Common Law Action Research Articles

Preventing unfair competition in Australia, New Zealand and South Pacific countries: the intertwined roles of passing off and consumer protection statutes

Abstract Australia, New Zealand and other South Pacific countries whose laws are based on English law tend to rely on a patchwork of intellectual property statutes, equitable doctrines and common law actions to prevent acts of unfair competition. The most distinctive feature of the laws of these countries is their reliance on consumer protection statutes that contain broadly worded prohibitions on parties engaging in misleading or deceptive conduct in trade or commerce, in addition to the tort of passing off, to safeguard against unfair competition. This article traces the complex relationship between passing off and consumer protection statutes in Australia, New Zealand and throughout the South Pacific. It shows how the actions have come to have a largely mixed or merged operation that seeks to balance interests in protecting trading reputation, in ensuring that consumers are not deceived, and in leaving space for competitors, especially given the limits of intellectual property statutes and other doctrines. It does so in the course of providing a detailed explanation of how Australia, New Zealand and other countries in the region give effect to their obligations under Article 10bis of the Paris Convention.

A denial of property rights: knowing receipt and Byers v Saudi National Bank

The recent decision of the Court of Appeal in the long-running case, now known as Byers v Saudi National Bank,1 concerned a misapplication of trust property. The recipient of that property (Samba) did not dispute that its state of knowledge was sufficient in principle to satisfy the requirement for knowing receipt liability, namely that the Defendant’s knowledge was such as to make it unconscionable for it to retain the benefit of the receipt. The question facing the Court of Appeal was whether this of itself was adequate for knowing receipt liability. In answering this the Court noted the once widely held view that knowing receipt liability should be subsumed into the fault-based test for restitutionary liability: “Before Akindele was decided, it was sometimes suggested that liability for knowing receipt was restitutionary. Thus, in El Ajou v Dollar Land Holdings plc at first instance ([1993] 3 All ER 717) Millett J, at p 736, described knowing receipt as ‘the counterpart in equity of the common law action for money had and received’ and said that ‘both can be classified as receipt-based restitutionary claims’. Similarly, Lord Nicholls of Birkenhead observed in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, 386, that liability for knowing receipt is ‘restitution-based’ and, writing extra-judicially in Cornish, Restitution Past, Present and Future (1998), said this at para 238–239: ‘Restitutionary liability, applicable regardless of fault but subject to a defence of change of position, would be a better-tailored response to the underlying mischief of misapplied property than personal liability which is exclusively fault-based. Personal liability would flow from having received the property of another, from having been unjustly enriched at the expense of another. It would be triggered by the mere fact of receipt, thus recognising the endurance of property rights. But fairness would be ensured by the need to identify a gain, and by making change of position available as a defence in suitable cases when, for instance, the recipient had changed his position in reliance on the receipt.”2

Derivative Action- An Impartial Right given to Minority Shareholders under Pakistan’s Legislation

Derivative Action- An Impartial Right given to Minority Shareholders under Pakistan’s Legislation

Dower Ex Assensu and Trial by Jury and Trial by Witnesses in the English Medieval Common Law

ABSTRACT When widows claimed dower they were normally claiming part of the lands which their husband had possessed during their marriage. But the medieval common law also allowed widows to claim lands which the husband had never held if they had been in the possession of a close relative of the husband at the time of the marriage provided the relative had been present at the marriage and given consent to the endowment made by his or her heir apparent. This paper analyses the sixty or so actions of dower ex assensu found on the plea rolls for the period down to 1307 and in associated law reports. That assent was recorded in a written charter in relatively few cases. In most the court relied in part or in whole on the evidence of witnesses present at the ceremony. Sometimes their evidence alone was decisive. More commonly witnesses were added to a jury which gave a collective verdict on whether consent had been given. These cases provide a valuable reminder that witness evidence was already in the thirteenth century a regular and accepted feature of at least one form of common law action.

The Curious Case of Horseracing Data Caught in a Tangled Web of Relationships – The Racing Partnership Ltd v. Sports Information Services Ltd [2020] EWCA Civ 1300

This paper comments on the recent split decision of the English Court of Appeal in The Racing Partnership Ltd v. Sports Information Services Ltd [2020] EWCA Civ 1300 concerning the common law action for misuse of confidential information. Although the majority overturned the decision of the trial judge and found in favour of the defendant, this author will explain why the conclusion reached by the dissenting judge is the more compelling.

