level. Estate Agency in association with the National Bank. Finally of course, it needs to be remembered that Law

The rationale for holding a Law Week is twofold. It Week should be for the benefit of legal practitioners. The is of course a public relations exercise in part, in that it Week from 1 to 6 May is an occasion to take some delight reflects the new attitude of the legal profession to selling in our own work, and to show that those engaged in it its services to the public - to the extent of advertising have their human side. Thus it is pleasing to learn that individual firms, and even the expertise of individual Auckland is proposing to have a wigs-and-gowns road race practitioners within firms. in Queen Street, that Nelson is hoping to have a

So Law Week can be seen as a public relations exercise. wheelbarrow race and that others are having such events But it is and must be more than that. It is, after all, an as golf tournaments, public debates, cocktail parties, activity undertaken by one of the major organised poetry readings and revues. It is also to be hoped that professions. It must therefore be an educational activity Judges at all levels will be able to be involved in some for the general public. This is not just to make people appropriate ways - perhaps not in road races in full aware of the services the profession provides, but more bottom wigs. The imagination starts to stir! importantly, much more importantly, to explain and If Law Week is the success it should be, it will emphasise the significance of the legal system, indeed the encourage in citizens an awareness and an understanding central importance of the rule of law in society. In other of the law. It should help people know both their rights words the true meaning of what it is implied in the saying and their duties under the law. It should promote in the about living in a society that is governed by law and not community a greater knowledge of legal institutions and by men. of the legal structure within which we live our lives. It

A National Advisory Board has been established. The may help encourage a greater degree of public Patron for Law Week is Sir David Beattie, the former participation in the legal process and in areas of law Governor-General. The members of the Advisory Board reform. It should foster a wider and deeper respect for are Rt Hon Geoffrey Palmer, Sir Ronald Davison, Mr the law so as to enhance, within society at large, the Peter Tmpski and Judge Patrick Mahony. The willingness common understanding of the significance for all of us of these people to be associated with Law Week marks in living together under the rule of law. the event as an important national occasion, and should P J Downey

NEW ZEALAND LAW JOURNAL - MARCH 1989 77

CASE AND COMMENT

Unconscionable bargain from a matrimonial property plaintiffs house by way of a settlement and the plaintiff agreeing mortgagee’s sale. The plaintiff

Elia v Commercial & Mortgagee to mortgage his house to provide claimed relief under a number of Nominees Ltd, [1988] BCL 1665. security for the borrowings. causes of action, but three in

A conditional contract for the Particular should be noted. Whilst the doctrine of purchase of the business was then unconscionability has existed for signed. After the evaluation of

1 Unconscionability many years, the wide-ranging scope several financing proposals, P The plaintiff sought to have all of its application in the banking law considered the venture viable

area, and its ability to modify the (although Gault J did not see how transactions between himself and

balance of power in the banker- such an opinion could properly have the first and second defendants set

customer relationship, were recently been formed) and, satisfied that the aside on the basis that they were

recognised as a result of the High purchase could be funded on unconscionable. Gault J, after

Court of Australia’s decision in settlement, declared the contract taking guidance from the Court of

Commercial Bank of Austmiia Ltd unconditional. The purchase was to Appeal’s decision in Nichols v Jessup [1986] 1 NZLR 226 and the v Amadio (1983) 46 ALR 402. be completed through a shelf-

Australian bankers tended to receive company with the plaintiff and D G,Connor Privy Council’s decision in v

that decision with surprise and as directors and shareholders. Hart [1985]

disdain. Elia looks set to provoke a Financing was to be by way of first ’ NZLR 159V noted’ similar response from New Zealand mortgage over the plaintiffs house bankers. in favour of the first defendant, Each case is to be decided on its

second mortgage over the house, own facts. Unconscionability The facts and collateral first debenture over may be found where there is no The plaintiff, formerly from the the company’s assets and gross disparity of consideration. Cook Islands, formed a de facto undertaking in favour of the second However, where there is less relationship with a woman, D. As defendant, and a vendor second imbalance in bargaining strength, Gault J noted: “[tlhe plaintiffs debenture, with the plaintiff and D or in benefits flowing from the troubles came with [D]” when she guaranteeing the company’s contracts, it is unlikely that there decided she wanted to buy a rest- borrowings. The loa from the will be a finding of home business and persuaded the second defendant was to be of a unconscionable bargain without

plaintiff to become involved in the temporary nature and was granted evidence of lack of propriety, venture. They located a suitable only on the basis that permanent over-reaching or unfairness on business and, because fmance would finance would be forthcoming in the part of the stronger party. be required, were referred by the due course. The debenture real-estate sales person to S, a contained a covenant requiring D, TWO essential requirements underpin director of the first defendant, a on receipt of the matrimonial this doctrine. First, the existence of mortgage nominee company, and property settlement funds, to apply a disability which places one party the second defendant, a finance them in reduction of the loan. at a serious disadvantage vis-a-vis company and finance broker. S, in All necessary financial the other. Gault J examined the turn, referred them for legal advice documentation was signed and bargaining strengths of the parties. to the third defendant, P, a solicitor, settlement completed. The The plaintiff, who in evidence said who was a director of the first relationship between the plaintiff that he had limited reading skills defendant who acted as a solicitor and D soon deteriorated. There were and almost no ability to write in for the second defendant. S also defaults under the various loan English, was described by his referred them to a chartered agreements and D was adjudicated counsel as “simple, of no high accountant who prepared a bankrupt on her own petition. The ambition, having limited perception financial budget in respect of the plaintiff now faced indebtedness and understanding and being naive venture An integral part of the under the agreements of nearly in business”. In contrast S was financing arrangements involved D $250,000. The first defendant gave “experienced in the area of finance, providing a substantial sum of cash notice of its intention to sell the specialising in arranging finance for

78 NEW ZEALAND LAW JOURNAL - MARCH 1989

CZASE AND CnMMFNT

business ventures for individual and business clients”. Secondly, there is the requirement of the unconscientious exploitation of the disability. The plaintiff claimed that the transactions were never properly explained to him and that he did not understand the true meaning of the obligations and risks he was assuming. He further claimed his role was that of a “passive observer”, although he accepted that he did not inform S or P that he did not want to be involved in the venture and on only one occasion told P he did not understand the effect of some documents he was signing. Whilst S gave evidence that he had explained the transactions to the plaintiff, Gault J was “less than comfortable” with that evidence His Honour was “. . . unable to find that either [S] or [P] directly investigated, in other than a superficial way, whether the plaintiff fully understood their explanations of the transactions”, concluding:

In those circumstances I find that the first and second defendants took advantage of the plaintiff and, in particular, of his inability separately to make an informed judgment as to the transactions he became committed to . . . . In my view, having seen [the plaintiffl, I think it would have been readily apparent that he was under significant disadvantages and I am satisfied that if [S] and [p] did not actually know or seek to ascertain his level of comprehension of the transaction, they ought to have done so.

Accordingly it was held the circumstances were such that it would be inequitable for the transactions as they related to the rest-home to be enforced against the plaintiff, and they were set aside. Gault J noted that, had it been necessary to make a ruling under the Credit Contracts Act 1981, he would have reached a similar result by holding that the conduct of the first and second defendants was “oppressive” within the meaning of the Act, and would have exercised his power under s 14(l)(d) to extinguish the plaintiffs obligations under the transactions as they related to the rest-home.

2 Disclosure The plaintiff alleged that the second defendant had failed to comply with the “initial disclosure” provisions of the Credit Contracts Act in that the “total cost of credit” had been incomctly calculated. As the second defendant had, as a prerequisite to granting the loan, required that there be a permanent back-up facility, certain fees were charged to the plaintiff and D in respect of that facility: a “brokerage” fee by the second defendant and a “finder’s” fee by the grantor of the facility. Only the “brokerage” fee had been included in the “total cost of credit” disclosure. Gault J held that as the facility was part of the arrangement constituting the credit contract with the second defendant both fees had to be included, for “[t]o exclude them would leave open the way for substantial preliminary payments to be excluded from the total cost of credit, so depriving that stated cost of realism.” Thus, as the “finder’s” fee had not been included, the disclosure requirements of the Act had not been complied with, rendering the security documents unenforceable until disclosure was properly made. Given that the documents had already been set aside under the doctrine of unconscionability, this finding had no real significance on the particular facts, but it does serve as an important reminder to take particular care when calculating “total cost of credit” disclosures where ancillary fees are involved.

Gault J briefly considered the situation where a lender is faced with doubt as to the correct calculation of a “total cost of credit” item:

For my part I do not think that in a case of genuine doubt it would be inappropriate to make disclosure giving alternative figures for the total cost of credit and the finance rate, so long as it is clear from the disclosure precisely what information is communicated.

Such doubts would only arise infrequently, but where lenders choose to provide alternative figures, the overriding concern would be to ensure that the disclosure was clear, unambiguous and above all understandable to the addressee.

His Honour also took the

opportunity to proffer some advice about disclosure by post. Under s 20(l) of the Credit Contracts Act disclosure can be made by sending the documents by post. In Elia disclosure was purported to be made when a copy of the debenture was mailed to the plaintiff with a letter stating: “In compliance with the Credit Contracts Act we enclose herewith a copy of the above debenture for your safekeeping.” Although holding that the debenture did not contain the required disclosure information Gault J made the following obiter comments:

I mention in passing that even if disclosure particulars had been included, it would seem unwise to provide them under cover of a letter worded, as in this case, so as to convey an invitation to the addressee simply to put the document away.

Practitioners who use disclosure letters framed in this way may well think it wise to modify them to take account of His Honour’s comments; words such as “for your safekeeping” are, in any event, surplusage.

3 Actions against solicitor Two causes of action were advanced against P: breach of the duty to provide professional skill and care arising out of his contractual relationship with the plaintiff, and breach of fiduciary duties owed by P as solicitor to the plaintiff. In determining the nature and extent of the duties owed by P to the plaintiff, Gault J correctly looked to the particular relationship that prevailed at the time of the transactions (see the writer’s comment “Advice-giving: Towards a unified approach” - Day v Mead in [1988] NZLJ 103) noting that P had played an important role in “advising and representing his clients in all aspects of the purchase of the rest-home business, including the legal .and financial structures required for its operation by them”. His Honour concluded that in the circumstances the plaintiff, whose house was to be encumbered, had a separate and identifiable interest to be protected which required separate duties from P:

That he may have appeared to be in a stable de facto relationship does not affect that. I consider


CASE AND COMMENT

the same principle applies where interests between [the plaintiffl and divided and their incomes kept married couples are involved. A [D].” Gault J granted the plaintiff separate, though essential household solicitor must be alert to all relief against P by way of an expenses were divided. The wife had, situations in which there is a indemnity against the plaintiffs until recently, done most of the separate interest which personal liability in respect of any cooking because she refused to allow potentially may be prejudiced or losses he incurred in connection with the husband in the kitchen. More over-ridden. the purchase and financing of the recently she had refused to cook

business in respect of which P acted either for him or their youngest son, Of course there is nothing new in as his solicitor. who was still in the home. The major this formulation (cf Tompkins J’s In the rapidly evolving area of expenses connected with the spouses’ comments in Jenkins v NZIFinance lender liability Hia is a significant jointly owned car were undertaken by Ltd, noted at [1988] BCL 1578) but decision. It not only shows the the husband, who had the major use it does contain an important interplay between traditional causes of it. The wife paid ten dollars a warning for practitioners. of action like unconscionability and fortnight for use of it.

statute law such as the Credit On these facts, the Family Court Duty of skill and care Contracts Act, but also, importantly, Judge held that it would be hard to P as a solicitor, pursuant to the the willingness of Courts to grant conceive a clearer case of parties’ contract or retainer, was relief to borrowers and guarantors living apart under the same roof. He contractually obliged to be skilful adversely affected by lender also said there was, from about and careful when acting for the misconduct. August 1979, a complete marital plaintiff. Gault J held that P had breakdown, due to the wife’s positive breached that duty in two ways. Stuart D Walker and aggressive repudiation of the First, in failing to make inquiries University of Otago marriage as a whole, and that the before the contract for purchase was parties remained under one roof for made unconditional, as to the these two reasons, viz, their amount and likely availability of D’S “J.=ding WaEate lives - dependent sons (aged 15, 12 and 9 in cash contribution from her really is not quite the same 1979, and now 23,20 and 17) needed matrimonial property settlement, as living apart.” a home and neither spouse would and not ensuring that the plaintiff move out. The lower Court concluded had the opportunity of receiving In a recent case, Stoneham v that, from August 1979, the parties independent legal advice as to the Stoneham (High COW, Wellington, remained in the home as strangers to Commitments he was assuming and 14 September 1988; NO M 403/87), each other, sharing it as strangers and the risks involved. Secondly, in concerned with a matrimonial remaining on extremely bad terms. failing to determine whether the property issue under the Matrimonial The wife appealed. It was business would be viable if D’S cash Property Act 1976 (and not with contended for her that (a) the parties contribution was delayed or did not d’ rssolution under the Family never lived apart at all, and (b) if they become available, and again in not Proceedings Act 1980), Davison CJ did, then it was from a much later ensuring the plaintiff had the had the foflohg problem before him date than August 1979. It was put opportunity of receiving on appeal from the Family Court. that, though sexual relations had independent legal advice as to his The latter Court had held that the ceased then, the breakdown was not position in such circumstances. spouses had begun to live apart at the fundamental. While there was ample

end of August 1979 at the latest. As evidence that each of the spouses had Fiduciary duties will be seen, the case was one where considered the marriage as over from Gault J, noting Thorp J’s analysis in they had continued to live in the same about 1979-1980, they had remained Mid-Northern Fertilizers Ltd v residence. under the one roof to preserve the Connell, Lamb, Gerard & Co The Family Court Judge had family unit. The really important (unreported, High Court, Auckland, found very few indicia of the state of challenge, however, that was made by 18 September 1986 [A lSl/SS]) found living together, and an overwhelming counsel for the wife was this: How that in the area of conflict of interests number of indicia that the spouses could the household have functioned, between clients “. . . [P] did not make were living apart. He observed that and how could the parties have to the plaintiff explicit disclosure of there was no companionship; no remained together, acting like the risks involved in the transaction communication or confiding, the strangers, for some eight years? (As . . . [t]he implications of the failure parties having hardly spoken to each will very shortly become apparent, by [D] to obtain and make available other since 1980, no “socialising” the spouses spent eight years in a to the business [her cash together; on the few occasions when home they had bought after the contribution], on which the they were together at family social marriage was allegedly over, right assessment of the viability of the events, they were functions which he down to the date of the hearing in the business was based, were not fully thought they would have attended Family Court in 2987.) disclosed and certainly not in such a even if they had been divorced; there The Chief Justice took the view manner as to be fully understood by were no common or shared interests; that the fact that both spouses the plaintiff having regard to his holidays were planned and taken continued to give the children a home limited ability to comprehend”. P had separately and not together; the indicated rather a conscious decision breached his fiduciary duty to the household chores were divided as if to keep the home going for the plaintiff: “At no time was any the spouses were strangers sharing children’s benefit no matter that their consideration given either by [S] or accommodation; their assets (apart own personal relationships had ended [P] to any possible conflict of from their home and chattels) were and were strained. In his opinion, this


CASE AND COMMENT

was particularly evidenced by the fact 1976 Act. The marriage had suffered Comment. that, over a year after they were in 1979 but the parties had decided It can fairly be said that, objectively claiming to be living separate and to keep it going at a reduced level speaking, the evidence here could apart, they had (as briefly indicated of happiness and satisfaction. not have satisfied the Court that the above) bought the home they had Hence it was not a case of their parties were living apart. There was inhabited until recently - a matter living apart at all. The points that no satisfactory explanation why not mentioned in the lower Court. neither spouse would move out of these spouses continued living under This, in the Chief Justice’s eyes, might the home and that their dependent the one roof when one or other be evidence of a decision to stay sons needed a home were not might have left. Nor was the other together as a family unit for the sufficiently compelling reasons or essential element present, viz, that children’s benefit. The Chief Justice good excuses for failing to abandon there should be evidence of a change also noted the evidence of the social the home or for not moving out. in the parties’ relationship, gradual occasions spent together as a family Hence it was not possible to hold or sudden, which constituted a as evidenced by photographs of that the spouses were living apart living apart. Indeed, one swift Mother’s Day celebrations in 1986 under the same roof. Davison CJ reading of Mounter v Mounter and of birthdays in 1986 and 1987. re-emphasising: [1972] 1 All ER 289 would have The Family Court Judge had, as shown that any other conclusion mentioned above, referred to these, Had either wished to leave the would have been impossible on the but as functions the spouses would house, I am not persuaded that facts as found by the Chief Justice. have attended together even if one or other could not have done divorced. Further, it appeared that so over the period of eight years. P R H Webb overseas friends had been entertained Rather these two reasons, far University of Auckland by the spouses as house-guests over from excusing the parties from the Christmas 1986-1987 holidays.

