New Zealand: The (legal) Supremes' greatest hits of 2012

Brief Counsel

Download: 2013 PUB BC The Supremes' greatest hits - 22 Jan.pdf

For those with an appreciation of classic music from the 1960s, the Supremes were the outstanding vocal group on the Tamla Motown label. For those (fewer in number) with an interest in New Zealand jurisprudence, "The Supremes" is shorthand for the judges of our Supreme Court: the five judges sitting on our court of final appeal.

In the spirit of the seasonal tendency to identify highlights of the past calendar year, we offer our selection of the (legal) Supremes' five greatest hits of 2012, below.

Supreme Court Act 2003, section 3:

  1. "The purpose of this Act is –
    1. to establish within New Zealand a new court of final appeal comprising New Zealand judges –
      1. to recognise that New Zealand is an independent nation with its own history and traditions; and
      2. to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions; and
      3. to improve access to justice; and
    1. to provide for the court's jurisdiction and related matters; and
    2. to end appeals to the Judicial Committee of the Privy Council from decisions of New Zealand courts; and
    3. to make related amendments to certain enactments relating to courts or judicial proceedings.
  1. Nothing in this Act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament."

As serious fans will know, two members of the group (sorry, Court) retired last year. Justices Peter Blanchard and Andrew Tipping have gone, save for guest appearances when a permanent member cannot sit. They were original members, elevated from the Court of Appeal when appeals to the Law Lords of the Privy Council in London were disestablished a decade or so ago. This leaves the Chief Justice, Dame Sian Elias, as the surviving original member.

The replacements on the Court are Justices Robert Chambers and Susan Glazebrook, appointed from the Court of Appeal and likely to have lengthy terms on the Supreme Court.

As most fans will also know, the Supreme Court selects the cases it will hear by granting or refusing leave for applications to appeal against Court of Appeal decisions. The rather opaque statutory criterion for leave is whether a Supreme Court determination is "necessary in the interests of justice". This is, however, elaborated by references to whether the appeal involves matters of "general or legal importance" (including "significant issues relating to the Treaty of Waitangi"), of "general commercial significance", or a possible "substantial miscarriage of justice".

And as diehard fans also know, courts of final appeal are scrutinised by sceptical practising lawyers, academic lawyers and (occasionally) a few politicians or news media types for signs of "judicial activism", also known as "development" of the law. The contrast is with "judicial restraint" (or "deference") also known as "maintaining predictability" in the law.

It is also the case that courts of final appeal go through cycles as personnel change, and the wider social and/or political context changes. The High Court of Australia under the last three chief justices there offers a good example of such phenomena.

We are not foolish enough to offer a prediction about the impact of the 2012 changes in our Supreme Court personnel, but, as they say, will be watching that space.

As for our 2012 selection of "greatest hits", there is a modest amount of logic in our reasoning. The Supremes' main judgments included wrestling (yet again) with the boundaries of negligence, with particular reference to aspects of the "leaky buildings" saga; and some things to say about pre-Treaty norms and the "common law" (usually thought of as judge-made, rather than legislative, rules) of New Zealand. And they managed to produce a not insignificant judgment about abortion with none of the publicity which would accompany such an event in North America.

In any event, and in chronological order only, our Top Five from the Supremes in 2012:

1. Paki v Attorney-General (June 2012)

  • Decided that 1903 coal mines legislation which vested certain riverbeds in the Crown (overriding any earlier title of Maori owners) applied only to riverbeds "navigable" as a matter of fact.
  • Concluded that the relevant part of the upper Waikato River was not navigable in 1903.
  • Emphasised that the "common law of New Zealand" adopted English common law only insofar as applicable to local circumstances, and does not necessarily include English conveyancing presumptions as to ownership of lakes and rivers.

This decision dealt with only one of several issues on the appeal (others are to be argued in February 2013), reversing the Court of Appeal on the Coal Mines Act "navigability" point. Justice William Young dissented, providing obscure information about the use of "punts" (other than on the Avon).

Infallibility?

" ... many of the matters that are subject to this process of further appeals are those hard cases over which reasonable judges may and often do differ. In that sense there is no right answer. Justice Jackson of the United States Supreme Court is often quoted – 'We are not final because we are infallible, but we are infallible only because we are final', Brown v Allen (1953) 344 US 443, 540. He went on to say that a provision of a further appeal beyond the Supreme Court would no doubt lead to a proportion of successful appeals." (Law Commission, 1989)

2. North Shore City v Attorney-General (June 2012)

  • Reiterated that the existence of a tortious (non-contractual) duty of care is to be considered by careful reference to the salient features of the case and within a framework of two broad fields of inquiry (the relationship between the parties; and external considerations), and declined to follow the formulae (likely less plaintiff–friendly) used in Australia or England.
  • Concluded, having particular regard to the statutory context (the Building Act 1991), that the Building Industry Authority owed no duty of care in relation to its 1995 report on procedures relating to inspection of homes for weathertightness – either to local authorities or to property owners.
  • Emphasised caution in striking out claims before trial, including where the law is confusing or developing.

