ACCT152

• Explain the meaning and significance of Ratio decidendi

  Reason for the judge’s decision which will create binding precedent that must be followed by lower courts to create predictability in the law, it is significant as it helps with consistency in law, it enables the doctrine of precedent. Material facts + Judges decision
• Explain the meaning and significance of Obiter Dicta

  General, by the way statements made by a judge that are not essential to the decision, that are not part of ratio decidendi and are not legally binding, they are significant as they can be used as an interpretation aid in future cases
• Explain the meaning and significance of Stare Decisis

  When the doctrine of Precedent applies – when a particular court will be bound to follow the decision (ratio decidendi) of an earlier court and when it is free to ignore or overrule it 
• Explain the meaning and significance Distinguishing a case

  To argue that the material facts of a case are different from another and should not use the same principles as the earlier case this is significant as creates new ratio decidendi.
• Explain the meaning and significance of overruling a case

  If a decision of another court is over ruled then the ratio decidendi of that earlier decision is not good law anymore, only the ratio decidendi has been overruled not the order of the court. Judges will often attempt to distinguish the case rather than overrule it.
• What are the elements that must be established for a successful claim in the tort of negligence

  1)     The defendant must owe the plaintiff a duty of care

  2)     The defendant had breached that duty by failing to exercise the standard of care deemed appropriate in the circumstances

  3)     The defendant’s breach had caused harm to the plaintiff (harm and causation)

  4)     The harm caused was not so remote from the breach that it would be undesirable, for economic efficiency or social policy reasons, to compensate the plaintiff (remoteness of harm)
• What are the sources of New Zealand’s Constitution?

  . Formal legal documents -

  (a) enacted by the parliament eg the Constitution Act 1986, the Electoral Act 1993, Bill of rights 1990, Human rights act 1698

  (b) imperial statutes eg manga carta 1297, bill of rights 1698, Letters Patent etc

  2.Judicial precedents

  3.Constitutional conventions eg long standing practices

  4.Treaty of Waitangi

  5. International treaties

  6.Common law
• Treaty of Waitangi Status in International Law (First Two)

  1. Parties must have international personalities - Some scholars argue Maori lacked internationally recognised statehood, Maori argue, they had governing institutions and civil order
  2. Parites must intend to act under international law - debate exists on whether the treaty was intended to create legally binding obligations under international law
• Treaty of Waitangi Status in International Law (Three and Four)

  1. Meeting of mind ( consensus and idem) - Some argue no true meeting of minds due to translation issue and differing understandings of sovereignty, others contend that Maori understanding and agreed as many chiefs signed the Treaty
  2. Parties must intend to create a legal obligation - British Intent: Legal sovereignty, - Maori Intent: secure protection and partnership, rather pull cession of sovereign
• What are the Sources of New Zealand's Constitution

  1.Formal legal documents -

  (a) enacted by the parliament eg the Constitution Act 1986, the Electoral Act 1993, Bill of rights 1990, Human rights act 1698

  (b) imperial statutes eg manga carta 1297, bill of rights 1698, Letters Patent etc

  2.Judicial precedents

  3.Constitutional conventions eg long standing practices

  4.Treaty of Waitangi

  5.International treaties

  6.Common law

  New Zealand operates as a constitutional monarchy with a parliamentary democracy and its constitutional framework continues to evolve over time.
• Section 10 of the Legislation Act

  How to ascertain meaning of legislation

  1. the meaning of legislation must be ascertained from its text and in light of its purpose and its context
  2. subsection (1) applies whether or not the legislation's purpose is stated in the legislation
  3. the text of legislation includes the indications provided in the legislation
  4. examples of those indications are preambles, a table to contents, headings, diagrams, graphics, examples and explanatory material, and the organization and format of the legislation
• Explain the meaning and application of ejusdem generis in statutory interpretation with reference to case law

  Where there is a list of specific words which ends in a general word or phrase, the general word or phrase will be considered to include only things of the same class as in the list

  In Otley v Armstrong 1938 - A statute provided that a ‘factory’ was any ‘ building, office or place’. The issue was whether workers in an outdoor timber yard were working in ‘a place’. It was held the list ‘building, office’ referred to indoor structures or buildings of some kind, therefore the general word ‘place’ included only structures or buildings of the same kind, that is indoor structures or buildings and did not include an outdoor timber yard. Consequently an outdoor timber yard was not a factory.
• Explain the meaning and application of nosctiur a sociis in statutory interpretation

  The meaning of a word is coloured by the words immediately surrounding it - that is the words must be read in its context - particularly when it is a member of a list or series.