Counsel for the wife further physically living apart, in my view provide the very reason why

argued that the lower Court had not they in fact stayed in the house, Illegal searches and the applied the correct legal test. The namely, because both wished to exclusion of evidence - Civil Chief Justice did not accept this, remain there to provide a home liberties ~cog~sed but not holding that it had made no error for their family and they both protected and had properly applied Sullivan continued there on that basis up v Sullivan [1958] NZLR 912 (CA). until 1987. Once that decision R v Sutton, Grace & Anor 119891

Counsel for the wife also referred was made they retained the most BCL 148 to the way in which the parties important single aspect of the showed themselves to the public matrimonial relationship and The New Zealand Court of Appeal view, and stressed that the home was although the quality of that has of recent times adopted a more the cornerstone of the marital relationship doubt liberal approach to exclusion of relationship and, until such time as deteriorated after zgust 1979, I illegally obtained evidence than that it was abandoned, the most am not satisfied that it came to followed, for example, in England, or important aspect of it had an end. indeed in pre-Charter Canada. In a remained. He pointed to the series of decisions culminating in purchase of the new home in 1980 His Honour added that there must Coombs [1985] 1 NZLR 318, the and the long time the parties stayed clearly have been some agreement Court held that there was in New in it in order to provide a family to keep the home going as a family Zealand a discretion to exclude home. unit for the benefit of the family evidence which was nevertheless

The Chief Justice saw the case as with the necessary ancillary probative. The discretion was part of revolving round the proper arrangements for sharing duties, Courts’ inherent jurisdiction and was inferences and conclusions to be expenses etc. He further noted that couched in terms of “fairness to the drawn from the evidence as a whole there was still the joint occupation accused”. Thus, in Coombs the Court and as depending on a balancing of the home and its facilities; that observed (p 321) exercise of the various competing there were not separate residences factors. He concluded that he was although there were separate . . . evidence obtained by illegal unable to say he was satisfied that bedrooms and that there were joint searches and the like is admissible there was an overt separation or that meals but a division of services and subject only to a discretion, based there were two households under the duties. Most important, there was on the jurisdiction to prevent an one roof. The evidence established participation in the care, support abuse of process, to rule it out in no more than that the spouses and upbringing of the children by particular instances on the ground continued to live together in one both spouses. of unfairness to the accused. shared household, albeit in strained The net practical effect of the circumstances. decision was that the parties were At the time of that decision, the

The cessation of sexual relations held to have begun to live separate writer argued that the formulation of did not, per se, mean necessarily and apart as from 1 May 1987, the “fairness to the accused” contained that the parties lived separate and date of the hearing in the Family potential pitfalls, in that it focused on apart, nor did their statements that Court. In view of that finding, it the merits of the particular accused they did so. The whole pattern of was necessary to recalculate the and so did not accurately reflect the their living fell short of amounting figures relating to each of the underlying rationale of the discretion. to living apart as required by the parties’ superannuation rights. (“The Exclusion of Improperly


CASE AND COMMENT

Obtained Evidence” (1985) none of the “evidence” on which the to the test used by the Court. It is 11 NZULR 334.) Indeed, the inherent police were operating related to the not surprising that no unfairness to ambiguity in a “fairness” test can be particular occasion. There was no the accused was found; it will very found in the extract from Coo&s new evidence about Grace, nor was seldom be the case that admitting (sup@. In that formulation the there any reason to believe that on this illegally obtained evidence will be Court refers to the discretion being occasion rather than on any other unfair to an accused. It may be sourced in the abuse of process drugs would be found in the car. This galling to accused persons that the jurisdiction. Within the criminal law decision, when added to the enforcement arm of the state, which the primary focus of that jurisdiction recognition of a measurable is levelling charges of illegal activity is control. In other words, it is used difference between reasonable against them, can act illegally and to ensure that those who enforce the suspicion and reasonable belief, is profit by it, but it will seldom be law obey the law, the issue being the potentially very significant. From a unfair. wider one of promoting society’s civil liberties viewpoint, it is The fallacy of a test based on overall agencies. On the other hand, encouraging to see an affirmation by “unfairness” was elucidated several a working test of “fairness to the the Court that powers to search years ago by the Australian High accused” suggests quite a different without warrant are not an open Court in Bunning v Cross: rationale, the focus there being to invitation to stop and check at any ensure a fair trial. The recent Court time people known, or suspected, to Fair or unfair is largely of Appeal decision of R v Sutton, be associated with criminal activity. meaningless when considering Grace & Anor (Richardson, Bisson Parliament has set out the only fingerprint evidence obtained by and Barker JJ, [1989] BCL 148) chcumstances in which the civil rights force or a trick or even the represents the realisation of these of citizens may be infringed, and it is evidence of possession of, say, pitfalls. important that Courts ensure that explosives or weapons obtained

The accused were stopped in their those limits are complied with. by any unlawful search of body car by a Constable Leifi. In Sadly, though, any or baggage, aided by electronic accordance with instructions radioed encouragement one might take from scanners. There is no initial to him, he had been following the car for some time and then, pursuant to

this finding is removed by the next presumption that the State, by its stage of the decision which in effect law enforcement agencies, will in

further directives, he Stopped it. the use of such measures of crime Constable Leifi asked the occupants

does give a “carte blanche” to such illegal practices. For once an detection observe some given

whether he might search it. They illegality is established, there still code of good sportsmanship or demurred; the officer then advised remains the vital question of chivalry. It is not fair play that them he would search it anyWaY and is called in question in such cases proceeded to carry out a warrantless

remedy. What should a Court do about an illegal search which has but rather society’s right to insist

sead under the powers granted by produced probative evidence? that those who enforce the law S W) Of the Misuse Of Drugs Act Applying the "fairness to the themselves respect it, so that a 1975. Section 18(2) authorises accused” criterion outlined earlier, citizen’s precious right to searches without Warrant where the immunity from arbitrary or searching officer has reasonable

the answer the Court of Appeal

gives in this case is nothing. Having unlawful intrusion into the daily grounds for believing that drugs are held the search to have been illegal, affairs of private life may remain present in the car. The search turned the Court cited a passage from unimpaired. (1978) 19 ALR 641, up a moderate amount of cannabis. Coombs and stated: 659.

The police detailed several grounds which they argued provided the [w]e cannot find any unfairness

to the accused in admitting the The issue here is a serious one. The necessary basis for the search: (i)

evidence of what was found in finding that the search was illegal Grace was reputed to be a drug user

the search of the car. is in essence a finding that the and dealer; (ii) on a previous occasion search was a fishing expedition, an a search of his car had revealed drugs (concerning which someone else had

The very absence of any discussion intrusion into someone’s rights is, in itself, a sign that along the way based on no more than a hunch

been convicted); (iii) drugs were the purpose of the discretion has (albeit one informed by experience) known to be Coming into the area been lost. The Court’s approach that this is the sort of person or from the district Grace came from; (iv) a cannabis crop had been grown

contains no discouragement at all to situation that may produce the undertaking of such illegal something. Failure to reject such

in the vicinity of where the car was searches. stopped. Concerning these grounds

This is especially police actions when they are significant because what the police successful is in effect also a failure

the Court concluded: did in this case was absolutely to protect all those people who are it is difficult to hold that there routine; this was not a one-off case subjected to similar illegal actions existed reasonable grounds to where extraordinary circumstances which prove fruitless, and which will

believe (as distinct from suspect) required extraordinary actions. It never come before the Courts. that drugs would be found in was a routine everyday incident and The answer lies in a change to the Grace’s car. . . . This makes the it is disappointing to see the Court formulation of the exclusion of evidence of the subsequent find of regard the admission of such evidence test. New Zealand should cannabis illegally obtained. illegally obtained evidence as abandon the focus on “fairness”,

equally routine. and adopt a “public policy” The key to this conclusion seems to As suggested earlier, the source approach similar to that followed in be the recognition by the Court that of the problem can be traced directly Australia. Under this style, the


CASE AND COMMENT

particular accused becomes a less of Canon Law the bishop had It is quite obvious that, if officers integral part of the exercise of the certain obligations and powers. The are devoting the whole of their discretion. More attention is given Church authorities took care of lives to this service, the Army to factors such as the seriousness of Father Sheffield’s welfare and paid would make provision to the breach, the case with which the him remuneration that befitted the maintain them, and that it in law could have been followed and nature and conditions of his office. effect does. But that does not the seriousness of the offence. Such The Bishop could move or transfer mean that the sum which is paid an approach will not be a certain a priest from one parish to another, has any similarity to wages or ticket to exclusion. There will always but he did not have the power to hire salary, or any payment given be cases where the situation required or fire. “His power over a priest,” contractually for services given or extraordinary measures, or where said the Judge, “is ecclesiastical, not for services rendered. It is a the breach was minor and civil”. The lawyer acting for the maintenance payment, to enable inadvertent. The key, though, is that bishop, Robert W Gw, them to carry on the work that the inquiry is directed towards the subsequently explained the situation they have undertaken. It appears actions of the enforcement agency in the following terms: to me therefore, that the rather than pursuing a normally appellant cannot establish, not fruitless search for merit in the What it really boiled down to is merely a contract of service, but particular accused. that a priest, when he becomes also any contractual relationship

The importance of an a priest, chooses a vocation, not at all which could possibly exclusionary discretion lies in the a job. It’s a calling and he’s under become a contract of service, or willingness of Courts to use it to a certain degree of supervision, be a contract of service. achieve its aims. This may well on but it’s always ecclesiastical occasions mean the acquittal of supervision as opposed to when In the case of Rogers v Booth the defendants for reasons unrelated to you hire somebody as a servant issue was whether the appellant was them personally, but the wider . . . In essence he’s a volunteer. entitled to compensation under the issues at stake are sufficient Workmen’s Compensation Act justification. There are two English cases that are

Simon Fhuwe when she fell over a bucket and

relevant. One involved the Salvation sustained injuries while working in Victoria University of Wellington Army and the other the Church of the Army’s hall. A similar issue had

England. In the first case Rogers v arisen some 26 years earlier in the Booth [1937] 2 All ER 751, it was case of re National Insurance Act

Benefit of clergy? held by the Court of Appeal that an 1911, re Employment of Church of officer of the Salvation Army was England Curates, [1912] 2 Ch 563.

The relationship of clergymen to not an employee of the Army’s In that case, commonly known as their relevant ecclesiastical structure General. At p 754 Sir Wilfred the “curate’s case”, it was held by is an interesting one at common law. Greene MR, spoke of the Barker J that a curate is not an The recent Canadian decision relationship between officers of the employee of his incumbent or Renault v Sheffld (Supreme Court, Salvation Army and the institution bishop so as to make him British Columbia, May 1988) as a whole. He said: compulsorily insurable. A curate’s illustrates the point. status is conferred on him by an

In the Canadian case the plaintiff It is a relationship pre-eminently ecclesiastical law. had left a package of money of a spiritual character. They are The question arises in the light containing some $26,000 with a united together for the of these cases as to the position of Roman Catholic priest, the preformance of spiritual work, clergymen, and men and women in defendant. Apparently the money and, in order to carry out religious orders, in terms of the New along with some funds of the Parish efficiently the ends they have in Zealand Accident Compensation was stolen. The plaintiff sued the view, they submit to a very strict Act. P J Downey parish priest for negligence and also discipline, and a very strict for breach of contract, claiming that command, On the face of that, he was a gratuitous bailee of the it appears to me that the money. Since the parish priest necessary contractual element himself was quite impecunious the which is required before a plaintiff also sued the Roman contract of service can be found Catholic bishop of the diocese as a is entirely absent. The parties corporation sole and in his personal when they enter into a capacity, claiming that he was relationship of that kind, are not vicariously liable as the priest’s intending to confer upon one employer or principal. another rights and obligations

The case is referred to in The which are capable of enforcement Lawyers weekly, for 29 July 1988, in a court of law. under the catchy headline “God is priest’s principal, bishop is not The Master of the Rolls then quoted vicariously liable”. at length from the document signed

Mr Justice Houghton dismissed by the officer relating to rights and the bishop from the suit. The Judge duties. He then went on to say at accepted that according to the Code p 755:


JUDICIARY

Retirement of Rt Hon Sir Ronald Davison, GBE, CMG Speech by Rt Hon Geoffrey Palmer, Attorney-General at the final formal sitting by Sir Ronald Davison as Chief Justice of New Zealand in the High Court, Wellington, on Friday 3 February 1989.

Chief Justice: Sir Ronald Davison: We are gathered in this Courtroom today with regret that it is your Honour’s last sitting, but with pleasure that we can pay a tribute to your public service.

Each Chief Justice carries out the duties of the office in a distinctive way, and few leave it without making a distinctive mark on it. It is probably true that none who hold such an office will escape without criticism of some aspect of his or her performance of it, but it is the long view of the whole term which is important.

In the 11 years that your Honour has been the Chief Justice of New Zealand, you have assuredly made your mark on the High Court and the country’s judicial system. You were appointed before the Royal Commission on the Courts had reported. But it had been working on its task for a year and a half and was expected to produce recommendations for significant changes in Court structures. Your accession to office was in circumstances very like those of your leaving of it. That is because we are even now expecting a new report from the Law Commission likely to lead to further changes in the Courts.

The occasion for the further report does not indicate, as is sometimes the case, that what was done after the first was inadequate or unsuccessful. On the contrary, it is because the changes have been so successful that we can see the growth in maturity of our system. This provides a base for further change to meet the demands of changing times.

There have been many changes in 11 years:

l the enhanced jurisdiction of the District Court which has in particular taken in hand a great deal of jury trial work in criminal cases;

l the creation of the Family Court which has taken over matrimonial proceedings and other family related matters;

l within the High Court the creation of the short-term office of Executive Judge which was also introduced into the District Court (and has proved to be a great success in both);

l the establishment of the Commercial List, in the first instance in Auckland, to provide the kind of adjudicative process needed if commercial interests were still to resort to the Courts;

l the introduction of Masters in the High Court to do work related to High Court proceedings which did not require consideration by a Judge;

l the expansion in the size of the Court of Appeal;

a4 NEW ZEALAND LAW JOURNAL - MARCH 1989

JUDICIARY

l the increase in the numbers of before proceeding to a conclusion would ensure progress on matters the High Court and Court of which you could approve as not Appeal from 22 in 1978 to 31

such as new accommodation, which only just but also sensible. are dear to the hearts of Judges and

now (which, including It is probably the regret of most anyone else who has to do with the replacements, if my count is Chief Justices that they can rarely Courts. Your reluctance to take no correct has required the allow themselves the duty of sitting for an answer if there was any appointment of 25 Judges in 11 in what are likely to be long cases glimmer of possibility of getting years); or the pleasure of writing elaborate another one might also be reflected

legal judgments. Their public in the results you have obtained. l the introduction of provision service is none the less on that You have an easy relaxed

for a High Court Judge to sit account. In the event the law reports unruffled manner, Chief Justices in the Court of Appeal for show your Honour to have have sometimes gruff and criminal cases; performed both of these duties. forbidding figures. It was a pleasure

During your period in office I am to deal with you. 0 new principles of Court able to say, and I am sure my If you, Sir, have shown

management have been predecessor, the Hon J K McLay, equanimity, it must be said that introduced and experiments would be able to say, that you have Lady Davison has a relaxed charm conducted with new evidence been assiduous in your which has added to the pleasure of recording mechanisms; representations on behalf of the so many legal conferences, dinners

Judges to see that their conditions and other functions throughout the l a number of new Court have kept pace with changes length of the country.

buildings have been opened and elsewhere. You have also worked to There are three bright spots in a great many are in the course see that opportunities have been this day: for you that you know to of being built; the Courts made available for them to meet whom the succession to your office Consultative Committee which Judges overseas and to attend has passed, and you demonstrably brings together representatives judicial training institutions have confidence in that of the Judges of all Courts overseas, and that there have been appointment; for us that you have except the Labour Court, the sufficient numbers on the Bench to agreed to have your portrait added Law Society and representatives ensure that workloads were kept to those which line these walls and of the Government and of the within manageable bounds. finally that you are retiring when general public and which the In your dealings with the you and Lady Davison are both in Chief Justice chairs has been Government and its agencies on the vigour of health and have good established; behalf of the Judges, your Honour prospects of enjoying a long

has smoothed the way for a number retirement together. l a settled procedure has been of developments by declining to On behalf of the Executive

agreed on for the appointment stand on the dignity of office. You Branch of the Government, I thank of Queen’s Counsel. have also been ready to engage, with you for your distinguished public

unfailing equanimity, in discussion services and extend our warmest at any time and with anybody if that good wishes for the future. q

You would not claim credit for all of those changes, but you have been involved in them all, either advocating the change or agreeing with it and supporting its introduction when an obscurantist approach could have slowed the pace of development.

The result has been a judicial system which is alive to the needs of the day whilst maintaining a firm connection with those traditions of the past which make the Courts such an important part of our Constitution.

Your own judicial work has been strongly centred in the field of administrative law and the control of the work of the Administrative Division of the High Court which belongs especially to the Chief Justice. You have been noted for the speed with which you have rendered judgment after a hearing. You have also been noted for a lucidity of style which sets out the significant facts and the relevant law concisely


LEGAL EDUCATION

Educating lawyers for the 21st century By Rt Hon Sir Ivor Richardson, a Judge of the Court of Appeal and Chairman of the Council of Legal Education.

This article was originally given as an address to the Australasian Professional Legal Education Conference held in Wellington on 5 November 1988. Sir Ivor considers some of the changes and challenges that may face those involved in legal education within the next 10 years. He emphasises some points from the Gold Report and concludes by listing five vital issues that will have to be resolved the crucial features of legal practice; the relationship of professional responsibility and commercialperformanc~ responding to technological advanceq rectifying discrimination; valuing cultural diversity.

The topic for discussion today is the traditional Courts? Or to be education? No doubt many further educating lawyers for the 21st involved in any kind of dispute lines of enquiry could be opened. century. To provide an answer we resolution? Tb advise on legal Questions in this area are much first need to ask what role lawyers questions ? To facilitate problem easier to pose than to answer. should have in that society. That in solving in commerce or in family Where then to start and to end? turn conjures up a host of and property affairs? To approach It would be presumptuous for me questions. What kind of society do it another way how, if at all, is to pretend an understanding of we want to be in the 21st century? specialisation in various kinds of Australian society on the basis of How do we set about achieving the financial and business and property limited work experience there and social and economic goals we seek? consultancy different when carried social visits, and I shall be speaking lb what extent should we expect the out under the badge of legal practice from the perspective of a New education process to develop and from where it is carried out Zealander. Clearly however there is change society as distinct from separately or as part of other a shared commitment to a reacting to presently identified activities? democratic form of government; to needs? Then against that background we the rule of law as a means of

The next level of questions come at last to consider the controlling the use of power and of concerns the functioning of the legal education of lawyers. Again there is providing for-the orderly settlement system. If the goal is to have a a series of questions. At the tertiary of disputes between citizen and workable system in which people institutional level is law a multi- citizen or citizen and the state; to the have faith, how do we assess purpose course equally valuable for operation of a mixed economy with whether it meets that goal? By the those expecting to be engaged in private, co-operative and public criteria of access, process, standards problem solving, negotiating and activity; and to the balancing of and outcomes? And how are those advising in business and individual, family and community qualities measured and to what government as it is for those responsibility. Clearly too the extent is justice measurable on a cost intending to practise law? To what continuing development of CER benefit basis? What are the extent should the answer to that should lead to a greater respective roles of the individual, the question affect the course content harmonisation of our commercial family, the state and other and the method of instruction? To laws and practices. Over time our institutions of society in the justice what extent should legal education shared heritage, geography and system? be available at a range of community of interests in the

Associated with that is the role institutions and through a range of Pacific may lead to further of lawyers in that society. When we courses? How should it be funded? economic and political institutional speak of lawyers are we limiting the What is the future of para-legal links. discussion to barristers and work and of Pam-legal education? I want now to answer some of my solicitors? Should we assume that Where does responsibility for questions and in doing so to narrow the structure of the legal profession educating the Judges lie and what the focus of the discussion today to will or should remain frozen in the form should it take? Whether or not a number of changes and challenges time warp of the 198Os? What are tied to maintenance of credentials, which I think those involved in legal the irreducible functions of lawyers what is the role and what is the education may be expected to face in society? To conduct litigation in content of continuing legal over the next decade and beyond. I


LEGAL EDUCATION

shall begin by saying something about the objectives and principles underlying the justice system and then go on to discuss some of the challenges facing the next generation of lawyers and the place of legal education in meeting society’s needs, both for professional training and as a multi- purpose education leading to other career choices in the private and the public sector.

Reporting in May of this year the New Zealand Royal Commission on Social Policy identified the objectives of a workable and credible system of justice as being:

1 to provide a fair and efficient means of dispute resolution;

2 to uphold the rule of law in a manner consistent with individual justice in the protection of society; and

3 to provide a forum for the appropriate punishment of those who commit offences.

In a paper written for the Royal Commission by Dr Warren Young and Ms Caroline Bridge the authors identified five basic principles underlying the system of justice:

(a) it should be accessible and affordable to all citizens;

(b) it should protect the rights of minorities and disadvantaged groups;

(c) its decisions should be enforceable;

(d) it should be independent of direct political control; and

(e) it should provide a system of punishment which is humane, consistent and proportionate to the offence.

On their assessment they concluded that in many respects New Zealand’s system of justice has not managed to observe these principles. There is a widespread perception, especially amongst some ethnic minorities and disadvantaged sections of the population but to some extent amongst all consumers of the legal system, that it is complex, alien and

remote from the lives of ordinary people. There is also a perceived ethnocentric bias both in its procedure and in outcomes, and the feeling that the system is failing to provide an adequate service or adequate redress to significant sectors of the population, and is therefore failing to regulate efficiently and effectively relationships between citizens.