The majority judgment settles these matters. The Chief Justice dissented on the substantive issue, and would have let the claims against the BIA go to trial. Court of Appeal decision upheld.

3. Right to Life NZ v Abortion Supervisory Committee (August 2012)

  • Concluded that the Committee's powers under the 1977 abortion legislation do not extend to inquiring into or reviewing particular decisions by certifying consultants, but does permit (and require) "generalised" inquiries (such as workload, approach, and perhaps socio-ethnic data) to assess national consistency and inform its reports to Parliament.
  • Observed that appeals must be against decisions, not comments, in lower courts, but even "forthright" comments may be justified in some cases. (But, in "this highly sensitive field no good purpose would be served by this Court weighing in with its own opinion".)

A majority opinion, partly reflecting the relevance of the separate disciplinary role of the Health and Disability Commissioner under other legislation. Justices McGrath and William Young dissented, considering that the Committee's statutory powers were wide enough to seek information retrospectively from certifying consultants about diagnoses of individual cases. Court of Appeal decision (on substantive interpretation issue) upheld.

Why have appeals?

"Why is the decision on appeal likely to be more acceptable and correct? The reasons relate to the body which hears the appeal, the issues it considers, and the process it follows. The appeal court is often composed of a greater number of judges who are able to combine their several abilities. The parties, their counsel, and the appeal judges themselves will also have substantial assistance from the fact that the matter has already been heard and been the subject of a reasoned judgment or the summing-up in the case of a criminal jury trial and that the appeal process as a consequence is focused on a particular problem or problems. Moreover appeal judges should be less affected by pressure of time." (Law Commission, 1989)

4. Body Corporate No. 207624 (Spencer on Byron) v North Shore City (October 2012)

  • Extended local authority liability for negligent building construction inspections to claims about commercial buildings: it would not be just and reasonable to restrict the local authority's duty of care to residential buildings.

This decision represents a fairly emphatic restatement (perhaps revisionist reinstatement) of a liberal – plaintiff friendly – approach to negligence liability in New Zealand. ("We accept that other courts and judges could reasonably evaluate the policy factors differently from us.") It decides that the NZ departure from English law in Hamlin (1994) was not only correct on general principles in relation to residential buildings but could unapologetically be extended to all buildings. Justice William Young produced a lengthy dissenting judgment. Court of Appeal decision reversed.

5. Takamore v Clarke (December 2012)

  • Established an "executor as first decider" approach to the question of burial/cremation of human remains – that is, unless the point is promptly litigated (in which case the courts will make the decision), the executor or personal representative has the right and duty to make the burial decision.
  • Confirmed that the executor here, the deceased's long-term partner, had validly decided in favour of burial in Christchurch – reflecting the deceased's life choices and the views of both the executor and their adult children – and that the removal of his body to the Bay of Plenty by his wider whanau was invalid.
  • Stated that the common law of New Zealand requires references to tikanga, where appropriate – here as part of the circumstances to be considered by the executor (and subject to a broad judicial review).

This decision was a narrower victory for spouses (legal or de facto) than might be thought from the headlines. The deceased's 20 years in Christchurch, with limited contact with his Bay of Plenty whanau, and the views of the adult children, were significant factors. There is some difference of emphasis between the (joint) majority and the two separate concurring judgments on the approach to reflecting tikanga in the "common law of New Zealand" – a topic bound to be explored in relevant litigation over future decades. No dissents. Court of Appeal decision upheld.

An underarm view ...

"A bird's eye view of the major common law jurisdictions moving west from the International Date Line in 1954 would start with New Zealand. In those days, the judicial system of New Zealand operated almost perfectly. That slice of Scotland which was the small city of Dunedin had a much more significant role in the life of that country then than now, and the Scottish tradition in New Zealand life generally was strong. ... There has been no famous names since Salmond, but any reported case would reveal a steady, skilful, tradesmanlike approach. Thereafter two events happened which, for better or for worse, have changed New Zealand law for ever. On 8 November 1972, Robin Brunskill Cooke was appointed to the bench. On 25 September 1990, the Bill of Rights Act 1990 (NZ) came into force." (Justice Heydon, High Court of Australia, 2012)

These Top Five decisions, and their selection, include matters of difficulty and controversy. But then that is the stuff of dispute resolution.

View Chapman Tripp's litigation partners

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael Arthur
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions