Zealand Courts Research Articles

Punitive Damages in Unfair Dismissal Cases: Lessons from Malaysia and New Zealand

Employers tend to dismiss employees without proper grounds, in bad faith or fail to follow procedure prescribed under law. An employee that has been dismissed unfairly can bring an action against the employer for unfair dismissal. Damage is the most sought remedy of the employee for unfair dismissal claims. Punitive damage is a form of monetary remedy awarded by the court in addition to the actual damage to the aggrieved party. Punitive damage is awarded as a punishment to the wrongdoer. Punitive damage has become the remedy in both Malaysia and New Zealand. The objective of this study is to analyse the punitive damage awarded by the Malaysian Industrial Court and New Zealand Court in unfair dismissal cases. This study employed a qualitative method with reference to journal articles, relevant statutory laws and case laws on unfair dismissal cases with punitive damage as an award. The findings show that punitive damages in unfair dismissal cases have been awarded by the Malaysian industrial court and New Zealand court against employers on the grounds that the dismissals were made under bad faith. This study is significant as it expands the application of punitive damage in unfair dismissal cases and improve the system’s legal certainty.

Trans-Tasman Challenge

The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.

The Increasing Need for Cultural Experts in New Zealand Courts

New Zealand’s unique demography, with a large indigenous Māori population and a national population which is also increasingly superdiverse, means that New Zealand courts need more assistance from cultural experts if “the common law [is to] serve all in society”, as our Chief Justice recently said in the Supreme Court (Peter Hugh McGregor Ellis v R (Ellis) 2022: para 174). This paper examines two recent Supreme Court decisions: Ellis and Deng v Zheng (2022), which explain the increasing need for cultural experts in New Zealand courts to determine what tikanga (Māori customs and practices) as the first law of New Zealand is and how it applies, as well as to ensure equal access to justice despite cultural and linguistic diversity. The greatest need for cultural experts arises from the majority of the Supreme Court’s acceptance that tikanga was the first law of Aotearoa/New Zealand. There has been ad hoc (albeit growing) incorporation of tikanga and Te Tiriti o Waitangi (Te Tiriti) in various statutes, and no entrenchment in a supreme constitution, but even without statutory incorporation, the courts have interpreted statutes to take account of tikanga values and interests and to be consistent with Te Tiriti to the extent possible. Lawyers and judges need to acquire a base level of tikanga knowledge and cultural competency to be able to identify when a deeper level of tikanga/cultural expertise is needed, and cultural experts need to be called on to provide evidence to assist the Court.
 This is important (not only to ensure that justice is done in particular cases) but to maintain broader constitutional legitimacy. This includes acknowledging significant cultural differences in the application and development of the common law, in relevant cases. Pluralism is an important value which may be relevant to filling the gaps in the common law created by new situations that indigenous and superdiverse cultures and languages give rise to (Chen, forthcoming 2024; see also Palmer & Ling 2023).
 Keywords: tikanga; New Zealand; cultural experts; evidence; statutory interpretation; development of the common law.

Novel climate tort? The New Zealand Court of Appeal decision in Smith v Fonterra Co-operative Group Limited and others

In Smith v Fonterra the New Zealand High Court and Court of Appeal struck out all causes of action in proceedings seeking orders that seven New Zealand companies cease direct and indirect greenhouse gas emissions by 2030 grounded in the three distinct claims of negligence, public nuisance and a proposed novel tort referred to as “breach of duty”. The Court of Appeal's judgment is under appeal before the New Zealand Supreme Court. This commentary seeks to open up discussion around the reasons given for the various aspects of the judgment. In particular the commentary puts the view that there is scope for the creation of a novel common law climate tort. This tort must be forward-looking and preventive in orientation and may differ fundamentally from existing torts.

Public Trust v Kain: New Zealand courts address the relevance of a settlor’s wishes and of distributions from separate, related trusts in administering a trust

Abstract The New Zealand High Court and Court of Appeal recently considered an application by a trustee for directions as to the administration of two high-value family trusts. The application raised two issues of general interest. First, the relevance of a settlor’s wishes. The courts held that it is necessary for a trustee to read and understand a settlor’s statement of wishes. A trustee is then entitled to take those wishes into account substantively in its decision-making, but it is not required to do so. The trustee must exercise its independent judgement within the terms and purpose of the trust. This applies also to a statement of wishes made by the settlor subsequent to the settlement of the trust, with such a later statement tending to supersede any earlier statement. Second, the courts considered the relevance of distributions from separate, related trusts. The courts held that a trustee is entitled, but not required, to take into account in administering the trust any benefits the beneficiaries have received or may receive from separate trusts established by the same settlor.

Price Squeezes in New Zealand Competition Law: Goodbye to the Efficient Component Pricing Rule and the Equally Efficient Competitor

One of Professor Prebble's many achievements is that he is a fellow of the Law and Economics Association of New Zealand. This achievement recognises his contribution to the economic analysis of law. The first field to which scholars applied economic analysis of law was competition law. This article examines a particularly contentious area of New Zealand's competition law; viz the Efficient Component Pricing Rule and s 36 of the Commerce Act 1986. This rule first arose in Clear Communications Ltd's dispute with Telecom Corp of New Zealand Ltd. The Privy Council endorsed charging on the basis of the rule – saying its use did not breach s 36. Many years later New Zealand's Court of Appeal held Telecom's use of it amounted to a breach of s 36 in the context of price squeeze litigation. This article examines how the Court of Appeal concluded this. It looks at the economics of price squeezes and the rationale behind the Efficient Component Pricing Rule. It discusses United States law on price squeezes and shows how that law is hostile to finding competition law liability for price squeezes. It outlines the New Zealand cases and analyses the reasoning of the cases – particularly the Court of Appeal price squeeze case. It concludes that in holding use of the rule was a breach of s 36 the Court has eliminated the equally efficient competitor standard test for monopolisation and interred the Efficient Component Pricing Rule. It also argues that proscribing price squeezes is worthwhile.

The Presumption of Advancement in New Zealand: A Confused and Inconsistent Existence

This project surveys New Zealand court cases in the last 20 years (2000–2020) concerning monetary or gratuitous land transfers from parents to their children ("parent-child transfer") and examines New Zealand court approaches to the presumption of advancement concerning parent-child transfers. This article examines the status of the presumption in New Zealand, discusses the conceptual understandings of the presumption as revealed in the approaches taken by courts, and investigates the courts' approaches concerning the categories of persons who are subject to the presumption, namely mothers, adult children and sons- or daughters-in-law. This article highlights the weakened status of the doctrine and the confused and inconsistent approaches by courts in engaging (or declining to engage) the doctrine and calls for changes to clarify the understanding of the doctrine and to establish a more consistent approach.

Novel Climate Tort? The New Zealand Court of Appeal Decision in Smith v Fonterra Co-Operative Group Limited and Others

Novel Climate Tort? The New Zealand Court of Appeal Decision in Smith v Fonterra Co-Operative Group Limited and Others

Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand

In Aotearoa New Zealand, the state legal system is increasingly drawing on aspects of Māori law. Recent decisions suggest that the courts are willing to consider Māori law as a source of New Zealand law. This marks a change from earlier approaches which recognised discrete customary practices as customary law. Questions of state recognition of customary law have tended to focus attention on common law tests and so obscure processes of the Indigenous legal system, the sources of Indigenous law, and Indigenous forms of legal reasoning and communication. This article suggests that by focusing instead on understanding the application of Māori law within a fuller cultural context, the New Zealand courts may be better able to reveal and understand the Indigenous legal principles and processes at work. This would include engaging with a different range of legal sources, including working with Māori stories as legal texts, to make visible aspects of Indigenous law that can help to drive developments in the state legal system.

Te Tiriti o Waitangi, the UN Declaration on the Rights of Indigenous Peoples and Constitutional Change: What is the Role of Judges and Adjudication?

My focus is on realising tino rangatiratanga/mana motuhake for Māori under te Tiriti o Waitangi, sometimes understood as New Zealand’s founding constitutional document, and Indigenous peoples’ self-determination in the Declaration. I am interested in the ways in which states recognise Māori authority, often expressed through the practice and application of tikanga Māori, or Māori law. To achieve greater Indigenous peoples’ self-determination, at least to the extent required by te Tiriti o Waitangi and the UN Declarartion, would require constitutional change. So the topics overlap. I have 3 foci: 1. Adjudication and interpretation of the UN Declaration, including our right to self-determination, and Indigenous women’s rights at the international level; 2. Recent recommendations for constitutional change in Aotearoa/New Zealand: based on the Declaration and te Tiriti o Waitangi; 3. How New Zealand courts, and possibly other state courts, should address Indigenous authority and sovereignty. If there are any overarching theses, it would be that: - Judges have an important role in interpreting Indigenous peoples’ rights under the UN Declaration and in te Tiriti consistently with Indigenous peoples’ interpretations i.e., not deferring exclusively to state interpretations – from the Executive, legislature – or their own without reference to Indigenous peoples’ voices. - Judges need not feel they are undermining the state or their own authority when recognising and realising Indigenous peoples’ self-determination, or tino rangatiratanga, or mana motuhake.

Discerning Commercial and Economic Reality: Applying the GAAR to Frucor

Even though the New Zealand courts have been interpreting this legislation for over 130 years, there is no doubt that applying the anti-avoidance rules is a difficult task. This is why it is common for judges to come to different conclusions or even arrive at the same conclusion through a different reasoning process. In Frucor Muir J so rightly observed, “Benchmarking against parliamentary intention, for all the appropriateness of the exercise, can be an elusive quest.” This article looks at the development of the general anti-avoidance rule in New Zealand in the specific context of the impending appeal of the Frucor case from the Court of Appeal to the Supreme Court. This article begins with an exposition of the test in New Zealand before highlighting the significance of the approach in Ben Nevis from an economic substance perspective. In the light of this analysis, it then examines how the law, specifically the Parliamentary contemplation test, should be applied in expenditure related tax avoidance cases. The conclusion reached is that the Parliamentary intention behind part D of the Income Tax Act is to provide a deduction for taxpayers. This deduction, however, ought not to be available when the expense, viewed in a commercially and economically realistic way, is not in economic substance borne by the taxpayer. This is an example where the line between acceptable tax planning and unacceptable tax avoidance is crossed and the analysis above therefore suggests the Court of Appeal were right to consider it in the latter category of transaction. The nature of tax planning and tax avoidance necessitates an approach from Parliament that, in the hands of the judges, is both flexible and responsive. After more than a decade since the Supreme Court delivered the Ben Nevis judgment, one can see that the New Zealand legislation and case law is robust, challenging and effective against aggressive tax avoidance behaviour. On balance, despite the lack of commercial certainty, this is desirable.

New Zealand Courts and COVID-19: Navigating the Tensions Between Necessity, Legality and the Rule of Law

New Zealand Courts and COVID-19: Navigating the Tensions Between Necessity, Legality and the Rule of Law

Expert Evidence in Support of Te Kaahui o Rauru

The precautionary principle in s 61 of the EEZ Act appears short and simple and – being relatively young – without any history or baggage to encumber its interpretation and application. However, despite the Act being only a few years old, and there having been few chances to apply it, there is indeed a number of important matters to take into account in its application. The principle itself has a lengthy history at international law, and it has been applied by New Zealand courts for many years under different laws and policies. There is thus plenty of material for useful comparison with different formulations of it. One of the most important factors to take into account is the subject matter it is being applied to. Application in the marine environment has been widely recognised as requiring a stronger precautionary approach than other settings. This is primarily due to the fact that less is known about the marine environment itself, with more reliance for predictions of future effects on scientific modelling that is necessarily incomplete. They may represent the best scientific knowledge available today, but that itself is incomplete. Thus, legal formulations of the principle requiring stronger environmental protection have been chosen for the marine environment worldwide, and including in the EEZ Act. The key elements to work through in applying s 61 to any given set of facts are detailed in this submission.