This takes me back to the question I asked earlier as to how a system of justice is to be assessed. Here, as in other areas of social provision, neither fairness nor efficiency should ever be lost sight of. Resources, material and human, are always limited. No one would suggest that access to justice requires that the state ensure unlimited provision of legal services to everyone in every situation on a demand driven basis. To do so would bear unfairly on others caught up in the process as well as diverting resources away from other uses. Rather it is a matter of ensuring that equal justice under law becomes a reality rather than being confined to those who can afford it. And here there is a real challenge for all of us. Not only are societies such as ours more litigious than previously - as reflected in the criminal and civil statistics, the case load of tribunals of all kinds and increasing reliance on alternative dispute resolution machinery - but the nature of the cases dealt with has also changed markedly. Changing social attitudes in an increasingly diverse and restless society and the greater willingness to challenge previously accepted norms and structures have contributed. Paradoxically the increased costs of delivery of legal services as the legal profession geared itself to handle better the increasingly complex and increasingly international corporate commercial work, and the limited availability of legal aid have both added to the problem.

Here then is a major challenge for lawyers and legal educators over the next twenty years. It is to ensure that in conformity with common standards of social justice in our respective countries adequate machinery is available for the fair, efficient and orderly resolution of disputes. That will I think require much more emphasis on public interest law in the law schools and

on the part of the legal profession and the legislature. But it will need more than that. It is a matter of delivering adequate legal services to the full spectrum of society. Not just to the rich and the downtrodden, but also to the silent majority. Not just through a traditional focus on the adversary system in the general Courts, but also through mediation, conciliation, arbitration and other alternative dispute resolution machinery. And no system can be regarded as either fair or efficient unless it provides for the orderly resolution of disputes within a reasonable time.

In considering the legal aspects of the great issues of our times we must recognise that litigation under the adversary system does not readily allow for an extensive social enquiry. The parties or their lawyers may lack any interest in exploring wider issues. The Courts have not developed the techniques of obtaining amicus curiae briefs from government and affected industry and citizens groups. Yet we can benefit from a much more rigorous analysis of the economic and social and administrative costs of the orders we are asked to make.

Let me give two examples. One concerns the development of the principles of natural justice and fairness in the administrative law context and potentially spreading into private law areas. I do not know of any research into the wider costs and benefits actually achieved but I suspect that a consideration of outcomes as well as processes might lead to a more cautious application of those principles. The other concerns the development of the modern law of negligence. Again it would be useful to have an analysis of the costs to society and how they are distributed. For example, in New Zealand the economic burden of careless advice and omissions on the part of employees of local bodies has to some extent been shifted from luckless plaintiffs to local bodies. However that burden may not in the end rest on ratepayers as the Courts perhaps expected, but may have been shifted through increased permit fees to the construction industry and be ultimately reflected in building costs.

It is in consideration of all those wider issues where the system of legal education is so important. In a passage in his report on the reform


LEGAL EDUCATION

of professional legal training in New that the rigorous training in analysis interdepartmental studies in law and Zealand, 1987, Dean Gold and evaluation of legal principles economics and law and sociology. succinctly brings together various and underlying policies is now, we features of modern legal education.

Another quite differently focused all like to think, at the heart of legal

It is a lengthy passage, but I quote view of future needs for lawyers is

education. There is a healthy reflected in the proposed LLB it in full because it bears on a insistence in much of our legal programme of Bond University number of matters I shall be education on the examination of which identifies communication discussing. He said: social processes which legal rules skills, computing and data skills,

now serve. That focus has extended management, and cultural and As with all university education, the ability of law graduates to assess ethical values as core subjects. the study of law, especially at the the wider considerations Most of the law schools have undergraduate level, seeks to increasingly relevant to the already responded to the changes in assist students to develop resolution of controversies that call curriculum requirements for intellectually and to acquite those for an evaluation of economic and admission purposes by modifying cognitive skills and strategies social values and goals.

The second of Dean Gold’s their own degree requirements. The

which are more or less common points I want to emphasise is that

resulting changes will provide both to all higher level disciplines. In opportunities and challenges for law particular it seeks to hone and only those courses which serve as schools and students alike. refine the skills of analysis, foundations for legal study need to The third point is that lawyers synthesis and evaluation, to aid be prescribed. The review Of legal obviously need to develop an both in expressing the value and education in New Zealand carried understanding of the law in practice utility of law and its future out under the aegis of the Council Lawyers must be equipped to application. Problem-solving of Legal Education was instituted predict how the law will operate in generally speaking, is an because of endemic concerns over actual fact situations. Facts may be important skill set which the PrOfeSSiOnal and skills based messy. Their identification and the

legally educated require in all training generally. The review operation of legal rules must be their work settings. Beyond such committee and the Council soon assessed and reassessed in today’s intellectual skills development lies realised that those concerns had to world and with regard to often the desire to instil learning in the be considered in the context of the unstated judicial attitudes. The contexts, concepts, principles and total programme, and so having academic rigour of the case method theories of law. Law education is regard to the degree requirements and the learning and critiquing of both deep and varied. Because for admission purposes. Because of basic legal assumptions through law cannot helpfully be the dominating inflUenCe of the analysing judicial decisions are a

abstracted from its social, long lists of subjects prescribed for significant component of legal

economic and political milieu, it admission purposes there has in the education. But Holmes’ aphorism cannot be truly understood past been relatively limited that the life of the law has not been

except in the context of human opportunity for New Zealand logic: it has been experience,

aspiration and endeavour. Yet it students to pursue elective areas and remains true. Legal principles are is alsO a practical subject which for New Zealand law schools to given limits in their practical

seeks solutions to difficult develop their own strengths and application, and theory and practice problerns of policy and justi= In directions. Following a great deal of should be integrated right through the best of all possible worlds it debate the Council reduced the core the degree programme But, and this is a general legal education which admission requirements down to six is preaching to the converted, prepares graduates to face and of the 17 courses required for degree professional legal education needs adapt to change in all aspects of purposes. They are basic courses in to be the subject of special focus as their lives, but especially legal system9 contract, tort% in the skills-based courses in throughout their legal careers. property including equity, crimes Australia and now in New Zealand. Law is anything but static: It is and public law. We took the view The fourth point to be effective lawyers who can that it is not necessary for every emphasised is that law should be respond to the dynamic forces practising lawyer to have taken viewed as a multi-purpose course. with which they are bound to be fami1y law* ‘Ompany law, As with all university graduates, faced. Therefore, only those commercial law, evidence and lawyers receive a general education courses ’ foundationswit!iiw s~~~ye- zi

taxation. We considered there was in the foundation of the discipline. much mom to be gained by allowing They develop intellectually. They

concepts policies vahtes and greater flexibility and OPportUmties focus on concepts, values and theories Ad to be’preskb&. If for some specialisation. Boom must principles. Law and public issues are one adopts this “building block” also be allowed for development of increasingly enmeshed and lawyers approach one aSSureS a strong courses to meet or anticipatecurrent are often operating at the focal basis and myriad opportunities to needs. Several areas may be noted. point of controversy. Because of the ensure the acquisition and One group involves minority rights, content of many law courses and the development of appropriate legal the Treaty of Waitangi, cultural range of teaching methods

methodology, as well. influences in law and women’s employed law schools are exciting studies; another includes dispute places to be. If law schools are resolution, professional achieving their objectives those

There are four points I would responsibility, ethical responsibility foundations and the skills of particularly emphasise. The first is and clinical education; and a third analysis, synthesis, evaluation and


LEGAL EDUCATION

the making of judgments are just as be reduced to a common standard, of the population on a low cost important for those engaged in any more than that apples and basis on the other; advising and decision making in oranges can be compendiously and business and government as for sensibly measured together as pieces 4 recognising and rectifying those working directly in the of fruit. discrimination against women practice of law. A law degree may Inevitably many lawyers and and minorities in the market properly be regarded as an Judges will at some time be involved alternative education to an arts or

place and in the corridors of in social change and in resolving power; and

commerce degree by those who conflicts between social values. never intend to practise law. And the Legal education should prepare for 5 valuing cultural diversity and systematic examination of judicial this. It should assist in providing a recognising the unique decisions through the case system framework for recognising, character of New Zealand where the library is the laboratory, articulating and testing alternatives founded on the Treaty of provides some of the advantages of and for shaping the profession and Waitangi just as many other a scientist’s training and at much the law to meet the aspirations and less cost. If law is viewed as a multi-

countries such as Canada and necessities of the times. The Belgium have given

purpose degree that is all the more essential object of all social policy constitutional and social reason for the law programme to is to seek policies and structures to recognition to the circumstances allow flexibility to students and reflect the values and goals of the of their founding and to their above all to resist a narrow focus on people I firmly believe that, inspired ethnic composition. 0 the storing up of detailed knowledge in part by their legal education, of an ever expanding area of law lawyers can and should play pivotal subjects. roles in expanding a national vision

The fact that values need to be of a free and just society. Clearly continually reassessed, modified they, that is, lawyers and legal Mining and Petroleum and in some cases discarded and educators, must help to map out the replaced creates a stronger society directions in which society needs to conference in the longer term. What is move to answer the most troubling important is to recognise that legal questions facing the profession society is pluralistic and that it has and the nation. always been so. Pluralism always Any list of such legal questions The Australian Mining and existed in the differences between is bound to be arbitrary and to Petroleum Law Association has different generations. It always reflect the limitations of one’s advised that it is to hold its 13th existed in our two countries between background. In adding that change Annual Conference in Perth. The indigenous peoples and settlers; and and continuity sit uneasily together, dates are from 12 to 14 July 1989. the values of settlers reflected the no doubt I may be accused of different places from which settlers exhibiting that limitation, but 1 am bong the topics that will be

came. convinced that decision making in discussed at the Conference are: When looking forward as lawyers areas of legal and social change

and educators to the 21st century, requires a balancing of policy, - Water and Mining - Controls we can safely assume that society principle, precedent and in Conflict will be neither homogeneous nor pragmatism. My short list of crucial - Penalties, Forfeiture and static. The problem of identifying issues for New Zealand lawyers and Dilution community values and reflecting for their education for the 21st - International Sales Contracts - them in our social processes and century reflects that and according The Vienna Convention decision making is increased where includes: - Stamp Duty Developments there are different sets of values Affecting the Resources whether economic, moral, political 1 redetermining what are the Industries or social which are strongly, even crucial features of legal practice - Civil Disturbance to Resource tenaciously held. This is and expanding the development Projects unavoidable in a pluralistic society. of multidisciplinary activities; - Indonesia - Minerals and The problem is compounded where Petroleum society itself is in a process of 2 redefining the relationship - Trade Practices - Joint marked change and the outcome is between professional Marketing Implications not clear. The barb directed at responsibility and commercial - Intellectual Property - economics that the questions remain performance both within the Considerations for the the same only the answers change, megafirms and through the Resources Industries can be applied in other areas. Where range of legal practices in the - Recent Cases different kinds of interests are country; involved they cannot be balanced Further information about the without injecting the policy values 3 responding to advances in Conference and details of of those doing the balancing. We technology and in such a way registration can be obtained from should never be deluded into that legal services can be Ms Annette Magree, AMPLA, 8th thinking that values difficult to provided both for the affluent Floor, 160 Queen Street, Melbourne, balance should be ignored as and the corporate sector on the Vic 3000. Telephone: (03) 670 2544, externalities or that all values can one hand and for the great bulk ‘l&x: AA35307, Fax: (03) 670 2616.


CRIMINAL LAW

Police weapons (II): Firearms policy By Kevin Dawkins, Senior Lecturer in Law, University of Otago

This article follows on from the earlier article on police weapons dealing specifically with the Roper Report, [1989] NZLJ 60. This article considers such additional issues as Police General Instructions and the training of members of the Armed Offenders Squad.

Beyond the Roper Report purposes. In a substantial number of misuse] will also increase”. (Police Use cases firearms are carried in a purely of Firearms, Report of the Public Issues

I Extent of Police carriage and use of reactive role to counter violence which Committee of the Auckland District firearm would arise with or without the Police Law Society, 2 May 1983, p 5.) At the The Roper Report emphatically rejects presence. Typical of these situations very least, there is a significant risk the criticism that the Police use are armed offender incidents and “high that armed but inexperienced Police firearms too frequently. The official risk” operations like VIP and bank will draw weapons in circumstances record shows that only eleven people escorts. But firearms are also issued where a display of force is unjustified. have been shot by Police bullets since quite frequently for such other Once this tactical error has been made, the fatal shooting of Eric Stanley purposes as the apprehension of the incident can often be resolved only Graham on the West Coast of the South suspects and the execution of search by the actual use of firearms: (Fisher Island in 1941. It is also in point that in warrants. In these cases there is no Report 105-106 and references 7, 9, 11, almost twenty-five years of operation immediate danger to the public or 26 and 27.) the AOS have been involved in just Police and firearms are carried in seven shootings, although in recent anticipatory self-defence against any 2 Police General Instructions and times they have attended more than 150 violence that might occur as a result of Armed Offender Tmining incidents annually. Between 1980 and the Police intervention. (Fisher Report The risks attending these changes in 1987, for example, these squads were at 198-201.) Police practice are brought into sharp called out on 1352 occasions but only The results of the Fisher Survey relief by (i) the reported widespread three offenders were shot. (Reports of should dispel any lingering belief that confusion within Police ranks as to the the New Zim!und Police for the Years the tradition of unarmed policing circumstances in which firearms may e&d .?I March 1981-31 March 1988. ) remains as strong as ever. The plain fact be issued, carried and drawn; and (ii)

However, reassuring as these figures is that the Police increasingly carry the inadequacy ofthe present system of are, they do not disclose the extent to firearms against the mere possibility of armed offender training for non- which non-specialist members of the violence. To this must be added the specialist Police. (For an excellent Police carry firearms. This question further disclosure that in recent years analysis of the problems see the Fisher was the subject of a recent survey Police vehicle patrols in major cities Report at 81-106, 199-201 and 210-240.) conducted by the independent examiner have been armed twenty-four hours a of the fatal Dargaville shooting in day. (Deputy Comksioner K 0 (i) Police General Instructions March 1986. (fisher Report at Thompson quoted by Stirling, “The The confusion about the permissible 202-209.) The survey was based on Right to Shoot”, Z7ze Listener, vol 104, use of firearms is not surprising in view information about the issue of firearms no 2260, 28 May 1983, p 15.) of the General Instructions on the from five Police stations in the North Admittedly, these developments do not subject. At best they are an obscure Island ranging from a sole charge necessarily represent any retreat from amalgam in which general principles station in an isolated rural area Police commitment to the principal of and broad and narrow exceptions are (Maungaturoto) to a major station minimum force and the policy that intermixed with statements of policy serving a population of 135,000 in a “firearms are not to be carried as a and tactics and other material of an satellite city (Henderson). While the matter of general practice in the normal explanatory or educational nature. sample was small and the data base course of duty”. (General Instruction Consequently it is difficult to identify limited to firearms registers and reports F60(1).) For their part, the Police the central criteria that apply to a range from the surveyed stations, the results defend the increased incidence in the of “uses” from the decision to issue a supported some broad conclusions. Of issue of firearms as a regrettable but firearm or commence an armed these the most important was the unavoidable response to escalating operation to the drawing, pointing and revelation that it is “not uncommon” violent offending. Nevertheless, “if actual discharge of weapons. The main for firearms to be issued to non- firearms are carried more freYentlY problems can be summmarised as specialist Police for two quite distinct there is a chance that their use [and follows: (Fisher Repoti at 216.)


CRIMINAL LAW

1 The principal purpose for which change has been a revision of the form firearms may be used - to prevent and content of the standard firearms death or serious bodily injury - is instruction card which is designed as an not clearly and consistently stated. aide memoire for Police officers issued Often it is left as a matter of with firearms. inference to be drawn from other detailed preconditions.

(ii) Armed offender training General Instructions A90 to A96 and

2 The Instructions do not make it clear whether the precondition of human danger is limited to immediate or imminent danger or whether it includes anticipated or even possible threats to safety.

3 No clear distinction is drawn between the actual discharge of a firearm and the use of a firearm in other ways earlier in the sequence leading up to the discharge.

4 It is not made clear whether the preconditions for using a firearm extend to handling a firearm in the presence of an offender or to the decision to initiate an armed course of conduct which may itself precipitate the use of firearms.

The existing controls on access to, accountability for and supervision of the issue of firearms could also be improved. While the general rule is that firearms are not to be issued except on the authority of a Commissioned Officer or NC0 (General Instruction

the AOS Instruction Manual express various strategic and tactical principles intended to govern the conduct of armed offender incidents. But in the main these principles are applicable to the conduct of planned operations by specialist squads. They have little relevance to situations like the 1986 Dargaville incident where non- specialist Police encounter an armed offender in circumstances where specialist assistance and reinforcements are not immediately to hand. Here again the Instructions should be reviewed, perhaps by supplementing the requirements relating to firearms with a prescription of basic principles for dealing with armed offender incidents generally. (Fisher Report 100-106, 226 and 274.)

The 1986 Dargaville shooting also exposed the inadequacy of the present system of armed offender training for non-specialist members of the Police. After an extremely thorough review of the circumstances of that shooting, the examiner reached the following conclusion. (Fisher Report at 111-141.)

F59(5)) in practice the decision may be made by a constable. (Fisher Report at

1 In the absence of an existing threat

168-169.) In addition, where a superior to human life the decision to

officer is not available, a constable may commence an armed operation was

issue a firearm to himself in contrary to General Instructions.

emergencies (General Instruction F59(4)) and may carry a firearm at his 2 The two constables involved acted

discretion where he has reasonable precipitately and failed to gain

grounds for expecting to encounter any readily available information that

of the circumstances iustifving use of a the offender had a hostage.

firearm (General Instruction-F60(2)). What is less than satisfactory with both the general rule and dispensation provisions is that a non-specialist Police officer with minimal armed offender training may be left to take vital decisions that could lead to the actual use of firearms. (Fisher Report at 170.)

3

While cautioning that existing restrictions on Police use of firearms should not be relaxed under the guise of clarifying the General Instructions, the Fisher Report recommended that the provisions relating to firearms should be redrafted. (at 214-225 and 223) In the form proposed in the Report such a revision would redress the shortcomings identified above. To this point, however, the only significant

4 They exposed themselves to possible fire from the offender at close quarters and made it predictable that they would have to shoot in self-defence.

5 They engaged in a hand-to-hand struggle with the offender while holding loaded revolvers.

6 They created an unacceptable risk of danger to the public by tiring in

They effectively committed themselves to the use of firearms by drawing their revolvers at the very beginning of the confrontation, provoking an equally aggressive response from the offender.

conditions of poor visibility in a central urban area at a time when other persons were known to be in the vicinity.

7 They failed to adopt alternative non- violent courses of action that were open to them.

But alongside these conclusions the examiner found that the constables exhibited a high standard of marksmanship and skill in the physical handling of firearms. This contrast between raw shooting ability and inadequacy in fundamental matters of policy, strategy and tactics reveals the imbalance in the present system of armed offender training of non- specialist Police. Whereas specialist squads undergo intensive and comprehensive training programmes, non-specialist training is limited to initial post-recruitment instruction and periodic refresher courses that are heavily oriented towards skills in using firearms. Even then, it seems that refresher training may be infrequent, irregular and not necessarily attended by all Police eligible to do so: Penlington Report at 219-220; Fisher Report at 233-235. Of more concern, however, is the fact that strategy and tactics, including non-violent solutions to armed offender incidents, are largely incidental to non-specialist training programmes. Predictably, under such a system there is the “quite serious danger . . . that the use of firearms will be the only technique impressed upon trainees and relied upon during an armed offender crisis”. (Fisher Report at 234.)