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

Collusive Litigation in the Early Years of the English Common Law: The Use of Mort D’Ancestor for Conveyancing Purposes c. 1198–1230

ABSTRACT The extent to which real actions such as mort d’ancestor were used collusively for conveyancing purposes in the early years of the English common law is subject to debate. This article first discusses why parties to a transfer of land might engage in collusive litigation, before surveying the existing literature on the question of how collusive suits can be identified, and the suggestions which have been made as to the prevalence of collusive litigation in the late-twelfth and early-thirteenth centuries. It then discusses a method which may be used to provide a more precise answer to this question, and employs this method to uncover the extent to which mort d’ancestor could have been used collusively in the period c.1198–1230. It concludes with a suggestion that this method could be used in relation to other early common law actions to further our understanding of litigation and conveyancing in the period.

Claiming the nullity of a substantive right in the levy of execution. The issue of unfair and unwritten terms

Abstract The present study aims at the extended interpretation of the legislative reformulation of the article 713 paragraph (2) Criminal Procedure Code through the Law no. 310/2018 on the amendments the Code of Civil Procedure, with emphasis on the possibility and, in concreto, on the admissibility to claim the nullity of the substantive law (also in respect of unfair or unwritten terms), but also other causes of ineffectiveness of the legal act constituting enforceable title, other than a court judgement. The problem of interpretation was generated by the addition of the phrase „including a common law action” at the end of the legal text which allows to invoke some de facto or de jure reasons relating to the substance of the law, in the levy of execution regarding another writ of execution than a court judgement, as long as the law does not provide another procedural way to annul it. The notion of “procedural action” being chosen and the identification of the action “of general jurisdiction” are going to generate non-unitary practice, so we opted for their explanation, but the present study aims mainly to argue that the legislative amendment does not affect however, the possibility to claim, in the levy of execution, of some causes of ineffectiveness of the legal act representing the enforceable title, such as absolute or relative nullity (total or partial) of general jurisdiction, but also when it is determined by the identification of unfair terms or terms deemed as unwritten, but also the possibility to claim the exception of non-execution of the contract, along with other permitted defences (legal compensation, statute of limitation, force majeure, causes of extinction of the claim, etc.). In particular, in the area of abusive clauses, although the debtor has the right to an action of general jurisdiction, the national judge will not be able to allow the inadmissibly of their claim by way of the levy of execution. The conclusions of the study are of the utmost importance and can contribute to the standardization of the judicial practice and, in terms of abusive clauses, to its harmonization with the jurisprudence of the C.J.E.U. (Court of Justice of the European Union).

Misappropriation of Personality: A Case for Common Law Identity Protection

There is a gap in the law in Australia and New Zealand. Australia, while ahead in many jurisprudential fields, is lagging behind in privacy law protection. New Zealand, although adopting two common law privacy torts, recently refused to develop a third privacy tort based on the American privacy tort of misappropriation of personality. In light of global technological advances, and in the age of social media, there is a need to develop the tort of misappropriation of personality to protect an individual’s right to identity privacy. This article addresses the merits of adopting the privacy tort of misappropriation of personality in the context of other common law actions and their shortfalls – and, in particular, why the tort of passing off is inadequate at protecting an individual’s right to identity privacy. Please note that a later version of this article was accepted for publication by the Torts Law Journal. This is a draft.

A Retrospective on the Woodhouse Report: The Vision, the Performance and the Future

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

The Right to Strike and the "Deadweight" of the Common Law

The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative enactment of the right to strike has taken the form of the "immunity approach" whereby strike action which meets the prerequisites for protection under the relevant statute receives immunity from common law action, while that which does not remains subject to potential liability at common law.This article analyses the adoption of the immunity approach in Australia under the relevant federal industrial relations statutes that have operated since 1993. Commencing with discussion of the hostility of the common law to collective action and the principle of legality, a presumption of statutory interpretation that presumes Parliament would not have abrogated common law rights without an express intention to do so, this article examines how the scope of protected industrial action in Australia has been consistently narrowed through hostile judicial interpretation. Such interpretation has been grounded in an approach which narrows the extent that common law rights are restricted by the statute and construes the statutory enactment of a right to strike as conferring a "privilege" on those industrial actors who remain "worthy" enough to access it.Considering the progressively negative impact on the right to strike of this approach, the argument in this article echoes calls made by Gordon Anderson in 1987 to reject the continued role of the common law in the regulation of industrial action. It is argued that the law of strikes in Australia should be codified. Such an approach should assist in downplaying judicial tendencies to interpret the right to strike as a privilege rather than as a necessary component of a functioning system of voluntary collective bargaining.