  In R v Ann Harris (1836) - a statute provided that ‘if a person shall unlawfully and maliciously stab, cut or wound any person, with intent.. to main disfigure or disable such person, the person will be guilty of a felony. The accused injured another by biting off the end of her nose. It was held that the intention of the piece of legislation was that the wounding should be inflected with an instrument - rather than by hands or teeth. The accused was found not guilty under this section.
• Explain the concept of vicarious liability

  1. Definition

  • Vicarious liability occurs when one person is held legally responsible for the actions of another
  • "he who acts through another is liable as if he was acting himself"

  1. Common Relationships

  • Employer and employee
  • Master and servant
  • Principal and agent
  • Partnership

  1. Three conditions for Vicarious Liability

  • Existence of a relationship ( eg employer and employee)
  • Employee commits a tort (employee is personally liable as well)
  • Tort occurs within the course of employment
• Example of Vicarious liability:

  A delivery driver, employed by a courier company is running late and speeds through a red light, crashing into another car and injuring the driver. The injured driver sues both the courier company and the employee.

  Application of Vicarious Liability:

  • There is an employer-employee relationship between the courier company and the driver
  • The driver committed a tort (negligence) by running the red light, and causing harm
  • The tort occurred in the course of employment - the driver was performing job-related duties when the accident happened.

  Outcome

  The employer may be held vicariously liable for the driver's negligence, even though the driver is personally at fault. The company may also have insurance to cover such liability
• Briefly discuss the elements for a successful claim in the tort of negligence with reference to relevant case law

  Duty of care - Meah v McCreamer - negligently crashed his care, causing brain damage to his passenger, then became so deranged that some months later he set fire to c's house held no duty of care due to time

  Beach that duty of care - Bolton v Stone 1951 - during a cricket game, the ball flew out of the cricket ground hitting the claimant who was standing on the road 100 years away. While had gone that far out before very rarely so it was held by the House of Lords there was no negligence, based on whether a reasonable person would foresee this as anything more than an extremely remote risk
• Briefly discuss the elements for a successful claim in the tort of negligence with reference to relevant case law (3rd)

  The breach caused harm - Barnett v Chelsea & Kensington Hospital Management Committee 1968 - Mr Barnett became sick after drinking tea that had arsenic - went he went to the hospital he was turned away and he died later that night. It was held that the hospital owed a duty of care, and they had breach the duty of care, but they were not held liable as the death wasn't caused by negligence as despite any amount of treatment he still would have died.
• Briefly discuss the elements for a successful claim in the tort of negligence with reference to relevant case law

  That was not too remote - Mainguard Packaging Ltd v Hilton Haulage Ltd 1990 - a truck driver reversed against a power pole leading to the electricity being cut off and a loss of production. Then it also caused a fire. The court held the it was foreseeable that crushing a power cable could cut off power to the factory. However it was not foreseeable that this could cause a fire. This made the damage by the fire too remote. Mainguard got compensation for the loss of production but not from fire damage.
• With reference to relevant case law briefly discuss three factors which may be considered by the court in determining whether there is a breach of the duty of care - Proximity

  • Reasonable foreseeability
  • Analogy with other cases
  • Proportionality
  • Vulnerability
  • Other remedies
  • Nature of loss
  • Statutory and contractual background
  • Time -Meah v McCreamer - negligently crashed his care, causing brain damage to his passenger, then became so deranged that some months later he set fire to c's house held no duty of care due to time
  • Proximity - McLoughlin v O'Brain 1982 - a women was able to claim compensation from the driver of a car which had caused an accident in which one of her children was killed. Although the claimant wasn't present at the accident, she still suffered psychiatric injury as a resul
  • Place and connection
• The ultimate question when deciding whether a duty of care should be recognised is whether in the light of all the circumstances of the case, it is just and reasonable that such a duty be imposed. With reference to relevant case law briefly discuss three factors which may be considered by the court in determining whether there is a breach of the duty of care - Policy Considerations

  • Opening the floodgates
  • If the harm is financial
  • Seriousness of harm
  • Requirement of justice