Improvement needed The need for improvement of this system is the more pressing in view of the non-specialist’s current role. On the one hand, the Police are not routinely armed and the general policy is to call in the AOS when an armed offender incident arises. Where possible, the role of the non-specialist is evidently intended to be limited to the relatively passive functions of surveillance and containmentuntil the specialists arrive. But on the other hand, relatively junior non-specialists may have to deal with armed offender incidents at street level “far from the support of more experienced or senior officers and reinforcements”. (Fisher Report at 210.) Ironically, in this type of situation the specialists usually arrive on the scene at a relatively late stage - often after the event.


CRIMINAL LAW

Furthermore, there are only in some quarters that anti-terrorist Concluding Observations seventeen AOS units throughout the assault tactics had influenced the In the past the subject of Police country, and their members are greatly aggressive approach adopted by the weaponry seems to have been tacitly outnumbered by non-specialists. AOS during that operation. However reserved to the exclusive domain of the Consequently there may be the independent examiner concluded Police Department itself. Perhaps this considerable delay before an AOS can that no members of the squad were simply reflected indifference on the reach an armed offender incident, with “‘gun happy” and that their actions part of a community rather the result that non-specialists are should not be regarded as evidencing a complacently accustomed to a tradition expected to deal with the situation. In shift in Police attitudes towards the use of unarmed policing. Whatever the the 1985 Gore shooting, for instance, of firearms. (Nicholson Report at 80.) explanation, changes in Police weapons the nearest AOS was at Invercargill, In the course of the examination the policy and several fatal shootings over sixty-four kilometres away. While there Police also defended the concept of the last few years have certainly stirred was some delay by the Gore Police in dual membership of special squads on public awareness and kindled a alerting that squad, it would not have two grounds. First, under present growing insistence on stricter had sufficient time to influence the conditions there is neither the need nor accountability .for Police use of course of events even if called out resources for separate squads. As firearms. This much is evidenced by earlier. (Penlington Report at 136-142.) presently constituted, AOS are the enactment of the long-overdue The 1986 Dargaville shooting is composed of members drawn from Police Complaints Authority Act 1988. another case in point. Although the general ranks who perform their duties One of the central provisions of the new Whangarei Team Policing unit was on a part-time basis. To that extent, legislation empowers the independent alerted by the Dargaville Police, it these squads have always combined Authority to investigate, of its own could not have been expected to reach dual roles. In addition, the extra motion and on a “public interest” the scene for almost an hour. (Fisher training and operational experience basis, any incident where death or Report at 44 and 67.) gained as a member of an Anti- serious bodily harm has been caused by

The dilemma is that the current Terrorist Squad is seen as being a member of the Police acting in the system can require a non-specialist to beneficial to the performance of normal execution of duty (s12(l)(b)). make critical decisions about firearms, AOS duties. Nonetheless, the examiner strategy and tactics while denying him considered that Regrettably, however, a good deal of adequate armed offender training. the public criticism directed at Police Various solutions have been advanced the more aggressive element weaponry in recent years has been ill- to correct this imbalance. (fisher involved in [Anti-Terrorist Squad] informed. While quick to take Report at 211-213 and 273.) Limiting all hostage rescue techniques and objection to the use of soft-nose Police use of firearms to specialists is training may have a carryover ammunition on humanitarian grounds, an obvious possibility, though probably influence on attitudes brought to the critics have been less inclined to beyond present Police resources. Apart bear in [AOS] situations. (ibid at acknowledge the operational from anything else, such a solution 113.) exigencies that limit Police options in would require a substantial increase in dealing with armed offender incidents. the number of specialist personnel.

However, while suggesting that the The Roper Report restores the balance. Alternatively, the armed offender

Police should carefully consider this Apart from making a valuable training of all operational members of contribution to the file of public the Police could be upgraded to the possibility and take “aPProPriate

level currently attained by specialist remedial steps” if necessary, his only information on Police weapons policy,

specific recommendation was that “the it advances a convincing case in squads. However this might also stretch

Police obtain the assistance of defence of the use of soft-nose Police resources and obscure the ammunition. Few would dispute its distinction between specialist and non- its consultant psychologist” in

investigating the question. (idem.) major premise that when lethal force is specialist functions. Of the remaining

As a matter of policy, membership of required as a matter of last resort, a possibilities, perhaps the most realistic

the two squads should be mutually Police bullet must be capable of option is a combination of the first two.

exclusive. This would at least keep faith immediately incapacitating an offender (Fisher Report 211-212 and 273.) Non-

with the announcement in 1979 by the who is armed to the danger of others. specialists would continue to have . . access to firearms, but on a limited and Commissioner Of Pohce *at’ But “stopping power” alone is not strictly controlled basis, while

[i]t is imperative that the public are enough. Sound strategy and tactics as receiving more comprehensive armed

left in no doubt that the development well as thorough training in non-violent offender training with extra emphasis

within the Police [of an anti-terrorist techniques are equally vital to a on strategy, tactics and non-violent

capability] will on no account be balanced Police weapons policy. The

techniques. adopted for dealing

with Fisher Report, in particular, has

conventional policing situations. exposed inadequacies in the present Anti-terrorist roles (ibid at III.) system of armed offender training for My final remarks concern the dual non-specialists. Although it would be AOS/Anti-Terrorist Squad roles of pressing the point too far to say that some specialist members of the Police. In practical terms, a clear-cut these shortcomings are the result of any In the Chase shooting at Petone in 1983 differentiation in the composition of the retreat from the policy of minimum the entry section of the AOS was two squads would also reduce the very force, some revision of current training entirely composed of active members real possibility that anti-terrorist tactics programmes is required if the Police of the Wellington Anti-Terrorist Squad. will be instinctively applied to AOS are to retain their commendable record Subsequently, criticism was expressed operations. of restraint in the use of firearms. 0


LAW REFORM

Some polite observations on law reform By D F Dugdale, of Auckland

The Law Commission’s Preliminary treated as part of a statute, although preamble is to be deemed to be part Paper NO 8 entitled tigislation and it is quite clear that marginal notes of a statute. Its Interpretation consists of 35 are settled not by Members of The Family Protection Act needs pages of proposals for a new Acts Parliament but by the Clerk after urgent attention. Is the judicial Interpretation Act and 200 pages the Bill’s passage. perversion of the original intention reporting the proceedings of a two- Now although one can hardly fail of the legislation away from the idea day seminar conducted by the to sigh as a taxpaper at the waste of need in favour of fair shares Commission in March 1988. The of money involved, it might be really acceptable? And if we are intellectual feast presented to the possible to dismiss with a resigned determined on that path should we seminar included two ladies from or tolerant shrug such a bundle of not consider the sort of system of the National Council of Women nonsense as Preliminary Paper No 8 fixed minimum entitlements to be giving a little talk on lobbying (“The were it not for the fact that while found in continental systems? Here Select Committee process can at the Commission is labouring to was a chance for the Commission times be quite useless”) and some produce this sort of mus ridiculus to develop skills in public admirably plain speaking by the in the real world important consultation, for if there is one law Clerk of the House of problems are being neglected. reform subject on which the Representatives Mr McGee (“It does Insurance law is one obvious common man is equipped to express seem to me that this compact of example. The law of consumer sales a view it is that of what is to happen mutual restraint [between the is another. And other matters are to his estate after his death. Legislature and the judiciary] is in falling into quite the wrong hands. But instead the issue was lumped danger of breaking down . . .“). The Ministry of Consumer in with some problems under the

But the only proposal of any real Affairs has prepared a discussion Matrimonial Property Act and in worth to be found in the report of paper entitled Consumers and respect of de facto relationships and proceedings is Farmer QC’s Credit. It reads as if penned by some a report on these topics has suggestion (based on the expense callow and wide-eyed innocent, appeared under the joint and risk of error involved in aghast at the wickedness of a world imprimatur of the Minister of ascertaining (perhaps many years in which guarantors are not Justice and the Minister of Women’s later) the precise contents of a Bill informed of their obligations in Affairs. Now the purpose of the at the stage when any given plain English and the usual Matrimonial Property Act 1976 was Parliamentary speech is made) that repossession agent lacks both the of course to alter the odds in the war reference by Judges to Hansard manners of a Marquis and the between the sexes. It is none the should be expressly forbidden by morals of a Methodist. (Plain worse for that (though we might statute (see Regional Director of English it seems is to English what have been spared all the humbug Education v International Grammar plain cooking is to cuisine. It is the about marriage partnership). But to School Sydney Ltd (1986) literary equivalent of boiled seek advice on changes to the 7 NSWLR 302). It is a proposal the cabbage). Matrimonial Property Act from the Commission seems likely to reject. Evelyn Waugh once observed of Ministry of Women’s Affairs seems

A fair gauge of the quality of the a fellow-writer that “to see him about as sensible as commissioning first part of the publication is the fumbling with our rich and delicate a draft for a new Criminal Justice statement in para 115 on what the language is to experience all the Act from the Mongrel Mob. Commission calls “open-textured horror of seeing a Sevres vase in the It should be noted in fairness to drafting” by which is meant the hands of a chimpanzee”. It is with the Law Commission that conferring of a discretion as distinct exactly that horror that one throughout its brief existence it has from the imposition of precise rule. contemplates the prospect of suffered from the absence from its “Whether it is appropriate” the commercial law changes promoted membership of experienced Commission tells us “depends on by the Ministry of Consumer members of the practising the type of legislation under Affairs. The job should be done by profession. This lack of coal-face consideration”. Well, yes, of course a properly constituted Law experience perhaps does much to it does. What might be helpful Commission. Such tasks are explain some of the matters would be to be told in which types performed by comparable bodies in mentioned earlier in this note, and of legislation open-textured drafting other jurisdictions. But what is our certainly shows up clearly on a is thought to be approprrate, but this Law Commission doing? It is reading of such of its publications question the Commission does not fretting about whether a new Acts as the report on limitation defences tackle. Interpretation Act should (or on the and Preliminary Paper No 7 on

In this part of the paper it is other hand should not) provide (as proposed that marginal notes be does the present legislation) that its continued on p 94


STATUTE LAW

An update on statutory interpretation By J F Burrows, Professor of Law, University of Canterbury

This article suggests that over the past few years there have been two general trends in statutory interpretation. The first is a movement towa& a more purposive style of interpretation. The second, and one closely related to the first, is a broadening of the context in which statutory provisions are to be read.

A Introduction treat “any horse, mare, gelding, 100 years old this year. It is always dangerous to pronounce mule, ass, ox, cow, heifer, steer, The “purposive approach” dogmatically on “trends” in sheep or other cattle” was held not demonstrates itself in several ways: statutory interpretation, for there to include a bull, simply because First, there is a willingness to give are so many variables: the type of “bull” was not clearly specified in words extended meanings so that statute, the style of drafting, the type the list. Such an attitude, amounting the Act’s purpose may be achieved: of interpretative problem, the very nearly to judicial non- holding, for example, that liquid individual Judge. Nevertheless one cooperation with the legislative spray is an “article”, (Weedair (NZ) can be reasonably confident in purpose, has been explained as Ltd v Walker [1961] NZLR 153) or observing that at least two general stemming from several possible that helping to steer a car is trends have been manifest in recent sources: for example a resentment “driving” it. (R v Clayton [1973] times: a movement towards a more of the increasing intrusion of statute 2 NZLR 211) This liberality with purposive style of interpretation into the subject-matter of the words helps also to keep older and, hand in hand with it, a commonlaw, andadesire to protect statutes abreast of modern broadening of the context in which the individual against govemend developments: a video-tape statutory provisions are to be read. action. The Courts seemed at times (Longcroft-Neal v Police [1986]

to be standing between Parliament 1 NZLR 394) and even a sound B The purposive approach and the individual, rather than truly recording (Z?e Penny ]19861 BCL 59) In times past Courts in the British giving effect to the legislative are “documents”. tradition interpreted literally. It was purpose! It would be misleading to Secondly, there are signs of a almost as if the only equipment say that literalism has disappeared tendency in respect of prolix or required was the statutory provision today. But one can say with badly drafted legislation, to look in question and the Oxford confidence that the last 50 years beyond the words to the underlying dictionary. At times such myopic have witnessed the slow growth of theme or purpose Dicta like this are attention was paid to the letter that a more purposive style of not uncommon: the very purpose of the legislation interpretation. In New Zealand this was defeated. In one old case (Ex has taken the form of the increased One of the features of the Act is parte Hill (1827) 3 C&P 225) a application of s S(j) of the Acts prolixity and some lack of statute making it an offence to ill- Interpretation Act, which is exactly precision in language: but I think

continued from p 93 there should exist side-by-side two thought it sensible on the grounds separate publicly-funded law reform that the Department was seized of establishments. Apart from the cost the topic (in the event its discussion

arbitration. One wonders whether they do seem to get under each paper on insolvency proves to be the report on court structure when other’s feet. Proceeding through little more than a warmed-over it emerges, coming as it does from Parliament at the time of writing is version of the Harmer report of the a group so constituted, will really a rather unsatisfactory piece of Australian Law Reform command much respect. legislation, the baby of the Commission) to exclude insolvency

Nor one suspects is the Department, called the Motor from the Commission’s company Commission assisted by the Vehicle Securities Bill. Meanwhile in law reference. continued existence (presumably as another part of Wellington there has Plainly some sort of shake-up is a result of a successful departmental on behalf of the Commission been needed. It would be a pity if it had rearguard action at the time of the invented a much better wheel that to await a change of government. Commission’s formation) of the will render the Motor Vehicle Perhaps it should be suggested to Law Reform Division of the Securities legislation obsolete the Prime Minister that it would be Department of Justice We could be namely an adaptation to New a handsome gesture of happy with either, but do we really Zealand conditions of the North reconciliation to the Thatcherite need both? It seems an American personal property wing of his party if he were to extraordinary extravagance that in security statutes. It is astonishing appoint as Minister of Justice that a small country like New Zealand that anyone should have ever nice Mr Prebble. 0


STATUTE LAW

the general intent of the statute approach has its limitations. It is not matters from the jurisdiction of the comes through reasonably clear. the answer to all problems, and even Courts), or which relate to powers (Rotorua District Council v Bay has dangers. First of all, there are of search or entry, or which could Of Plenty Catchmen t various kinds of legislative purpose. adversely affect the traditional Commission [1979] 2 NZLR 97 Some of these appear from the freedoms, are likely to receive close at 100 per Cooke J. See also words of the Act itself: for instance scrutiny by the Courts; they are Waitemata City v ARA [1982] from the long title, or simply from 2 NZLR 136 at 139 per Cooke

sometimes given an artificially a thorough reading of the Act as a narrow interpretation. This is far-

and Ongley JJ.) whole. In this sense indefeasibility removed from the purposive of title is the purpose of the Land approach: it is the Courts showing

There are some strong examples Bansfer Act, and equal sharing of that sometimes they still protect the where the Court of Appeal in the Matrimonial Property Act. citizen against the parliamentary particular has come close to filling These may be described as enacted purpose. I have seen it described as gaps in legislation by reference to purposes, or legislative themes. But judicial “quality control”. As long this “general intent”.l The Courts other so-called “purposes” are not as such a judicial bill of rights must “work out a practical found in the words of the Act: they remains - and long may it do so interpretation appearing to accord are the social or economic goals - section S(j) of the Acts best with the general intention of which motivated the legislators. In Interpretation Act 1924 will not tell Parliament as embodied in the Act this sense, the “purpose” of the Land the whole story about statutory - that is to say the spirit of the Settlement Provision and I-and interpretation in this country Act”.’ Acquisition Act 1952 was equitable

Thirdly, there is increasing resort settlement on farms to resolve the by Parliamentary Counsel to problem created by the return of c Context statements of purpose in modern servicemen after the Second World When the literal approach to Acts, particularly in the long title, War; the “purpose” of the Property interpretation was in its heyday, and increasing resort to them by the Speculation l&x Act 1973 was to halt there went hand-in-hand with it a Courts. They “can be helpful, even the rapid inflation of land prices very restricted view of the context crucial”.’ which resulted from uncontrolled in which a statutory provision could

Finally, and most importantly, speculation. No doubt the common be read. In 1913, this statement was there have been shifts in the old sense of the interpreter generally made in the House Of Lords: attitudinal presumptions which leads to a proper appreciation of prescribed that certain Acts (for what these extra-statutory purposes Were the words of the section example tax Acts, penal Acts and are, but sometimes (particularly if ambiguous, other sections and Acts affecting rights of property) the Act is older) they may have to subsections might have to be must be strictly construed in favour be sought in materials outside the involved to clear up their of the individual. These four corners of the Act itself: meaning; but being “presumptions” were often directly committee reports, Parliamentary unambiguous, such a reference opposed to a purposive approach: Debates, and the like. The danger is might distort the meaning and so they could be used to control and that an interpreter may be led into produce error. (ticher & Sons cut back the parliamentary purpose guesswork. Ltd v London Society of rather than give effect to it. They are Secondly, the purposive approach Compositors [1913] AC 107 at much weaker these days. There are can really only operate if the words 126 per Lord Shaw) numerous statements, particularly of the Act contain sufficient in cases involving penal statutes, flexibility to permit it. In the last There has been a substantial that those who are within the evil analysis Courts interpret statutes, advance on this in more recent at which the statute was aimed they do not amend them, or add to times* should not be permitted to escape them. Thus if the words of an Act on a narrow interpretation.5 are crystal clear in a particular sense, I Internal context: The scheme of Section S(j) and the purposive that is the end of the matter. No the Act approach have even made a tentative Court can make words mean things It is now accepted that one should appearance in cases involving tax the English language will not permit not pronounce on the meaning of statutes, (eg, Duff v CIR [1982] them to mean. I think one can any provision in an Act until the Act 2 NZLR 710) particularly anti- currently detect a concern among has been read as a whole, and that avoidance provisions.” In a modern some members of the profession provision considered in the context state such a movement is surely that this fundamental principle is of the “scheme of the Act”. No inevitable: Government through occasionally forgotten. principle has been more emphasised legislation would be much less than Thirdly, however dominant the by the Court of Appeal in recent efficient if the Courts continued to “purposive” approach has become, years. (Eg, the judgments of take every opportunity to protect there are some occasions where the Richardson J in Martin v Martin citizens from the reach of legislation Courts simply do not apply it. This [1979] 1 NZLR 97 and Callender v with a social purpose. Individual is particularly the case if they Wellington City Council [1980] rights cannot always prevail over the perceive a piece of legislation as 2 NZLR 55.) public interest, threatening certain values which are A consideration of the scheme

fundamental to our legal system. may reveal themes and purposes Limitations Statutes containing %rivate clauses” which colour the interpretation of Nevertheless the purposive ( 1 c auses which attempt to remove particular sections; (See for example


STATUTE LAW

L D Nathan & Co Ltd v HotelAssn be arguable that the rule about part which the provision under of NZ [1986] 1 NZLR 385) one’s headings deserves reconsideration. consideration must fit; Acts on initial impression of what a section similar subject matterlo (so that means may have to be modified as themes may be discerned, and a result. (A good emmple is the 2 External context: extrinsic House of Lords case DPP v materia1s

analogies and contrasts drawn),

Schildkamp relevant treaties and conventions”

[1971] AC I*) (a) Threshold

(so that the Act may be interpreted Comparisons of one section wtth

The most important movement in in harmony with New Zealand’s others may reveal helpful analogies

statutory interpretation in recent international obligations), and even, or contrasts. The pattern of a group

years has been the increasing in appropriate cases, regulations and

of sections may more clearly readiness of Courts to have regard

other subordinate legislation. (Eg, indicate the purport of one of them.

to extrinsic materials. There is a BACTA v Wstminister CC [1988] It would of course be wrong to

as a universal threshold question on which there 1 All ER 740) Then, the social and regard “scheme” historical background of the Act solvent any more than the purposive is still a difference of opinion. Some

would say that if the Act is crystal may be regarded. Understanding the

approach, to which it is linked. Some Acts have never had a clear as it stands one should not go situation which existed when the Act

beyond it to examine extrinsic was passed may illuminate its “scheme” as such, but are rather a

materials:’ it is unnecessary to do so, purpose, and clarify some of its

pot-pourri of provisions: the Property Land Act 1952 is an and it could be positively harmful provisions. There are some obvious

difficulties in the use of material of example. Others may have lost such in that it could distort reliance on this last kind: it may require coherence of scheme as they once apparently clear words. Others,

Howe would ww that one can (Hansard committee reports considerable research to find it

had as the result of frequent amendment over the years. And examine extrinsic materials to textbooks ‘may be possible sources; then, of course, there are cases confirm an apparently clear

meaning; or, even further, that one and when found it may prove to be

where one section of an Act is so is never justified in pronouncing of minimal use in resolving the

clearly expressed, and so obviously finally that a statutory provision is question at hand: often it is

capable of only one meaning, that clear until one has surveyed all the

interesting rather than helpful. It even the most coherent scheme may also be objected that in some cannot slant it. (K & S Lake City relevant available information.8 In

so far as it is possible to make a cases such an inquiry can Freighters Pty Ltd v Gordon &

conclusion, the New Zealand Court concentrate attention on the past

Gotch Ltd (1985) 60 ALR 509) of Appeal would appear to support rather than the present, for

There is a purely practical the more generous view. (In Marac sometimes Acts of Parliament

consideration too: some Acts are so Life Assurance Ltd v CIR [1986] outgrow the initial reasons for their

bulky (the Local Government Act 1 NZLR 694, for instance+ Cooke J passage, and take on a life of their

1974 is 670 pages) that it is a counsel said it was permissible to refer to

own in the modern world (see for of unattainable perfection to require example Human Rights that before one advises on the extrinsic materials to “confirm” an

Commission v Minister of Labour meaning of one of its provisions one interpretation already arrived at.)