A Retrospective on the Woodhouse Report: The Vision, the Performance and the Future

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the vicitims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

Emergent Regulatory Systems and Their Challenges: The Case of Combination Medical Products

Where regulatory systems overlap, courts and scholars often focus on the undesirable aspects of the overlap — the ways in which systems conflict. One such context involves the regulation of prescription drugs and medical devices by the FDA’s premarket evaluation processes and by state common-law tort and products liability actions. FDA regulation and state common law are often described as separate, conflicting regulatory systems. This Article challenges that description by proposing a model in which FDA premarket evaluation and state common law function as a single regulatory system. This model brings order to the Supreme Court’s seemingly inconsistent medical products preemption cases, permitting the Court’s decisions in Medtronic v. Lohr, Riegel v. Medtronic, Wyeth v. Levine, PLIVA v. Mensing, and other cases to be understood as having created an emergent, coherent, multilayered regulatory system that calibrates the requirements imposed by each layer to the deficit in information about the risk of each product category. The model also provides a strong critique of scores of recent lower court preemption decisions involving “combination products,” a new product category whose members consist of both a new drug and a high-risk device. In finding common law actions preempted, these courts claim to have faithfully applied Riegel’s holding. But using the model developed here, it is clear that courts have disrupted the calibrated regulatory system, allowing thousands or millions of people in the United States to be exposed to dangerous products whose risks have not been well characterized. Using the combination products decisions as a cases study, the model also highlights the far-reaching effects that even small changes to any one input may have on the function of an emergent system and the field that it regulates.

Legal liability, good engineering judgment and adaptation

AbstractHurricane Harvey's devastation resulted in flooding and fire, as well as criminal indictments and civil litigation arising from the fire at the Arkema facility. This current litigation is just part of a recent trend in civil litigation, from citizen suits to common law actions, that is redefining causes of action and defenses in the context of climate change. This trend is creating greater concern among engineering and management professionals regarding litigation risk and potential liability arising from individual or managerial actions undertaken on behalf of an employer or client. These concerns are exacerbated by greater ability to forecast anticipated impacts from storm events in hurricane prone areas, which lends support to allegations that such events are foreseeable, and that engineers have a duty to prevent harm resulting from such events. In this context, chemical engineers should read the Chemical Safety Board's Arkema Final Report, especially focusing on the CSB's recommendations for further action by AIChE's Center for Chemical Process Safety, and brush up on the basics of professional liability.This article, developed specifically for AIChE members and presentation at the 15th Annual Global Congress on Process Safety, by an AIChE Fellow, senior environmental attorney and Fellow of the American College of Environmental Lawyers, does not constitute legal advice but provides a brief overview of legal process and concepts regarding professional liability, including classes of defendants such as plant managers, employees, licensed and unlicensed professionals, and independent contractors, types of civil and criminal claims, standing and other threshold issues, general defenses and immunities, and evidentiary issues at trial.

State Public Nuisance Claims and Climate Change Adaptation

This Article explores the potential for state public nuisance claims to facilitate adaptation, resource protection, and other climate change responses by coastal communities in California. The California public nuisance actions represent just the latest chapter in efforts to spur responses to climate change and attribute responsibility for climate change through the common law. Part II of this Article describes the California public nuisance lawsuits and situates them in the context of common law actions directed against climate change. Part III considers the preliminary defenses that defendants have raised and could raise in the California public nuisance lawsuits, including the existence of state common law in this context, separation of powers and the political question doctrine, displacement and preemption, and standing. Part IV considers the potential merits of the plaintiffs’ public nuisance claims under California law.

In search of a privacy action against breaches of physical privacy in Hong Kong

The focus of privacy laws in Hong Kong has always been on the use and dissemination of personal or confidential information, but a person’s privacy can also be intruded by unwanted watching or listening irrespective of whether information is collected or used. Despite an attempt to introduce two privacy torts by the Law Reform Commission of Hong Kong in 2004, there is no timetable as to when these two statutory torts be introduced. Recognition has been afforded for intrusions upon seclusion or solitude in a number of jurisdictions including New Zealand and the Canadian province of Ontario. In England, an intrusion tort has not been separately recognized, but the decision in Gulati v MGN confirmed that damages may still be awarded for an action for misuse of private information in instances where there is no disclosure or publication of the wrongfully acquired information. This article looks at the possibility of developing a common law action of privacy in Hong Kong which affords protection regardless of whether private information is acquired or published by drawing insights to the developments in New Zealand and England.

All the Queen's horses: statutory authority and HS2

This paper focuses on the potential impact of the statutory authority defence on HS2 once the line is put into operation. The defence was forged in the heat of the railway revolution. It protects operators from liability in nuisance in respect of certain harms resulting from exercising the statutory powers under which the scheme is authorised. However, the nineteenth century case-law established that the defence would only operate in respect of harms that are the inevitable consequence of using those powers. In common with its Victorian forebears, the HS2 project has been authorised by way of an Act of Parliament. Arguably, the HS2 Act is one of the longest, most detailed and highly scrutinised pieces of legislation in history. Nevertheless, it is argued that the scheme may cause uncompensated losses that are not inevitable. In this respect, common law actions may yet have an important role to play.