  Russel v McCabe 1962 - an injured volunteer fire fighter could recover against the person whose negligence caused the fire
• Give examples of legislative and case law developments that have resulted in the Treaty becoming incorporated into New Zealand domestic law (status of the Treaty domestically)

  Legal implementation based on treaty principle - environment act 1986, state owned enterprises act 1986, resource management act 1991

  Mandate considering the Maori dimension - Maori Fisheries Act 1989 and Maori Language act 1987

  Recognition by courts - NZ Maori council v Attorney - General (1987) - Treaty recognised as a statutory aid to interpretation

  Constitutional status
• Give examples of legislative and case law developments that have resulted in the Treaty becoming incorporated into New Zealand domestic law (status of the Treaty domestically)

  Duties on the Crown

  • To actively protect Maori use of their lands and waters to the fullest extent practicable
  • To act in utmost good faith toward Maori
  • To act reasonable when considering Maori interests
  • To remedy pas breaches of the treaty unless there are reasonable grounds for withholding relief

  Duties on Maori

  • To be loyal of the queen and fully accept her government
  • To cooperate reasonably

  1. Not a fundamental law, but referenced in legislation
  2. Select committee on supreme court bill - recommended adopting a written constitution
  3. 2004 government review explored the role of treaty
  4. 2011 the constitutional Advisory Panel was created
• With reference to relevant case law, briefly discuss the two stage approach adopted by the court to determine whether a duty of care should be imposed in the tort of negligent misstatement

  Proximity and Policy

  1. Assumption of responsibility
  2. Reliance
  3. Foreseeability of reliance
  4. Purpose for which the statement is made
  5. Purpose for which the statement is relied on
  6. Legal environment against which the statement is made
  7. Contract matrix
  8. Disclaimer
• With reference to relevant case law, briefly discuss the two stage approach adopted by the court to determine whether a duty of care should be imposed in the tort of negligent misstatement

  Attorney-General v Carter 2003 - The respondents were interested in buying a vessel, in pursuance of the law, the vessel was inspected by the Marine Safety Authority who issued a certificate of survey, the respondents bought the vessel which was subsequently seized and sold for scrap, the claim failed as there was no duty of care on the part of the Marine Safety Board to protect the respondent's economic interests. No relevant proximity between the parties so as to satisfy that criterion for the imposition of a duty of care. It could not reasonably be said that the Marine Safety Authority should be deemed to have assumed responsibility to the respondents not take care in issuing the certificates not to harm their economic interest in the vessel.
• NZ Court Hierarchy

  
• Explain what is meant by the Doctrine of Parliamentary Sovereignty. Your answer should include discussion of the implications of the doctrine and special attributes

  • Parliament has absolute and unqualified power to make law according to the doctrine of parliamentary sovereignty - so they can pass any law they like and they are the supreme lawmaking power
  • Parliament cannot bind its successor - it cannot pass laws that permanently limit its own power
  • Entrenchment - can be used to make law harder to amend or repeal but entrenchment is not absolute - a future Parliament can still remove entrenched laws
  • The constitution Act 1986 affirms parliament full lawmaking power, meaning a bill passed by the house becomes law once it has been given general assent
  • Limitations under NZ Bill of Rights Act 1990 - interpretation consistent with Bill of rights preferred
• Explain what is meant by the Doctrine of Parliamentary Sovereignty. Your answer should include discussion of the implications of the doctrine and special attributes

  • Parliamentary sovereignty is different from state sovereignty which is the right to ownership of a territory and the acquisition of an absolute power to make and enforce law for a territory
  • Suggestion that some common law rights created by judges cannot be overridden by parliament eg no torture in Taylor v New Zealand Poultry Board
  •  Indirect restraints on Parliament's power include - elections, public opinion, parliamentary process, use of select committees.
  • Legislation is the highest form of law overriding common law and international treaties
  • Parliament can delegate its lawmaking powers to other bodies, has the same legal status as parliamentary legislation if it is made with the statute authorising the delegated legislation
• Explain the meaning and scope of the common law Doctrine of Aboriginal Title. Support your review of this law with reference to relevant authorities