The true answer may simply be that [1984] 2 NZLR 108 per 113 per should have scrutinised all of them.

this is a matter in which the Court Eichelbaum J); few of the framers A concluding reflection on

has a discretion: it will refer to of our original copyright legislation

internal context: the Acts would have foreseen the uses to Interpretation Act’s statement that extrinsic materials if, for any reason,

there appears to be value in doing which it is now put in the matter of a marginal note to a section is not inventions. Directing one’s attention part of the Act (s 5(g)) has led to the so.9 to the problems existing at the date view that the marginal note may not of the Act’s passage may, therefore be resorted to for interpretative (b) Some types of extrinsic material give only half the answer. purposes. There are some slender Nevertheless such background dicta in recent years to the effect that Extrinsic materidS fall into several material can be helpful; one this may not be totally inflexible: categories. Some are relatively non- member of the Court of Appeal has, that while marginal notes cannot contentious. Reference is often extra-judicially, said it is control interpretation they can at made to earlier law - common law unfortunate that more counsel do least be “some indication of the and preexisting statutory provisions not use arguments based on main subject with which the section - which the current Act has historical, social and economic deals” (Daganayasi v Minister of replaced. From time to time the factors. (Sir Ivor Richardson (1985) Immigration [1980] 2 NZLR 130 at Courts purport to place limits on 15 VUWLR 46 at 50.) 142 per Cooke J). The headings of the extent to which, and the parts of the Act seem to be more occasions on which, such reference (c) Legislative history rigidly controlled: by the Acts can properly be made; (Eg, Farrell It is in respect of this last category Interpretation Act they “shall not v Alexander [19771 AC 59; Fuller v of extrinsic materials that the most affect the interpretation of the Act” Macleod 119811 1 NZLR 390 at 395 controversial developments have (s 5(f)). That is a difficult injunction per Richardson J); but such taken place. The traditional rules, to observe faithfully. Now that the materials are very often used. long observed in England and Courts seem to be prepared to have Likewise, there is increasing assumed to apply in New Zealand:’ regard to a good deal of extrinsic reference to other constituent parts may be summarised as follows. The material in interpreting Acts, it may of the current legal landscape into Courts in interpreting an Act may


STATUTE LAW

have no regard to changes made to what the lawmakers actually wanted to do so in a case of such national the Bill during its passage through it to mean, rather than to engage in importance. So a bastion has fallen Parliament, nor to the explanatory some form of guesswork: “It is without much argument. The High note which accompanied the better to switch on the light than court, (in Brown & Doherty, below) introduction copy of the Bill. Nor grope in the dark”. (Davis v and even some administrative may they refer at all to the reports Johnson [1979] AC 264 at 276). tribunals, (Application by, Ansett of the Parliamentary Debates on the Morever it is quite unrealistic to NZ, Licensing Control Commission Bill (Hansard). They may refer to assume that such matter can be 343/87,6 Nov 1987) have followed the report of a committee or entirely excluded from suit. commission recommending the consideration; particularly in the In Real Estate House (Broadtop) legislation, but only to discover the case of recent legislation aspects of Ltd v Real Estate Agents Licensing mischief which required to be the Bill’s history may be common Board [1987] 2 NZLR 593, Sir remedied, not to ascertain the knowledge in any event. Robin Cooke referred to the intended effect or meaning of the explanatory note to a Bill, if only legislation proposed. Australian provisions to confirm a conclusion he had

A mixture of reasons lay behind In response to such arguments already reached as to what the Act these ancient rules. Some were Australia has enacted federal meant. In Brown & Doherty v purely practical; that arguments legislation permitting Courts to Whangarei City Council I19881 based on these materials could have regard to a wide range of 2 NZBLC 103, 095. Smellie J unduly prolong the hearing; and extrinsic material, including referred to the changes made by the that the information gained from committee reports, explanatory Select Committee of Parliament to them (particularly the notes and Hansard. Such material clause 15 of the Contractual Parliamentary Debates) could be is admissible to confirm a meaning Remedies Bill; their striking out of unreliable. A constitutional already aimed at, as well as to the remedy of quantum meruit from argument was based on the Bill of resolve ambiguity. (Acts the savings provisions of the Bill was Rights 1688 which provides that Interpretation Act (Cwlth) s 15 AB cogent evidence that they did not proceedings in Parliament are not (added in 1984)) Certain of the State want it to remain as a remedy after to be questioned in any Court or legislatures have enacted similar cancellation of a contract. other place outside Parliament. One legislation. (New South Wales, of the strongest reasons was, quite Victoria and Western Australia.) Interesting questions simply, that the parol evidence rule In New Zealand, our Courts have The change in judicial practice has prohibited direct evidence of the begun the task themselves. In the been rapid and marked. It raises a intention of the framer of a 1980s nearly all types of the number of interesting questions. document:13 the rule excluding previously forbidden materials have legislative history thus stood been referred to. Committee reports (i) How useful have these references alongside the rule excluding direct are frequently cited in modem to legislative history been? evidence of the intentions of judgments: for example cases on the There is a no doubt that in a few contracting parties in construing new contractual legislation contain cases (although so far a very few) their contracts, and of testators in many references, and it is difficult such reference has provided an construing their wills. Less often to resist the conclusion that the answer to the precise problem before articulated, but certainly influential, reports are sometimes looked at to the Court. It did in the Brown & were some policy reasons, the most discern the committee’s intent rather Doherty case (supra) - there the important of them this: if Courts than the mischief they wanted to materials could scarcely have been have no regard to such extrinsic cure!’ (The distinction was always more helpful. Likewise in An materials, they are excluding from hard to draw anyway.) Application by Ansett NZ (supra) consideration the actual intentions There have been several the Licensing Control Commission of the lawmakers; thus, in the last references to Hansard too, most found that in 1980 Parliament had analysis, the Courts themselves have notably in the Marac case, (Marac considered the very question before final control over what the Act Life Assurance Ltd v CIR 119861 it - whether liquor licences could means (see Black-Clawson v 1 NZLR 694) where members of the be granted on domestic air services Papierwerke Waldhof- Court of Appeal cited without - and given a clear negative answer. Aschaffenburg A/G [1975] AC 591 embarrassment from a ministerial But mom often the assistance gained at 629 per Lord Wilberforce.) At a speech in the House, and the Maori from the legislative history is more time when the Courts frequently Council case. (NZ Maori Council v oblique; sometimes it has provided saw themselves as protecting the Attorney-General [1987] no more than historical citizen, this was a most significant 1 NZLR 641) It is perhaps a little background. (For example Re Annie consideration. surprising in view of the long Simpson [1984] 1 NZLR 738.) It is

In recent years, however, these old history of prohibition that their also significant that so far there reasons have become less persuasive, Honours did not think it necessary appears to have been no case in New and there has been growing pressure to justify at more length what they Zealand where reference to the for Courts to use extrinsic materials. were doing. In Mamc Cooke J extrinsic materials did any more The effective operation of the contented himself with saying that than confirm a conclusion already purposive approach to some extent it “would be unduly technical” not tentatively arrived at on other requires it. If an Act is truly to refer to the Minister’s speech, and grounds. ambiguous, or in some other way in Maori Council he said it would Much of the Parliamentary obscure, it may be better to inquire be “pedantic, even irresponsible” not Debates is likely to be irrelevant and


STATUTE LAW

unhelpful. It will be seldom that fundamental values will survive the saying that all available materials assistance is gained from anything new era of resort to legislative should be cited to the Court of in them beyond the Minister’s history just as it has survived the Appeal and the High Court. But the speeches and perhaps the speech of purposive approach. District Court must deal speedily the chairman of the Select with a wide range of matters, and Committee when reporting the Bill (iv) Where does one stop? So far the one can well imagine patience back. The Court of Appeal has New Zealand Courts have had wearing a little thin if arguments already taken the opportunity of regard just to Hansard, committee were to be extended by referring to warning counsel against an reports and the original Bill; Smellie a lot of extrinsic materials. Yet there indiscriminate use of Hansard: it is J for instance has looked at is little to commend a different to be used only when it is helpful, submissions to a select committee to approach to interpretation in and not as a matter of course. find out why changes were made to different Courts in the same system. (Attorney-General v Whangarei a Bill, (Brown & Doherty, supra) Cl City Council [1987] 2 NZLR 150 at including submissions by a 152 per Cooke P) government department. (wells v

Police [1987] 2 NZLR 560) This is 1 The classic criticisms of the early Judges’ (ii) Can legislative history be going right to the heart of the attitude are in Pound (1907) 21 HLR 383

admitted when the meaning of the parliamentary process, and is using and Harlan Stone (1936) 50 HLR 4.

Act is clear? Apparently yes documents which are not as readily 2 A striking recent example is Northern

Milk Ltd v Northland Milk Venders Assn although only to confirm that available to the public as some Inc CA, 22 June 1988, CA 100/88. meaning. There are dicta in both others. In Marac the Court of 3 Ibid per Cooke P.

Mamc (supra) and Bmadtop (supra, Appeal referred to a post-Act Public : Ibid. and see also R v Howard [1987] Information Bulletin by the Inland

A recent example is R v Pratt CA, 9 March 1988, CA 311/87.

2 NZLR 347) that legislative history Revenue Department, something 6 See the article by Sir Ivor Richardson in is not to be used to upset or distort which would have been regarded as (1985) 2 Australian Tax Forum 3. the clear meaning of the words of heresy only a few years earlier. One 7 In Pendergrast v Chapman, High Court

the Act: this would grossly prejudice detects a concern in the profession Auckland 9 Dee 1987 A 1222/83, Wylie

the legitimate reliance of citizens as to where the line is to be drawn: J declined to examine the report of the Contracts and Commercial Law Reform

and their legal advisers. Cooke P in what of ministerial press statements; Committee which preceded the Maori Council (supra, at 659) or departmental memoranda? Contractual Remedies Act 1979. preferred to leave open the question Public availability must surely be a 8 See the famous dictum of Viscount

of whether legislative history can primary requirement. One wonders Simonds in Attorney-General v Prince

ever be used to enable general words whether timing should not be Ernest Augustus of Hanover [1957] AC 436 at 461.

in legislation to be read down. another: there may be an argument 9 The readiness to refer to extrinsic for saying that all that is relevant is materials may vary with the kind of

(iii) What does the Court do if it pre-Act material which can materials: for instance the courts have

does not like what it finds in the reasonably be regarded as having occasionally evinced a reluctance to examine prior updated legislation when

legislative materials? For instance, influenced the legislators in passing the words of a modern consolidation are what does it do if, being disposed the Bill. clear: see below.

to interpret a provision such as a 10 Eg, Taylor v NZ Poultry Board [1984]

privative clause narrowly in favour (v) Is there not a problem of 1 NZLR 394 at 404. See the difference between Mason J and Brennan J in

of the individual, it is referred to a accessibility? Hansard, committee Parkdale v Puxu (1982) 149 CLR 191. passage in the Minister’s speech in reports and introduction and second 11 Eg, Van Gorkum v Attorney General Hansard which clearly indicates a reading copies of Bills are readily [1977] 1 NZLR 535, affd [1978]

contrary view? The Australian enough available in the main 2 NZLR 387; and, in relation to CER,

experience suggests that it will prefer centres. They are not as easy to Dominion Rent A Car v Budget Rent a Car (198712 NZLR 395 at 407 per Cooke

its own interpretation, and will come by in other places. The old P. reject this direct evidence of the exclusionary rules had at least one 12 The earlier New Zealand authority is in legislators’ intention. In R v Bolton advantage: normally the only fact very slender: see in particular

Exparte Beane (1986) 70 ALR 225 relevant material was the legislation, Hamilton Gas Co v Mayor of Hamilton

a majority of the High Court of and all users, wherever they were, (1908) 27 NZLR 1020 at 1020-1031.

13 See, for example, Attorney-Geneml v Earl Australia said that in such a case were in the same situation with ofPowis (1853) Ray 186 at 207 per Wood Hansard is merely an aid, and regard to availability. This argument VC, cited in Kerridge v Girling-Butcher

should not affect what the Court cannot be pressed too far, for [1933] NZLR 646 at 687 per Smith J. Also

decides is the true interpretation of libraries in the main centres are Shrewsbury v Scott (1859) 6 CBNS 1 at 213 per Byles J.

the legislation. Thus, judicial better stocked in many respects. But 14 See for instance Worsdale v Polglase control of interpretation remains. difficulty of access to legislative [1981] 1 NZLR 722 pat 726 per Davison

There are, of course, terrible material may be a factor in deciding CJ; and Young v Hunt [1984] 2 NZLR 80

difficulties of theory in this: does whether reasonable notice ought not at 86 per Holland J.

the case mean that the Courts are to be given by one party if he not, after all, trying to discover the proposes to refer to such materials legislators’ intent? But interpretation in Court. A practice rule to this is a pragmatic business, and effect has been adopted in Australia. consistency of theory has never marked the Court’s approach to it. (vi) Should the same rules apply in The preservation by the Courts of all Courts? There is an argument for


CORRESPONDENCE

Correspondence

Dear Sir,

I am grateful to Mr Dugdale for his complimentary remarks on my book, Statutory Interpretation.- Problems of Communication, in his review in the December issue of the New Zealand Low Journal. However, there is one point on which he either disagrees with my book or has misunderstood it; and the issue involved is so central to an understanding of statutory interpretation, indeed of law in general, that a reply seems justified.

Mr Dugdale writes: “. . . not all problems of statutory interpretation can be diagnosed as those attendant upon divining the purposes of the legislature. It is scarcely appropriate to talk about the intention of the legislature when a statutory rule is applied to something not invented when the Act was passed, or even when it is applied in a circumstance to which it is reasonably clear that the legislature never turned its mind.” In context, it is not clear whether Mr DugdaIe thinks this is a summary of a view I take in the book, or whether he is simply stating his own opinion. Whichever is the case, let me make it clear that this is not my view.

The assumption behind this opinion seems to be that one can not meaningfully consider whether some particular is within the intention of a speaker (or any other communicator) who has used a general expression on some past occasion unless the speaker had that particular in mind at the time the general expression was used. In my opinion that assumption is false.

It is true, of course, that one can not sensibly ask what was the speaker’s intent on the specific question should that particular be included in the general expression as it was meant on the given occasion unless the speaker has thought of that particular, and that question, at the relevant time. But it does not follow that one can not ask whether the particular is within the meaning of the general expression as the speaker intended that expression to be understood. Normally, it is the second that we are concerned with when we ask whether a given particular is within a speaker’s intent. And it is a

general mistake about language to assume that a positive answer to this question can only be given if the speaker had that particular in mind at the time of speaking.

I can not argue fully for this claim here, but something of the force of the argument supporting it can be shown by pointing out that if the application of statutes had to depend on whether the members of the legislature had or had not contemplated a given particular at the time of making a rule this would reduce the process of making and applying statutes to futility. For the terms of a rule are almost always such that they can in principle apply to an indefinitely large number of particulars; and it is simply impossible for the makers of a rule to have contemplated more than a tiny few of this number. So if the fact that no contemplation had been given when a rule was made to whether a particular being considered by an interpreter should be included within the rule meant that the interpreter was free from any need to consider the intent of those who made the rule, then interpreters would almost always be free of this concern.

I have put the argument above in terms of the contemplation of particulars, but it ought to be clear that the same argument applies equally to the contemplation of sub- classes of case potentially within any general class to which a rule applies. Any general class can always be broken up into an indefinitely large number of sub-classes (by use, for instance, of different systems of sub- classification); and the user of a general expression can never have contemplated more than a tiny fraction of these specifically. Thus any particular case could always be found to fall within some sub-class of case the inclusion of which within a general class referred to in a rule had not been specifically contemplated by those who made it.

The assumption about language just criticised is very common. In a passage quoted in my book (26) Ion Fuller labels the view about meaning which it involves “nominalism”. This

view is ezxtensively criticised in the book, both within this passage and in the general text. (See 15-19,25-29, and the implicit criticism of the cases included on 32-48.)

I should add that in my opinion nothing above is affected by the following which 1 also believe: sometimes it is relevant to interpretation (understood in a broad sense) in the ordinary use of language that we can reasonably believe a speaker would have excluded from an utterance a particular case that is within his/her intended meaning if she/he had thought of it at the relevant time, and sometimes this ought to be relevant in statutory interpretation also. (See chapter 7.) Nor is it affected by the fact that there are admittedly special difficulties in talking of the intention of a collegiate body such as a legislature that do not arise in the case of a single individual.

I rather hope that Mr Dugdale, with his sense that Judges in New Zealand are at present not as much subject to the intellectual constraints of law as they ought to be, may find these points of particular interest.

Jim Evans

The Citizen and the Law The ordinary citizen may dislike lawyers but also venerates the law. The veneration extends to form. Questioned or questionnaired, the citizen might well plump for law that is “immediately comprehensible” - but is unlikely to have much expectation of that outcome or to have weighed up the implications. The public, it is suggested, see law (and medicine) as pursuits and institutions rather apart from ordinary life, and the law is not necessarily less respected for being a trifle remote No less than the lawyer, the citizen may not really want law that reads like an evening tabloid and would appear to be conditioned to a fairly traditional approach.