IS THERE STILL DEFAMATION BASED ON ADULTERY UNDER SOUTH AFRICAN LAW? A CRITICAL REVIEW J v J (4918 2012) [2016] ZAKZDHC 33 (unreported)

On 22 July 2016, the Durban High Court ruled (per Masipa J) that there is no longer an action for defamation founded on the publication of allegations of adultery against another person. The court solely based its finding on the earlier judgment of the Constitutional Court (CC) in DE v RH (2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC), hereinafter “DE”). Earlier, in June 2015, in the DE judgment, the CC had unanimously struck down delictual action for contumelia and loss of consortium damages founded on adultery. In annulling this action, the CC held that the common-law action for contumelia and loss of consortium was no longer viable and that it was incompatible with the Constitution of the Republic of South Africa, 1996. Still, a question that was never considered by the courts prior the judgment of J is whether the DE judgment has automatically abolished other delictual actions aimed at protecting personality rights, specifically an action for defamation, and in general, actions for invasion of privacy and impairment of dignity, all founded on allegations of adultery. In this judgment, the court held that in view of the decision of DE, “public opinion no longer considers adultery as tabooed... a statement to the effect that a person committed adultery can no longer convey a meaning with the propensity to define a person …”. Nevertheless, when the opportunity to definitively answer this question ultimately presented itself, albeit in relation to defamation of character (or the protection of reputation), the court in J failed to satisfactorily address this vital question. As it will be demonstrated in this contribution, the judgment of Masipa J in the J judgment does not appear to be legally sound. Primarily, no authority, other than the CC judgment of DE, is used to support the judgment of J. As a result, the judgment has not even succeeded in dealing with the question of defamation, let alone other actions (namely, privacy and dignity) – all founded on adultery. Instead, the judgment creates confusion whether the judgment of DE extends to an action for defamation, and possibly to privacy and dignity. The objective of this note is to provide a critical analysis of the high court judgment in J. The critique is undertaken in light of the reasoning in DE and other like judgments. It begins by setting out the background to the ruling of the high court, followed by a commentary on the judgment. The commentary is undertaken in the form of a comparative analysis between the approaches adopted by the court in DE and in J, highlighting the striking differences in approaches by the two courts, when they develop the common-law. In addition, the critique of the high court judgment is made in light of the interests that the judgment of DE sought to protect when it abolished an action in adultery, and those that were at issue in the judgment of J. Thereafter, a conclusion is provided. The stance that the note adopts is that the CC in DE did not repeal defamation action founded on allegations of adultery; and that even if such action were to be annulled privacy and dignity ought to remain, as of necessity.

The South African action for adultery - common law, customary law, and constitutional perspectives

South Africa's highest courts recently abolished the common law action for adultery. In 2014, the Supreme Court of Appeal abolished the action on the ground that the conduct did not satisfy the wrongfulness requirement for delictual liability In 2015, the Constitutional Court confirmed abolition of the adultery remedy on constitutional grounds. These judgments did not consider the customary law adultery actions. South Africa's customary law systems will retain their adultery remedies unless these actions are also abolished. The Supreme Court of Appeal's reasoning might not be applicable to the customary law actions. It is also not certain that the Constitutional Court's reasoning will necessarily have the outcome that customary law actions for adultery must be abolished on constitutional grounds. It might be possible to argue that the sexual delicts in customary law are integrally linked to traditional customary marriage and thus protected by the constitutional right to culture. However, this argument appears weak in the context of the adultery remedy, as that remedy is not linked to core features of traditional culture. Thus the customary law action for adultery should also be abolished on constitutional grounds.

The South African action for adultery - common law, customary law, and constitutional perspectives

South Africa's highest courts recently abolished the common law action for adultery. In 2014, the Supreme Court of Appeal abolished the action on the ground that the conduct did not satisfy the wrongfulness requirement for delictual liability In 2015, the Constitutional Court confirmed abolition of the adultery remedy on constitutional grounds. These judgments did not consider the customary law adultery actions. South Africa's customary law systems will retain their adultery remedies unless these actions are also abolished. The Supreme Court of Appeal's reasoning might not be applicable to the customary law actions. It is also not certain that the Constitutional Court's reasoning will necessarily have the outcome that customary law actions for adultery must be abolished on constitutional grounds. It might be possible to argue that the sexual delicts in customary law are integrally linked to traditional customary marriage and thus protected by the constitutional right to culture. However, this argument appears weak in the context of the adultery remedy, as that remedy is not linked to core features of traditional culture. Thus the customary law action for adultery should also be abolished on constitutional grounds.