  • Common law principle based on the recognition that indigenous people of a country have exercised ownership rights over land since the time it was first occupied by them. These rights have legal force. Concerns the customary right to use and occupy land, even though that land is owned by the Crown.
  • R v Symonds (1837)
  • Legally enforceable rights under the doctrine
  • Wi Parata v Bishop of Wellington (1877)
  • Moral obligation placed on the crown
  • Nireaha Tamaki v Baker (1901)
  • PC disapproved of the Wi Parata approach but did not overrule it
  • Re the Ninety Mile Beach (1963)
  • Courts followed the Wi Parata decision and found that the customary rights could not be enforced against the Crown unless embodied in statute
• Explain the meaning and scope of the common law Doctrine of Aboriginal Title. Support your review of this law with reference to relevant authorities (2)

  • Te Weehi v Regional Fisheries Officer (1986)
  • CA appeared to accept the application of the doctrine
  • Therefore it would appear that customary rights are now protected under the doctrine of aboriginal title.
  • Being a common law principle, customary rights can be extinguished by legislation - Foreshore and Seabed Act 2004 extinguished Maori customary title in the foreshore and seabed and vests the public foreshore and seabed in the Crown
  • Marine and Coastal Area Act 2011 - replace Foreshore and Seabed Act - puts it into the public domain
• With reference to statutory provisions outline the modern New Zealand approach to statutory interpretation

  • Reference legislation act section 10 2019
  • In interpreting legislation, the courts should seek to give effect to the purpose or the intention of Parliament, an alternative interpretation of words may be adopted if the section requires it, provided that interpretation is one that the words can bear. Then look to intrinsic and extrinsic aids.
• Outline the jurisdictions of the courts

  Supreme court is appellate only

  Court of Appeal - appellate in civil and criminal appeals, original only in matters involving difficult questions of law

  High court -  Civil and Criminal original jurisdiction, and appellate jurisdiction from the district courts

  District court - civil and criminal original jurisdiction and limited appellate jurisdiction
• Give two examples of public law

  • Constitutional law - Electoral Act
  • Administrative Law - Privacy Act 2020
  • Criminal law - Crime Act 1961
  • Revenue law - Income tax act
• Give three examples of private law

  • Contract law
  • Law of torts
  • Property law
  • Family law
• What is the essential aspect of a company that was established in Salomon v Salomon & Co (1897) and adopted in New Zealand in Lee v Lees Air Farming Ltd (1961)

  The separate legal entity principle/personality was first established in Salomon v Salmon  & Co (1897).  Meaning ' a company is a legal entity in its own right separate from its shareholders'.

  • Salomon incorporated his sole trading business into a company
  • The company later become insolvent and the liquidator sought to recover money from Salmon however the House of Lords ruled that the company was a separate legal entity with its own rights and liabilities and that Mr. Salomon was not personally liable for the company's debts.
  • In Lee v Lee, the company was said to be a separate legal entity, therefore it was accepted that Mr. Lee was an employee, and therefore the company had to pay for compensation for the death due to the employment.
• Outline 3 advantages and 3 disadvantages of a Sole Trader

  Advantages: owner gets all the profits, owner has full control of the business and easy to start up and run.

  Disadvantages: unlimited liability for owner who is solely and personally liable for debts of business and wrongs committed by employees,  raising capital may be difficult and lack of continuity
• Outline 3 advantages and 3 disadvantages of a Partnership

  Advantages: additional assets, broader expertise input by partners, cheap easy and fast to establish and high degree of privacy

  Disadvantages: usually all partners have unlimited joint and several liability for any debts and obligations, partnership terminates upon death or resignation of one partner, unanimous decisions required on some matters, potential for conflict
• Outline 3 advantages and 3 disadvantages of a Company

  Advantages: shareholders liability limited, easier to raise funds and attract investment, perpetual life

  Disadvantages: more legal requirements, control of company generally lies with its board of directors, directors may be held personally liable for breach of statutory duties.
• Treaty of Waitangi Status in International Law

  1. Parties must have international personalities - Some scholars argue Maori lacked internationally recognised statehood, Maori argue, they had governing institutions and civil order
  2. Parties must intend to act under international law - debate exists on whether the treaty was intended to create legally binding obligations under international law
  3. Meeting of mind ( consensus and idem) - Some argue no true meeting of minds due to translation issue and differing understandings of sovereignty, others contend that Maori understanding and agreed as many chiefs signed the Treaty
  4. Parties must intend to create a legal obligation - British Intent: Legal sovereignty, - Maori Intent: secure protection and partnership, rather pull cession of sovereign