Maurice Kelly Law Institute Journal

October 1988


MINING LAW

Private mineral title: Necessary reservations about vesting minerals in surface owners

By Barry Barton, a former New Zealand practitioner now a Research Associate with the Canadian Institute of Resources Law, the University of Calgary Alberta.

This article is, in part a response to an earlier article published at [I9881 NZLJ 41 by Mr Peter Ackroyd on the subject of mining legislation and its possible reform. Mr Barton criticises the suggested transfer from the Crown of mineral rights, to the surface landowner. He contends that the change would not deliver the benefits that are promised for it, and that it is likely to produce harmful results in complicating title to minerals to the extent that mining activity will be impaired

New Zealand’s mining law has been from the perspective of the overall 1945 s 8 and the Petroleum Act 1937 in an unsettled state through the national interest. s 3.) How, conceptually, can oil and 1980s. Mining law reform is now In contrast, the rationale for the gas be treated differently from part of a more general review of the policy of reserving mineral rights to hardrock minerals in this respect? country’s resources management the Crown is analysed in historical As seems to be a necessary

legislation. My purpose in this terms only. Ackroyd’s conclusion (at corollary, is the Crown to be article is to consider one component 45) is that “[i]n any debate over the prevented from severing the minerals of the legal framework; the pattern management of New Zealand’s and the surface in future of Crown and freehold mineral mineral resources the transactions? ownership. Mineral ownership, or appropriateness of severed rights to title, has recently been discussed in minerals and land must be critically Ownership of minerals this Journal by Mr Peter Ackroyd evaluated against the potential There are useful lessons to be (“Mining legislation and the advantages of combined rights.” learned about the pattern of mineral reservation of mineral resources in In responding to this invitation, ownership by looking back into the New Zealand” [1988] NZLJ 41), and one meets initial difficulties in past and then, with all appropriate

I shall express reservations about his ascertaining the specific character of care, into the future, the starting proposition that Crown mineral title the proposal for “combined rights”. point is, of course, the principle that should be vested in individual The Land Act 1948 and the Mining as part of the soil minerals are landowners. Act 1971 would be amended so that owned by the owner of the surface;

The case against the separation future Crown grants will include cuius est solum eius est usque ad of rights to minerals from rights to minerals, but of course Crown coelos et ad inferos. However the the surface, as put by Ackroyd, is grants are not issued as frequently simplicity of that principle is

couched largely in terms of as they once were. The suggestion deceptive. As a guide to the realities economic inefficiency; the present seems to be that there should be of the situation virtually anywhere allocation procedure confers both some sort of vesting of Crown- it applies, it is more significant for rights to mine and rights of access owned minerals in Private the exceptions to it than as an to the surface in an administrative landowners, presumably by accurate picture in itself. fashion, so that the value of the legislation. The immediate question If we take the common law resource is not indicated by price, that poses itself is, will landowners origins, we find that at all stages of making it difficult to balance the get these rights for free ? Unless English history the important value of mining against the values these Crown resources are to be mineral resources were being severed of other affected interests. If treated as if they are valueless, how from the surface. The Crown’s minerals were vested in the surface is the price going to be fixed, right assertion of rights to gold and silver owner, the argument goes, there across the country? How will the predated the Case of Mines (1568) would be benefits in the facilitation holdings of the state-owned 1 Plowd 310, 75 ER 472, by some of contractual negotiations between enterprises be dealt with? Which centuries! Areas where base metals landowners and miners, the removal minerals are to be included - the were of value were subject to local of problems of access, and the royal minerals (gold and silver), customary law under which protection of the surface owner’s coal, uranium, oil and gas? (The minerals did not form part of the interest. Resources would be Crown owns uranium and Oil and surface hereditament. The best allocated to their most valued use gas under the Atomic Energy Act known of these local codes was that


MINING LAW

of the stannaries of Cornwall and Devon, but there were others in the Peak District, Alston Moor and the Forest of Dean.’ Moreover, as the enclosure movement gradually modernised land tenure, mineral rights were ordinarily - if not invariably - stipulated for by the lord of the manor, effecting a severance: 4 Halsbury (1st) 573. In more modern times in England, coal and oil and gas have been vested in the Crown by force of statute: Coal Act 1938, Coal Industry Nationalisation Act 1946, Petroleum (Production) Act 1934.

The policy of reserving minerals from Crown grants has been one of fundamental importance to natural resources management. It is important not just in New Zealand but in fact throughout North America and what was, at the time it emerged, in the last decades of the nineteenth century, the British Empire3 For all its importance, its origins and evolution are poorly understood, and Ackroyd’s research into its legislative history in New Zealand is useful. However the nineteenth century arguments in favour of reservation are not the only arguments that need to be addressed now. In this respect and in respect of the royal prerogative to gold and silver, it is a fallacy to imply that if the old reasons have gone there are therefore no current reasons. In law more than most areas, many currently useful institutions came into existence for very odd reasons. The main inference that should be drawn from history is that severed or reserved mineral title is perfectly normal and not a departure from any golden rule.

Canadian comparison ‘Iwo Canadian provinces with which I am familiar, Alberta and British Columbia, provide a useful comparison for the purpose of forecasting the effects of greater freehold mineral title in New Zealand. Their legal background and political tradition is similar to New Zealand’s. Private ownership of minerals occurs in both provinces although it is greatly outweighed by Crown ownership; in Alberta the proportion is lo%, and in British Columbia it is much less.’ However, with active mineral resources sectors, they have a long familiarity with dealings in freehold minerals.

The first lesson from this comparison is that mineral title becomes fragmented over time. Dreams of financial windfall, assisted by considerable legal ingenuity, have resulted in transactions splitting private mineral interests in many different ways. Undivided shares in minerals can result from family transactions. Farming families seem to like to hold onto the mineral rights even if the farm is being sold, and on the death of the owner the rights are often divided and transmitted to the next generation. It became necessary in Alberta to forbid the registration under the Tbrrens system of an undivided fractional interest in minerals smaller than one-twentieth: Land Titles Act, RSA 1980 c G5 s 55. Oil and gas royalty trust agreements, reputedly creating undivided interests in minerals, have recently been put into uncertainty by Guaranty 7lust Co of Canada v Hetherington [1987] 3 WWR 316. Nor is the creation of undivided interests the only type of fragmentation to be observed. Division into small parcels is a problem especially in early-settled parts of British Columbia. There is also division by substances; in parts of Vancouver Island that were once lands of the Esquimalt and Nanaimo Railway, gold rights were sold to A, silver to B, and base metals have gone to C. Most recently, the Alberta Land Titles Office is seeing attempts to divide mineral holdings by depth or geological zones.

As well as legal ingenuity, carelessness and neglect over the years can be the cause of complexity, with problems such as untraceable owners and titles clouded by old instruments of uncertain effect. Especially in British Columbia this fragmentation has led to major problems. The difficulty of assembling mineral rights has made exploration almost impossible in certain areas. An example is British Columbia Buildings Corp v Anderson (1983) 46 BCLR 292. One response has been the Hztroleum and Natural Gas (Vancouver Island Railway Lands) Act SBC 1986 c 21 vesting mineral title in the Crown in order to facilitate the drilling of two exploration wells. The province also seeks to acquire inactive private mineral rights by imposing a tax on

them at a level sufficiently high to encourage the owners to surrender them to the Crown: Mineral Land l&x Act RSBC 1979 c 260.

This tendency to fragmentation, therefore, is a disadvantage of private mineral ownership that can be identified in a comparison with other jurisdictions. It represents an obstacle to economic activity that cannot be justified on policy grounds, and threatens increased burdens on the public purse in the government’s own land assembly needs and in the workload of the Land Transfer Office.

Not being in a position to tackle the whole range of concerns confronting the mining law reform, I shall merely suggest what seem to be the more important title issues that reform efforts could usefully pursue: (a) The restoration of some measure of integrity to the Land Transfer Office register in respect of minerals. Mineral title should be apparent from the certificate of title and should not require an investigation of statutes in force at the time the land was alienated by the Crown.’ (b) The removal of anomalies that blur the distinction between private and Crown minerals. The most notorious of these is section 37, which allows private mineral rights in effect to be expropriated for the benefit of a mineral operator.

Conflict between surface owners and mineral operators The second lesson that comes out of this comparison is that freehold mineral rights do not stay in the hands of the owner of the surface. Just as the Crown may reserve mineral rights, so can private owners, and as mentioned above they often do so. Although hard statistics are hard to come by, it is thought that as a result of such transactions the majority of freehold minerals in Alberta are held by persons other than the surface owners. Privately-owned mineral rights in British Columbia are similarly likely to be in the hands of persons who do not own the surface, although for a variety of different reasons including a different legislative history.

There is, then, nothing in the abolition of the Crown reservation and the “privatisation” of minerals that would preserve “combined” title. There is evidence that


MINING LAW

landowners in active mineral areas of neighbouring landowners may plans and their real impact, in order tend to separate their surface and prompt the response that an owner to enter into negotiations on an mineral estates. Only by prohibiting should have considered mineral title equal footing. Then there are that category of transaction and and surface access before deciding contracting costs, ie the costs of the curtailing ownership rights could how much to offer to purchase the negotiations themselves. For a “combined” title be preserved. Once property, and should remember that miner only interested in large-scale the surface and minerals are when mining starts. No matter how exploration, wanting access to a separated, landowners are faced proper that may be legally, it is number of properties, these costs with mineral owners determined to unlikely to placate many may easily be too large to permit develop their mineral properties. landowners, or to stop surface rights this kind of reconnaissance. Thirdly The potential for conflict is disputes from becoming very bitter.” there are the costs of policing or therefore still present. Indeed the However sunny may be the enforcement as another kind of conflict is likely to be worse under picture that is painted for transaction cost. The expense of the common law rules that would “combined” rights in contrast to this sustained litigation to enforce rights govern. one, it is sorely illusory. The is the most obvious kind.

In a nutshell, the common law freedom of contract in which it puts We also search in vain for any provides that surface-mineral so much faith will start to fade as mention of the holdout problem, disputes are governed by the terms soon as landowners start to reserve which can occur if a mineral of the instrument that severed the their mineral rights. operator has no alternative but to minerals from the rest of the land. Moreover, even in the simplified deal with one surface owner; the Typically the instrument is a fact situation that Ackroyd does final owner, for example, who must conveyance that reserved or excepted address (the case of a landowner be negotiated with in order to all mines and minerals on sale of the who holds the underlying mineral proceed with a project that is land. If the instrument is silent on rights, treating with a mineral already far advanced. (See Posner, a right of surface access for the operator), the argument for An Economic Analysis of Law, mineral proprietor, the law will combined rights is defective. (3 ed) Boston, Little Brown, 1986, imply that right, allowing the miner “[Wlhere landowners do allow p 49.) to use the surface in any way (with mining to proceed [says Ackroyd at Nor do we find any or without vehicles, roads and p 421 it can be concluded that acknowledgment that apart from buildings) that is reasonable or miners adequately compensate efficiency there is the question of necessary for the purpose of landowners for their costs. distribution or equity. A mechanism mining: Borys v Canadian Rzcific Ownership of minerals by can be efficient, but it may not yield Railway [1953] AC 217 at 227; Dand landowners thereby allows conflicts a distribution of costs and benefits v Kingscote (1840) 6 M&W, of interest between miners and that we consider to be a just one. 151 ER 370. The right is landowners to be reconciled Such judgments lie not so much in constrained by an obligation not to privately and in this way resources economic analysis as in the social cause subsidence unless can be allocated to their most valued consensus that is expressed, for unequivocally authorised: use. By definition any exchanges example, in legislative policy. Butterknowle Colliery Co v Bishop that are entered into voluntarily Auckland Industrial Co-operative make the parties involved better Current economic thinking Co [1906] AC 305. However there is off.” These problems lie at the heart of no blanket right to compensation; current thinking in economics, and unless the instrument of severance Free market appeal in natural resource economics in provides for it, compensation is not This oversimplified appeal to the particular.’ They receive extensive payable for the lawful exercise of free market omits anything in discussion in the very sources that surface rights. economic analysis that would Ackroyd cites (Demsetz, “The

detract from it. Ackroyd does not exchange and enforcement of Potential inconsistency mention the possibility of market property rights” (1964) 7 J Law & When so much depends on the exact failure, where imperfections in the Economics 11; Block, “Cease and wording of the instrument of market mechanism lead to Demsetz on private property rights” severance, the potential for unjust situations where economically (1977) 1 JLibertarian Studies 111). and inconsistent results is self- efficient results are not achieved. He cannot disregard them when evident. Documents are not always Such imperfections (externalities they are so central to his advocacy as well drafted as they should be. and oligopoly are two examples) of a market mechanism. His failure The simple clauses that appeared prevent the mechanism of voluntary to address them exposes his adequate when mineral exploration exchanges from allocating resources argument as superficial and even in the area seemed to be a remote to their most valued use. misleading. contingency may be grossly No mention is made of A more useful course of reform inadequate decades later when transaction costs, which may for surface-mineral disputes would: exploration begins in earnest. The prevent the parties from negotiating (a) eliminate the unnecessary provisions will differ, even if only voluntary exchanges. Among confusion that surrounds surface slightly, from one parcel of land to transaction costs that obviously rights to work gold and silver; the next, and in each case a title need to be considered here are (b) eliminate the artificial search will be necessary to ascertain information costs, eg the costs of a definitions of Crown and private them. A patchwork quilt is what landowner in acquiring enough land; results. The differences in the rights information about the miner, his (c) reduce the multiplicity of


MINING LAW

compensation provisions;’ impacts of mining, except where the Royalties and economic rent (d) create uniform rules for issues (such as reclamation) are A second important benefit deriving objection rights for landowners in particular to mining. from Crown ownership is the power addition to the general rights for to reap rewards through royalties public participation; designed to appropriate the (e) ensure that landowners receive Policy issues “economic rent” that can be notice before any mineral entry; and The proposal to promote available from resource extraction (f) ensure that surface entry is “combined” rights raises several without stifling any useful private governed by a set of rules that is issues that its advocates have yet to sector activity. The mining industry clear, reasonably consistent, and address. Some are simply the logical accepts (or does not vigorously swift to resolve disputes. implications of the notion. For one, oppose) the prerogative of the

the proposal could not be made owner of the resource to collect this Mining and the environment effective unless the Crown and its rent in a royalty that is a type of A central component of legislation agencies are prohibited from payment for the grant of rights to concerning mining is a mechanism severing the minerals and surface in the resource. Taxation can be used for the proper weighing of mineral future transactions; otherwise the to appropriate the rent, but it is development benefits and policy of reserving minerals could usually difficult and controversial. environmental values. return by the back door. But this Why this rent should not be Environmental values, it should be denies the Crown and its agencies, channelled into the community carefully noted, are not consonant still the largest landowners in the through the state is something that with the values that a landowner country, vital flexibility in dealing has yet to be explained. The fact will seek to protect. In the capacity with minerals. We have noted that that at present there is no royalty of property owner an individual has private owners would have to be payable on gold and silver is scarcely relatively narrow and specific under a similar prohibition to keep a reason. interests, while the environmental titles “combined”. Another issue is From here we are led to ask why interests of society as a whole are the extent of the real contribution (as is apparently being suggested) very broad. For example, surface of “combined” title. If rules will be the Crown should transfer assets, in

owners are likely to be very needed for the disposition of the form of mineral rights, to

concerned with soils and mineral rights on lands administered landowners without payment. Some

revegetation, but less concerned by various ministries and the state- excuse for not discussing this may

with water quality or the creation of owned enterprises, will we not still be sought in the fact that mineral

new access roads - two of the more need to have a full mining statute resources (other than oil and gas)

serious consequences of mineral on the books anyway? have not made a significant

activity. To put the matter in more On a broader policy level, the contribution to the New Zealand

general terms, ownership issues and legitimacy of Crown ownership economy for many years. But the

the allocation of rights between needs to receive attention. As I have oversight is still an astonishing one surface owners and mineral owners ponted out, a major state interest in There is either an assumption that are different from environmental mining is entirely normal from a the Crown’s mineral rights are issues. historical perspective. It is an worthless, or an assumption that it

We should therefore not expect equally normal feature in any is proper to give the country’s changes to the Crown reservation of comparative review. Certainly resources away for free. minerals to have any great relevance nothing has happened in Canada or to environmental issues. In the United States to cause Distributional question particular, we need not put much policymakers to question the There is also a distributional or store in sweeping claims that many institution of government ownership equity question to be answered. if not all of the major problems in of resources. New South Wales has Why should those New Zealanders mining legislation are related to the moved in the Coal Acquisition Act fortunate enough to own land be separation of rights to minerals 1981 toward a larger ownership role singled out to have the benefit of from rights to land. for the Crown. Public ownership this distribution of Crown assets?

Rather, the challenge is surely to brings with it two important Is there some special social rationale devise a resources and benefits. The first is control. A that justifies this uneven pattern of environmental regime that will allow government that owns a resource distribution? This question will still all values, commercial and has much greater flexibility in have to answered even if some ecological, to be taken into account managing it than one that does not. mechanism can be devised to fix a without attaching any preconceived An owner, for example, can choose purchase price for the mining rights; weighting to them. For mining this when and where to allow its landowners will presumably be the means ridding the legislation of resources to be developed, and can only group able to make the what now (since 1981 at least) seem impose terms and conditions when purchases. like vestiges of the priority that it disposes of its property. A Finally, we should think through mining once enjoyed over all other government can always impose its the implications for Maori interests land uses. Mining in national parks will on private owners by legislative of this proposal for a major and in areas of privately-owned measures, but there are limits on disposition of Crown land and minerals especially stand out. It also what interference with private rights resources. Would it not reduce the implies that ordinary environmental will be acceptable in political and ability of the Crown to fulfil any regulation is to be the primary legal terms, both nationally and obligations that the Crown may be implement for the control of the internationally. found to have by reason of


aboriginal title or the Treaty of surface-mineral disputes a game of Waitangi?’ The recent lessons of the chance. It shows no relevance to Muori Council case [1987] many of the key issues in the review. 1 NZLR 641 and the Muriwhenua It makes no contribution to the claim are very clear, both politically framework that is necessary for the and legally. While the Courts and evaluation of the environmental the Waitangi Tribunal have yet to impact of resource development. 0 consider minerals, the transfer of mineral resources to private hands would raise much the same issues as those cases. Maori claimants would ’ be sure to argue that their rights are not to be confined to the Maori use of minerals at the time of the signing of the Treaty or any other point in history.

2

Conclusion I have sought to demonstrate that the review of New Zealand’s mining 3 law is not assisted by pursuing the sterile idea of a transfer of Crown mineral title to private landowners. It is an idea that is not able to deliver the benefits that are promised for it. It is likely to 4 produce harmful results. Notably, it will complicate mineral title to such an extent that mineral activity will be impaired - though not in any pattern that will reflect environmental sensitivity. It will, over time, make the resolution of 5

See G R Lewis, The stannariw a study of the English tin miner, Cambridge, Harvard U P, 1908, pp 74-78, and A Raistrick and B Jennings, A history of lead mining in the Pennines, London, Longman, 1965, p 109. Lewis, and Raistrick and Jennings, supra; J Walton, “The medieval mines of Alston” nuns Cumb & West Antiq and Archaeol Sot, v 45 NS (1946) 22; H G Nicholls, The Forest of Dean, London, John Murray, 1858. Thompson, “Basic contrasts between petroleum land policies of Canada and the United States” (1964) 36 (I Co/o L Rev 187; H V Nelles, The politics of development, Toronto, Macmillan, 1974; J R S Forbes and A G Lang, Australian mining andpettoleum laws (2 ed) Sydney. Butterworths, 1987, ch 2. D E Lewis and A R Thompson, Canadian Oil and Gas, Toronto, Butterworths, 1954 para 29; American Law of Mining (2 ed) New York, Matthew Bender, 1984, ch 213. Only about 10% of land in Canada is privately owned, and the percentage for mineral rights will be much lower. See C A N Beyer, “The ownership of

minerals in New Zealand” in E Kelly (ed) Mineral and petroleum development in New Zealand the commercial fmmework, Wellington, Energy and Natural Resources Law Assn, 1987, p 53; G W Hinde, D W McMorland and P B A Sim. Lund Law, Wellington, Butterworths, ’ 1978. p 1174; J C-Parcel& “Miller -v The Minister of Mines” 119611 NZLJ 263 and _ _ 280. In Alberta and British Columbia the solution has been to sweep this confusion and inconsistency aside by declaring that, notwithstanding the instrument of severance, a mineral operator can have surface rights only under a separate agreement with the landowner or under the authority of a tribunal which also fixes compensation; B J Barton and B Roulston, A guide to appearing before the Surface Rights Board of Alberta, Calgary, Canadian Institute of Resources Law, 1985. There is an extensive body of scholarship that applies ideas from economics, and especially from the analysis of property rights, to resources and environmental problems; see, for example, P R Portney (ed), Current issues in natuml resource poltcy, Resources for the Future, Washington DC, 1982, and A Scott (ed), Progress in natuml resource economics, Oxford, Clarendon Press, 1985. Criticised some time ago by A R Thompson, “Canadian trends in mining and petroleum legislation: some New Zealand comparisons” in Australasian Mining Symposium, 1970. See McHugh, “The legal basis for Maori claims against the Crown” (1988) 18 VlJWLRev 1.


COUKrS

Privy Council appeals

By Elizabeth Garrett, MA, LLM (Hons), Lecturer, Department of Commercial Law, School of Commerce, the University of Auckland

This article is a response to the article by Charles Cato published last year at [I9881 NZLJ 110. Elizabeth Garrett looks particularly at the implications of the recent Maori Council case. She sees the result as just, but is critical of the way in which it was reached. She suggests, respectjidly, that judgments of the New Zealand Court of Appeal are of inconsistent quality. She accordingly sees a continuing need for the Privy Council as the jmal Court for appeals.

Charles Cato, “Privy Council: The quashing of the offending order or plainti from the danger which has Takaro Properties case” [1988] NZLJ legislation and the restoration of the resulted, a duty of care arises; where 110 advocates the abolition of appeals to litigant’s impugned right. The remedy the purpose is otherwise, a duty does the Privy Council. This article argues available in the tort of negligence is not arise. strongly for their retention. The damages. The plaintiff is compensated Thus, the Court of Appeal affirmed argument is two pronged. The first part at private law for a harm generally the award of damages to the plaintiff in endorses the Privy Council decision in effected by another individual. Brown v Heathcote County Council Rowling v Takaro Properties [1988] 1 The recent spate of cases in the [1986] 1 NZLR 76, because per Cooke All ER 163. In so doing it isolates the Common Law jurisdictions, the P: juristic basis of the causes of action, precursor of which is Anns v London judicial review and the tort of Borough ofMerton 119781 AC 728, have The English cases proceed on a negligence, the distinction between witnessed the extension of the tort of context of the functions of local which the adoption of Cato’s argument negligence to cases where a plaintiff authorities under Public Health would blur. The second part deals with has suffered injury as a result of the Acts. In New Zealand thefunction of the role of equity in this jurisdiction. negligent exercise of a power conferred local authorities regarding the The focus here is the New Zealand by statute. This extension has been subdivision and development of land Court of Appeal’s judgment in Nav accompanied by a restriction in the have to be considered in the light of Zealand Maori Council v types of relationship wherein the

remedy of damages for a harm suffered much wider scope . . . . Local

Attorney-General (1987) 6 NZAR 353 authorities whether their functions where the application of equitable by an individual, whether are

independently or in respect of powers multiple or special, are

principles, albeit culminating in a just result in the particular circumstances conferred by statute, is available.

concerned generally with matters

has effected not only a rewriting of the Cato argues that damages would going well beyond the range of

Treaty but also vested law-making have been an appropriate remedy in personal health and safety; the

in a Government which Takaro because delay caused the preservation of community

powers introduced a Bill of Rights. Thus plaintiff loss. He acknowledges that

buildings and living standards,

Bastion Point was returned to the Ngati though such relief would be equivalent property values and amenities is

Whatua not by Parliament nor, this to the tort of negligence, recovery pa* of their proper sphere.

time, by the Court, but by the would not entail any further claim in (Emphasis added)

Government (New Zealand Herald, that tort. Saturday, July 2, 1988.) While the issue of causation was not It is noted that the decision was

necessary of determination by the affirmed by the Privy Council: Brown Privy Council, the history of the case v Heathcote County Council [1987] 1

Fart1 sufficiently reveals that the cause of NZLR 721, Lord Templeman merely The thrust of Cato’s argument is that in loss was far from clear cut. recording Cooke P’s observation in exceptional circumstances damages The decision in Takaro is absolutely terms of on whom the duty to should be an appropriate remedy where in accord both with Anns and the cases compensate should lie.) an applicant has suffered as a result of following it. It is submitted that the In E&at-o, Lord Keith looked for the ministerial error. The effect of the sufficient relationship of proximity of purpose of the legislation: advocated remedy with respect blurs neighbourhood necessary of the distinction as to the juristic basis of establishment in cases where Again, it is not to be forgotten that judicial review and the tort of legislation falls to be construed lies in the Minister in exercising his negligence. the specificity of the purpose of the statutory discretion, is acting

The remedy provided by judicial legislation. Where the purpose of the essentially as a guardian of the review, a public law remedy, is the legislation is the safeguarding of the public interest; in the present case,

--


for example, he was acting under legislation enacted not for the benefit of applicants for consent to share issues butfir the protection of the community alone. (Emphasis added)

The purpose of Regulation 3 of the Capital Issues Overseas Regulations 1965 was found in s 28(l) of the Reserve Bank of New Zealand Act 1964. The relevant words

for the purpose of maintaining in the public interest the credit, overseas resources or development of New Zealand

were those emphasised. Because these words were “expressed disjunctively” and were “not all the same in character”, they could not be limited by the remaining words in the section:

transactions affecting or likely to affect at any time the overseas resources of New Zealand.

These words limited the transactions subject to control; the earlier, the purpose of the control. In the event there had been no breach of the assumed duty of care.

Meates v Attorney-General [1983] NZLR 308 While Cato relies on Meates to support his argument, it is respectfully submitted that that case illustrates the quintessential distinction between the two causes of action. In Meates, a duty of care was declared per totam curiam to exist. Ministers of the Crown, holding themselves out as having special knowledge and authority in their particular field, had given speci$c advice regarding the application of Government policy in given cases in circumstances where they should have known their advice would be relied on. The sufficient relationship of proximity or neighbourhood was established. Damage to the shareholders in the event of ministerial carelessness was reasonably foreseeable.

Tipping J appeared to find the duty of care in the trouble and expense involved in offering tenders. But surely the sufficient relationship of proximity or neighbourhood lay in the fact that the plaintiff was the existing contractor.

Part II The Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 test is contractual in so far as reliance and knowledge need to be established. The common law contractual element dominates this part which sees the decision in Maori Council, attained by a novel application of equitable principles, as contrary both to the words and the wairua of the Treaty of Waitangi .

The respondent in Rzkaro, on the other hand, was in the position of a mere applicant. Like any other member of the public engaged in a business venture requiring the consent of the Minister of Finance, he requested the Minister to exercise his discretion in his favour. Had he been successful he would have been granted a right, in no sense could he be said, as a mere

The discussion which ensues is again two-pronged. The first section deals with the Treaty of Waitangi from a common law contractual point of view; the second with the judgment in Maori Council which is unacceptable in so far as it rests on the confused application of equitable doctrines.

The Treaty of Waitangi It is submitted that the Articles of the Treaty demonstrate the fact of the acquisition of the territory and the legal consequences of that acquisition. Article I can be read therefore as a valid

applicant for a right to have entered into any sort of relationship with the Minister.

The award of damages in the former reflects the specificity of a relationship the basic components of which are knowledge and trust. The advocated blurring of the distinction would compensate a mere applicant. The applicant/almost contractual distinction can also explain Tipping J’s decision in Ritchies Transport Holdings Ltd v Education Board for the District of Otago (Unrep, High Court, Dunedin, 10 December 1987 CP 96187) not to strike out a statement of claim on the ground that it disclosed no reasonable cause of action.

Andrew Beck, “New actions in Negligence and Contractual Mistake” [1988] NZLJ 184 opines:

The argument here seems to have been that because the defendant wrote to the plaintiff, advising it of the tendering exercise, a duty arose not to mislead. The defendant was negligent in not drawing the plaintiffs attention to the closing time . . .

cession of sovereignty at international law. In so far as Article II, on the one hand, guarantees Maori the full exclusive undisturbed possession of their lands, and on the other, makes provision for the doctrine of pre- emption, a concept indisputably without the customs of Maori, Article II can be construed, along with the necessary evidence of the intention of the British Government at the relevant time, as the recognition of the Treaty at municipal law. This, it is submitted, is the principle from Attorney-Generalfor Canada v Attorney-Generalfor Ontario [1937] AC 326, 347-348 where Lord Atkin for the Privy Council stated:

It is essential to keep in mind the distinction between i) the formation and ii) the peqormance of the obligations constituted by a treaty, using that word as comprising an agreement between two or more sovereign states. Within the British Empire there is a well established rule that the making of a treaty is an executive act, while the pe$ormance of its obligations, if they entail alteration of the existing law, requires legislative action. (Emphasis added)

Again for the Privy Council, Lord Davey in Nireaha Tamaki v Baker [1901] AC 561, 579 stated a preference for the legislative rather than the mere common law expression of the doctrine of pre-emption. The consequence of the recognition at municipal law is the legal validity at municipal law of the guaranteed full exclusive and undisturbed possession. To apply the contractual analogy, the requirement of recognition at municipal law of a cession at international law constitutes the acceptance of the offer, the invitation to treat at international law. A binding contract ensues whichever route is taken. Article III can now be construed as the consideration for the promise.

New Zealand Maori Council v Attorney-General The case is first analysed. A critique follows.

The Court of Appeal decision commenced using the approach advocated in the Bill of Rights (a White Paper, Govt Printer 1985) in respect of the interpretation of the Treaty:

. it should not be approached from the austerity of tabulated legalism. (Emphasis added)

100 NEW ZEALAND LAW JOURNAL - MARCH 1YYS

COURT8

The negative emphasised permitted the “broad” used in the context of the disadvantage of the subservient Court to proceed to discover the following paragraph from the Motunui partner; the consideration, though principles and to apply them rather Report (Wai 6, March 1983), cited in stated not to be “one sided”, expressed than the literal words. Besides, such an the same paragraph of the White Paper in terms of reasonableness and duty, approach was in accord with the oral (op tit). assumes and assures loyalty to the character of Maori tradition and dominant partner. culture. The approach was further The Treaty was more than an

justified by the fact that the affirmation of existing right. It was Conclusion sophisticated society for whose needs not intended to merely fossilize a The judgments of the New Zealand the State-Owned Enterprises Act was status quo, but to provide a direction

for future growth and development. Court of Appeal, it is respectfully

devised could not have been foreseen by the signatories to the Treaty of The broad and general nature of its

submitted, are of inconsistent quality. Julie Maxton, the current editor of

Waitangi . words indicates that it was not Neville ‘s Wills, Trusts and The conflict occasioned by the basic intended as a finite contract but as Administration (1985), 52 et seq, draws

terms of the bargain mandated the the foundation for a developing a clear distinction between constructive viewing of the Treaty as an embryo social contract. (Emphasis added) and resultant trusts. In Hayward v rather than a fully developed and Giordani [I9831 NZLR 140, 153 the integrated set of ideas. Partnership

Because the Treaty was seen to While the basis of a partnership is Court of Appeal per McMullin J demonstrated a clear willingness to

signify a partnership between the contractual, the partnership created by apply the more liberal constructive races, the issue was the identification the discovery of the principles effects a trust to parties in a de facto relationship of the steps to be taken by the Crown, rewriting of the Treaty with the Crown despite the more strict adherence to the one partner, acting with the utmost as dominant partner and Maori, distinction in the United Kingdom. good faith towards the Maori partner, to subservient. The “partnership” is In her review of Day v Mead [1987] ensure that the powers in the State- neither equal nor contractual.

The subtle change in the status of the 2 NZLR 443 reported in [1988] Recent Owned Enterprises Act were not used Law 148, Margaret Vennell states: inconsistently with the principles of the Maori partner, imbued with the

Treaty. capacity to cede sovereignty at Amongst academics at least there is The relationship between the Treaty international law, has denied Maori the

responsibilities benefit of the contract legally binding a growing tendency to eschew the

partners created more traditional boundaries of analogous to fiduciary duties whereby on acceptance, recognition at contract, tort and equity and rather the Crown had a duty actively to protect municipal law. The benefit of the to treat them as part of the wider law the people in the use of their lands and contract denied Maori in the Maori of obligations (see Tettenborn - waters to the fullest extent possible. Council case was the promise The Law of Obligations (1985)).

contained in Article II of the Treaty of

Critique Waitangi; the guarantee of the full While Somers J expressed the modern There are two aspects to the Court of exclusive and undisturbed possession law of obligations in terms of the Appeal’s decision and these will be of their lands. common law and equity as being “set dealt with in turn. Each will be dealt upon the same course”, His Honour with under a separate heading: Summary was careful to qualify this broad principles, and partnership. While the uberrimae fidei doctrine statement. The obligations in respect of

does apply to partnerships, the doctrine disclosure, the use of confidential Principles requires disclosure and an accounting information and want of care are The approach taken by the Court of of pro$ts. A fiduciary obligation is particular instances of duties imposed Appeal - “not one of tabulated generally imposed where one of the. by the circumstances in which each legalism”, while advocated in the Bill of parties is inferior to the Other. In MaOn’ party stands to the Other.

Rights, op tit, did not proceed via the Council, this curious admixture of With respect, that qualification is

route indicated by the White Paper. The Principles produces these results inconsistent with the decision in Maori

White Paper appears to have intended which, with respect, are impermissible Council. The constant in the equation is

the application of s 5(d) of the Acts factually and legally: the relationship of the parties; the

Interpretation Act to precisely this variant, the circumstances. Whether or

situation. Paragraph 10.41 reads: redress would be granted for past not capable of expression in equitable grievances unless there are grounds terms, the principles of the Treaty were

Paragraph 2 declares that the Treaty justifying a reasonable Treaty express, their application dependent on

of Waitangi is to be regarded as partner in withholding it; the circumstances as they arose.

always speaking and shall be Cato’s argument assumes that the

applied to circumstances as they the transfer of an aSset was debate is no longer whether or not

arise so effect may be given to its permissible without the necessity of appeals to the Privy Council should be

spirit and true intent. (Emphasis a $nding of fact in each case; abolished. It is whether or not there

added) should be a substitute. The assumption

the Crown’s duty was to protect the appears to lie in the expression of

The words emphasized leave no doubt people in the use of their lands to the opinion of the Minister of Justice that

that the principles were to be applied, fullest extent possible. the time has come to abolish appeals to

not discovered, and the pn’nciples were the Privy Council. The time is said to

to be applied to circumstances as they In brief, the partnership is unequal; the be this Parliamentary term.

arise. This is the relevance of the word fiduciary obligation works to the continued on p 111


LAW AND POLITICS

Election Manifesto Promises: the law and politics By J L Caldwell, Senior Lecturer in Law, University of Canterbury

At the recent New Zealand Labour Party Conference the leadership of the Labour Government entered into an “accord” with the non-Parliamentary Labour Party, whereby the Government undertook to follow the policies contained in the Party’s election manifestos. This agreement was precipitated by the Party s concern that the Government had apparently been prepared to depart from previous manifesto statements concerning such matters as the public ownership of Postbank (NZ Labour Party 1987 Policy Document p 9), and the “absolute” commitment to “‘consultation and fair negotiation ” with employees of the State (ibid p 89). The adoption of the “Statement of Intent ” by the Government and the Labour Party has made it timely to consider the political and legal significance of election manifesto statements.

The political nature of manifesto influenced directly by the policies. On its face such a declaration may statements A similar distrust of the mandate appear quite unremarkable; in previous

theory has long been shared by times such a Statement would 1 The view of political commentators overseas political observers (see, for presumably have reflected existing One political scientist in New Zealand, example, a British writer, T E Utley, attitudes and expectations. However, in Professor R Mulgan, does attribute (1950) 3 Cambridge Journal 3 and 1988 the Statement did atttract considerable significance to election (1953) 6 Cambridge Journal 195, 203). considerable public interest for it manifestos in the democratic process, In America, Theodore White has seemed to signify a change of opinion and argues that the manifesto of a written with some pungency that “. . . on the part of the Prime Minister and successful political party constitutes it is well known that no . . . program Deputy Prime Minister, both of whom both a mandate and a commitment to (sic) advanced by either party has any had previously, and publicly, implement all the policies contained purpose beyond expressing emotion” deprecated the worth of manifesto therein. This commitment exists, he (The Making of the President, 1961, promises. contends, irrespective of how many p 193). But perhaps the final word Such deprecation had always been a voters may or may not have been aware could be left to an observer whose little surprising. For, certainly in the of any particular policy (Democracy name will be more familiar to legal 197Os, it appears that the leadership of and Power in New Zealand, 1984, pp practitioners. Sir Alfred Denning once both major political parties had paid a 55-60). noted how the leaders of a successful considerable degree of deference, both

However, that view seems to be a political party, upon election, often in public and in private, to their minority one. Professor K Jackson has claimed that they had a mandate to respective party’s manifesto policies. recently suggested that most political carry out everything which was in their For example, Professor Mulgan writes scientists, reject the “mandate” theory manifesto. The future Master of the that during the cabinet meetings of the (The Dilemma of Parliament, 1987, Rolls riposted, “[nlothing of course Muldoon administration a copy of the p 28), and a critical stance to the theory could be further from the truth” (Z7ze election manifesto was kept in the is certainly evident in the New Zealand Changing Law, 1953, pp 8-9). cabinet room, and that it was study by S Levine and A Robinson (The “regularly consulted” (Democracy and New Zealand Voter, 1976, pp 174-176). It 2 The past and present views of the Power in New Zealand, 1984, p 56). is argued by the various critics that the Government’s leadership Similarly, writing a personal history of mandate theory fails to take account of, In the “Statement of Intent” the the Kirk administration, Michael amongst other things, the possible leadership of the present Government Bassett reveals that Mr Kirk, as Prime inclusion of impracticable policies in undertook to implement policies Minister, staunchly refused to depart the manifesto and the possibility of “consistent with the manifesto Of the from a manifesto promise to freeze unforeseen changes in circumstances. New Zealand Labour Party”. The electricity charges, even when Moreover, it is argued by those critics Statement proceeded to provide that if, confronted with an unexpected that the policy statements in political in “extraordinary” circumstances, the electricity shortage and escalating oil manifestos are often deliberately very Government was seriously considering prices (7he Third Labour Government, general, (“. . . oriented towards the goal implementing policies which were 1976, pp 132-133). of electoral victory rather than that of inconsistent with the manifesto, then it In fact such unforeseen and sound policy-making”), and that must carry out a process of consultation dramatically altered circumstances surveys to date indicate that only a with the Party (The Christchurch Press, would have provided a legitimate basis small proportion of voters are usually 3 September 1988 p 1). for departing from manifesto policies,


LAW AND POLITICS

without any diminution of the respect campaign, ostensibly because of for the manifesto as a whole. Certainly printing problems, which seemed to when the present Prime Minister, Mr sound the death knell for such Lange, attempted to explain the documents. For, if as happened in that imposition of the national super- election, a Government could gain an annuation surcharge tax, in apparent impressive electoral majority without breach of his party’s 1984 manifesto, he the prior publication of an accessible eschewed a “strict legalistic defence” election manifesto, it might reasonably (1984) 459 NZPD 1787, 1790) and have been concluded that manifesto simply pleaded that parlous economic documents had become politically circumstances, of which the Labour irrelevant. Party had been unaware in Opposition, However it now appears that the necessitated a breach of election Labour Government’s leadership has, undertakings. Leaving aside entirely by its Statement of Intent, largely the merits of the particular argument, renounced any previous disdain for Mr Lange was there implicitly manifesto policies. Speaking on the accepting that manifesto promises effect of the Statement of Intent the must, in the absence of unforeseen Prime Minister stated pointedly, “[t]he circumstances, be honoured; he Government is not bound. The thereby left intact the authority of the G overment is free to kill itself’ (Z%e manifesto document as a whole. A Christchurch Press 3 September 1988 similar indirect respect for manifesto p 1). It can therefore be expected that a statements, but tinged this time with a more traditional homage will once little more political cynicism, was again be paid to the election manifesto. apparent when Mr Lange praised the At this point, however, it must be lack of specificity in his party’s 1984 recalled that many manifesto policies, election policies on economic of both the major political parties, are management, and commented: often vague and unspecific. To some

extent the lack of specificity can be . . . . [w]e were gloriously unspecific on economic policy, so it

regarded as a desirable attribute, for it

has been very difficult for anyone to allows an elected Government to mould

pin on us a wavering from our policy according to circumstances

stance before the election (1986) prevailing at the relevant times. But

17 National Business Review lack of specificity obviously can lead to

11 July, 20). the making of promises which lack content, meaning and practical effect.

However, a year later Mr Lange was For example, a promise to achieve a

openly declaring that the Labour “fair tax system” could, without more

Government could be held to neither its detail, be relied upon by an elected

1984 nor its 1987 manifesto promises government to justify a regime of either

(as reported in 77re Christchurch Press, progressive or flat tax. Such a nebulous

editorials, 11 August 1987 p 16 and 9 policy would provide no effective

November 1987 p 11). The Prime political restraint on an elected

Minister’s rationale seemed to be that g overnment, for it would not really be

“[i]t would really be quite wrong in possible to argue that it has been

principle for . . . a small segment of subsequently breached.

society to dictate what will be implemented in Government . . .” (The The law concerning manifestos Christchurch Press 30 August 1986 Leaving aside the question of political p 1). In similar vein Mr Palmer, the morality, it is an obvious truth that the Deputy Prime Minister, also is governing political party in the House reported to have declared, without of Representatives is able to give or equivocation, that the Labour withhold legislative authority to each of Government would not regard itself as its election promises as it sees fit. It is bound by Labour Party manifesto an equally obvious truth that in the promises (The New Zealand Herald absence of specific legislative 30 August 1986 and 7he Christchurch authority, election statements can have Press 7 November 1987 p 3). no legal effect (Fitzgerald v Muldoon

At the time such statements must [1976] 2 NZLR 615). have had the effect of markedly But a legally more interesting devaluing the significance of the question does arise where an elected manifesto documents released by the governing authority (of either the Labour Party. But it was the failure of central or local government) possesses the Labour Party to produce a bound an existing statutory discretionary election manifesto until after the power, and the same governing political conclusion of the 1987 election party has previously issued an election

manifesto containing a statement which indicates that the statutory power would be exercised in a particular way. Does such a manifesto statement have any legal significance?

1 The judgments of the House of Lords The two most important judgments of the House of Lords touching on election manifestos, Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 and Bramley London Borough Council v Greater London Council [1983] 1 AC 768, are quite difficult to reconcile (see P P Craig Administrative Law (1983) 368 and D Bull (1987) 50 MLR 307, 316-317). Nevertheless the discussion contained in those two cases on election manifestos must constitute a starting point for any analysis.

In the Tameside case the Secretary of State directed a newly-elected education authority to carry out its predecessor’s plan of turning all schools in its area into “comprehensive” schools. The Secretary of State had the power under the Education Act 1944 (UK) to issue such a direction if he was satisfied that the authority “. . . was proposing to act unreasonably” in the exercise of powers under that Act. The Secretary of State argued that the newly elected authority was proposing to act unreasonably in implementing its manifesto pledge to retain grammar schools, because of the alleged administrative and educational disruption which would be caused by their proposal.

The House of Lords disagreed. In holding that the Secretary of State could not properly have concluded that the authority was proposing to act unreasonably, Viscount Dilhorne, Lord Wilberforce, and Lord Salmon placed great weight on the authority’s recently obtained electoral “mandate”. Thus Lord Wilberforce noted that the retention of grammar schools was one of the chief issues in the election campaign, and he concluded that the Secretary of State had failed to acknowledge that a newly elected Council “. . . was entitled - indeed in sense bound to carry out the policy on which it was elected” (p 1051).

In the Greater London Council case, however, members of both the English Court of Appeal and the House of Lords were quite dismissive of any “mandate” doctrine. In this case, the Greater London Labour Party when successfully contesting the Council


LAW AND POLITICS

elections had made a central campaign financial interests of the ratepayers implementation of political policy issue of its manifesto pledge to reduce were directly affected in a way which might in some circumstances, also London Transport fares by 25 % . Upon was not apparent in the Tameside case, result in a finding of irrationality or election it became apparent to Council and the Courts have historically been unreasonableness (eg consider Wheeler members that the costs to ratepayers of ready to bolster the interests of v Leicester City Council [1985] AC that pledge would be significantly ratepayers with such notions of an 1054, 1079). Certainly it can be greater than estimated, partly because authority’s “fiduciary duty” to the confidently stated that if a decision is of an unforeseen loss of a central ratepayers. Thus the election pledge to actuated by the desire to avoid political government block grant. However the subsidise transport users in the GLC embarrassment then it is likely to be Labour majority on the Council case may arguably have been in conflict held to be actuated by irrelevant decided to “honour” their election with the common law duty owed by the considerations (Padfeld v Minister of “commitment”. Council to their ratepayers. Agriculture [1968] AC 997 at 1032,

In the Court of Appeal, Lord It is therefore possible that the 1061). Denning echoed his earlier extra- Courts will take a more sympathetic judicial criticisms of the “mandate” view towards local authorities who seek 3 The fettering of discretion theory. He argued that when a party to honour their election pledges, if Any indication of a binding gets into power it must consider all its those pledges are not inconsistent with commitment to an election manifesto promises afresh without any sense of statutory provisions or common law may be suggestive of an invalid fetter on commitment to them (pp 776-777). duties. Nevertheless, the GLC the exercise of statutory powers. Thus Watkins LJ opined that early judgments do provide a stark reminder there is a very fine, but important, line implementation of manifesto pledges to all elected public authorities that to be drawn between giving great could point “almost inevitably” to a electoral approval will not save their weight to party policy (which is failure to have regard to other relevant otherwise illegal actions. acceptable) and “blindly” toeing the considerations (p 796). party line (R v Waltham Forest LBC ex

In the House of Lords, Lord 2 Relevant and irrelevant p Baxter [1987] 3 All ER 671, at 677). Wilberforce (p 815) seemed to embrace considerations If there is a blind commitment to the Lord Atkinson’s previous tart dismissal If there are indeed no countervailing manifesto policy there are two avenues of election manifestos in Roberts v statutory provisions or common law for arguing that an invalid fetter on the Hopwood [1925] AC 578, 596-597. duties, the question then arises as to free exercise of statutory powers has Lord Diplock, citing the Tameside whether political pledges contained in a thereby arisen. Firstly, it might be said case, did accept that a manifesto manifesto are relevant in the exercise of that the duly elected and authorised promise could be a relevant and statutory powers. An affirmative representatives have, in effect, “weighty” consideration for elected answer does seem obvious. And, as abdicated their functions to the authors Council members to take into account, previously noted, Lord Diplock in the of the manifesto and are “acting under but held it could not constitute an GLC case did accept that election dictation”. Secondly, it might be said irrevocable fetter on the exercise of the manifesto pledges could normally be that the elected authority has adopted Council’s statutory powers. His regarded as permissible relevant an inflexible rule, rather than a policy Lordship declared, “[a] council considerations to which “considerable for guidance, and has therefore member once elected is not the delegate weight” ought to be attached (supra, infringed the principles laid down in of those who voted in his favour only; p 829). Similarly it was accepted by the British Oxygen Co Ltd v Minister of he is the representative of all the English Court of Appeal that party Technology [Ml] AC 610. Closely electors . . .” (p 829). Lord Brandon policy was a relevant consideration in allied to this, it might be argued that a made similar observations (p 853). exercising a vote on rating matters R v rigid adherence to election policy in

Despite the apparent inconsistency Waltham Forest LBC ex p Baxter [1987] decisionmaking could result in a between these two judgments of the 3 All ER 671. The Court of Appeal finding of bias (Isitt v Quill (1893) 11 House of Lords, there are ways in there indicated that Council members NZLR 224, 257). which the Greater London Council could validly attach greater weight to case can be distinguished from the considerations of party policy than to 4 Legal consequences of broken Tameside case. Firstly, it can be argued their own intellectual assessment of the “promises” that the GLC made its decision to merits, provided they did not vote If legally valid manifesto promises reduce fares and grant a subsidy “blindly” in support of that policy. concerning the future exercise of pursuant to an Act of Parliament, which However, on some occasions the statutory powers are endorsed by the on the House of Lords’ interpretation, party policy could be based on leaders of a subsequently elected required transport operations to be run considerations perceived to be authority, and are relied on by persons on a “break-even” basis. Thus the irrelevant to the statutory scheme under to their detriment (in ways other than manifesto pledge of the GLC was, which authority is acting. For example, the act of voting), do those persons have unlike that of the Tameside authority, in if there is a council policy to ban certain any legal redress if those promises are apparent conflict with the provisions of books or magazines from a library departed from? a statute. Because of this factor Lord because of the industrial practices of It can be noted at the outset that the Wilberforce was able to suggest in the their publisher, that policy, even if formal doctrine of estoppel has a very GLC case (p 814) that the House of supported by its electors, might be limited application in Administrative Lords was there dealing with legality regarded as grounded on Law (Western Fish Products Ltd v and ultra vires, rather than, as in considerations irrelevant to a statute Penwith District Council [1981] 2 All Tameside, with reasonableness in the governing library services (eg consider ER 204). Certainly, as Lawton LJ exercise of discretion. Secondly, it can R v Euling LBC ex p lFmes Newspapers succinctly declared, “[elstoppel cannot be noted that in the GLC case the Ltd (1987) 85 LGR 316. Indeed, be allowed to hinder the formation of


LAW AND POLITICS

government policy” (Laker Airways relied on a manifesto pledge considerations of any sensitivity or Ltd v Department of Trade [1977] QB concerning the exercise of a statutory importance. 643, 728). power enjoyed a legitimate expectation Finally, the implications of Meutes v

However, the developing notion of capable of judicial protection. In CCSU Attorney-General [1983] NZLR 308 are

fairness, in its substantive sense, may v Minister for the Civil Service [1985] worth briefly considering. The case AC 374, 401 Lord Fraser indicated that raises the hypothetical question of

produce a restraint equivalent to estoppel in the exercise of discretionary from LG

a legitimate expectation could arise whether a manifesto pledge of, say, . . powers, and may thus provide a ray of * ’ ’ an express prom’se glyen On financial assistance to a company’s

hope, albeit a very slender one, for behalf of a public authority . . . ; but shareholders (perhaps reinforced by

litigants who seek to base a claim on there are the previously mentioned election statements and advice from doubts as to whether manifesto

some breach of a manifesto promise. In incumbent officeholders) could ever

R v Inland Revenue Commissioners ex promises, even given by the governing give rise to a duty of care to those

p Preston [1985] AC 835 the House of political party, can be regarded as given shareholders. It is probable that the

Lords adopted the dicta of the English “on behalf of a public authority”. Cases courts would hold that the

Court of Appeal in HTV Ltd v Price as Attorney General for Hong Kong v officeholders could not reasonably

Commission [1976] ICR 170 and Ng Yuen Shiu [1983] 2 AC 629 and R v expect that a pledge given in the Secretary of State ex p Khan [1985] 1 circumstances of an election campaign indicated that the Courts might find All ER 40 can therefore be readily

unfairness or an abuse of discretionary was likely to be relied upon or treated distinguished. Moreover, the case of Re power of the decision-maker, in seriously. (Moreover there is a oblique Findluy [1985] AC 318 does indicate

exercising statutory powers, acted in a hint in Sling v Ashcroft [1987] 2 NZLR

way which at private law would have that persons cannot enjoy a legitimate 154, 157 suggesting that the Me&es

amounted to a breach of contract or expectation that the policies of a case is not immune from review). But

estoppel. However the Preston case governing authority will remain nevertheless the tort of negligent

does establish that a clear specific unchanged. misstatement and, in appropriate Ultimately the availability of

representation is needed before any circumstances, the tort of deceit might

departure raises those questions of judicial review may depend upon give the politicians on the campaign

fairness; and, as previously noted, whether the issue is truly justiciable. trail some pause for thought.

many manifesto statements do lack As Richardson J has noted in

specificity. The Laker case (supra) also CREEDNZ v Governor-General [1981] 1 NZLR 172, 198 and Ashby v Minister Conclusion indicates that a Court is equally

unlikely to hold that the resiling from a of Immigration [1981] 1 NZLR 222, The law therefore seems tolerably

previous representation is an abuse of 231, the larger the policy content, and clear. The political policies contained

power, or unfair, if it finds that some the more sensitive and controversial the in an election manifesto may be taken

countervailing public interest is political issues involved in a decision, into consideration by a subsequently

present. Additional difficulties arise the less well-equipped the Courts are to elected authority exercising its

with respect to manifesto weigh the considerations involved and statutory powers, provided those

representations. For instance, it must the less likely the Courts are to policies are not founded on

be clear that the representations of the intervene. Thus whilst it is conceivable considerations irrelevant to the statute

authors of the manifestos can be truly (just) that the Courts of an “activist” and are not treated as superseding all

regarded as the representations of the frame of mind might on some future other relevant considerations. For the

members of the duly elected authority occasion intervene to protect an elector, who feels aggrieved by any

(Bramley LBC v GLC [1983] AC 768, aggrieved individual who by relying on subsequent departure from announced,

789-90 per Oliver LJ). a broken “promise” has suffered legally valid policies there is little identifiable detriment, it is prospect of legal redress. The answer

It also seems unlikely that the inconceivable that this intervention lies in an appeal to political honour, not Courts would find that a person who would occur if the issue involves policy in an appeal to the law. 0

continued from p 107 Cato concludes: Both aspects of this conclusion are endorsed. The text of this paper can

Assuming that the advocates of endorse neither Cato’s specific reason retention have lost the debate, Cato It may sadly be anticipated that New for the abolition of the right to appeal to rebuts the argument that the creation of Zealand will become a country the Privy Council nor, it follows, its a New Zealand Supreme Court would which witnesses far greater conflict substitute. not have enough work to occupy it. than in the past as the gap between The analysis of the decisions of the That that is a fallacy is easily rich and poor widens, and racial Privy Council regarding aboriginal demonstrated by the fact that New disharmony becomes more clearly rights is the basis for the contractual Zealanders are becoming increasingly apparent. Although conflict may be approach of the first section of Part II of litigious: a healthy characteristic of a this paper. The analysis of the New

democracy, it is submitted that it is Zealand Court of Appeal’s decision in There are new areas of litigation of the utmost importance that there Muori Council with respect, foretold emerging. Matters involving the exists a superior appellate tribunal that the Government, as protector, Treaty of Waitangi and, if it is ever which will command great and would return Ngati-Whatua land to its enacted, a Bill of Rights would be of hopefully universal respect where legal owners. With respect, Cato’s is a concern to the Court . . . serious issues arise. self-fulfilling prophecy. 0


LEGAL PROFESSION

Admission ceremony

At an admission ceremony in the High Court at Wellington on 18 November 1988 Mr Justice Jeffries addressed the following remarks to those newly admitted.

Ladies and gentlemen, admission to the roll of barristers and solicitors, as you have just witnessed, is a judicial act with orders made on motions moved by counsel. Strictly speaking the Judge’s work is done, and perhaps he ought to retire immediately.

However, even the most saturnine Judge is tempted on an occasion such as this to go a little beyond the formal orders which have just been pronounced.

I confess to difficulty in deciding what is appropriate for me to say to you. Admission is something akin to a graduation. I avoid an address fit for that. To some it is perhaps closer to a thanksgiving, with relief the dominant emotion. I do not feel equal, or qualified, to conduct a service.

When an old man is presented with a young captive audience that by tradition and protocol is bound to keep silent, he sometimes finds it difficult to resist giving some

advice arising out of what he thinks has been a rich and satisfying life.

Advice from such a source is suspect for it is usually a thinly disguised strategem enabling him to blow his own trumpet.

For myself I am with Sean O’Casey, the great dramatist, who said:

I’d love to blow my own trumpet, but the work’s too hard. And even if others supply the trumpet, they expect you to provide the wind.

I venture to say that in your professional lives you will find giving true advice is very hard work indeed, as for an old man even blowing his own trumpet is.

Notwithstanding what I have just said, there is so much about the law which is gratifying and enjoyable.

I respectfully offer to each of the newly admitted my congratulations on your achievements and admission to the profession of law.

In those congratulations I include your families for surely they would have played an important role in your success.

In the conduct of society the law, and knowledge of it, are strong and powerful influences. I think they are increasing rather than diminishing. The greater the influence and power the law wields, then correspondingly the greater is the responsibility of those who possess its knowledge and practise it.

Let us agree this is an important occasion, worthy of the ceremony that attends it, and the presence so as to witness it, of your family and friends. It is unquestionably one of the more important events of your lives.

Finally, I will give some advice that I hope you will find of some use. Read, if you have not already done so, Charles Dickens’ Bleak House - it might be one of the most instructive books on the law you will ever encounter. I7

Judicial

self-appraisement

The judicial hall of fame is full of personalities; Dowdall the indecisive judge: “. . . Done it again, dammit.” “Done what Judge?” “Given judgment for the wrong side, dammit . . .”

The modest judge, Chapman J: “I do not profess to be a stockbroker or merchant banker or a computer . . .”

The polite judge, Graham who addressed a burglar, “My honest friend, you have been found guilty of a felony . . .”

Charlotte Buckhaven New L.aw Journal

19 August 1988