It Ain't Necessarily So: Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd and the Reasons for Reforming s 36 of the Commerce Act

The Government has indicated it is going to amend s 36 of the Commerce Act 1986. Its reasons are that s 36 fails to capture sufficient anticompetitive conduct, is difficult and complex to apply and makes litigation unpredictable. The Government proposes a substantial lessening of competition test which it claims will capture more conduct, make analysis more straightforward and provide a source of Australian authority for New Zealand courts. This article uses an Australian Federal Court case, Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd, to show that the claims for reform are overstated and in some cases incorrect. It argues the foundations of the case for reform of s 36 are wobbly and infirm.

Nothing to See Here? The Extension of Parent Company Liability in James Hardie Industries plc v White

In James Hardie Industries plc v White, the New Zealand Court of Appeal considered circumstances where a parent company could be directly liable for defective products produced by its subsidiary while upholding the principles behind separate corporate personality. The Court passed off the case as an unexceptional development in the law, based on an application of ordinary tort law principles and supported by decisions from overseas jurisdictions. However, the Court neglected to consider the underlying policies of the cases it cited, ignored important distinctions between them and the present case and did not inquire into whether they were in fact relevantly applicable. In fact, the Court extended parent company liability for the acts and omissions of its subsidiary far beyond what courts in overseas jurisdictions have held. In doing so, the Court implicitly lifted the corporate veil and failed to acknowledge the impact such a finding of liability would have on the corporate form.

Depriving Right-Holders of Fundamental Rights and Freedoms Too Easily? Low Volume Vehicle Technical Association Inc v Brett and the Issue of Waiver under the New Zealand Bill of Rights Act 1990

In Low Volume Vehicle Technical Association Inc v Brett, the New Zealand Court of Appeal grappled with the rare issue of whether a person can waive their right to freedom of expression under the New Zealand Bill of Rights Act 1990 (NZBORA). The Court, responding in the affirmative, concluded that Mr Brett had waived this right. This article critiques that decision. While the Court was right to find that Mr Brett could waive his right to freedom of expression, it failed to scrutinise the waiver to ensure that this relinquishment of a protected right in fact reflected Mr Brett's free choice. Had the Court considered a different approach to analysing Mr Brett's waiver – at the prima facie breach stage, instead of under s 5 of the NZBORA – proper scrutiny would have been achieved. That approach would have ensured that Mr Brett was not so easily deprived of his right.

New Zealand's Zombie Defamation Survival Guide: Solving the Grave State of Defamation Law with a Single Publication Rule

Zombie has long been the term used to describe the application of the multiple publication rule to defamation claims. While in New Zealand a defamation claim can only be brought within two years of publication of the defamatory statement, the multiple publication rule means that every time a new person accesses the defamatory material, there is a new publication. This renders the two-year limitation effectively redundant for online publications. Although both Australia and Canada take the approach used by New Zealand courts, the United Kingdom has followed the approach of the United States in adopting the single publication rule. The single publication rule means that publication occurs from the very first publication only. This paper argues that New Zealand should follow the United Kingdom in adopting the single publication rule to protect publishers from ostensibly indefinite liability. Firstly, this paper will outline the rule in New Zealand and how it applies. It will then compare this to the single publication rule as applied in the United States, pointing to the United Kingdom as an example of a jurisdiction which has implemented the single publication rule through statute. The paper will then highlight the problems with the multiple publication rule and why New Zealand should change, including examining the unjust consequences that could arise from failing to change the rule to meet modern technological advancements, how such change would relate to the New Zealand media law climate and close potential gaps in our system and other policy considerations. Finally, it will assess whether the New Zealand courts are ready and willing to accept a single publication rule, including considering why Australia and Canada have not followed the approach of the United Kingdom.

Taking a Side: The Case for Neutral Reportage

In defamation law, the repetition rule states that someone who publishes a defamatory statement is no less liable than the person from whom it originated. “Neutral reportage” is a controversial defence to this long-standing rule. Last year in the case of Durie v Gardiner, the New Zealand Court of Appeal was unable to reach a unanimous agreement on how neutral reportage should be incorporated into the law, if at all. This essay considers the merits of the opinions in Durie, and examines the Court’s decision in the light of the history and purpose of the reportage doctrine. This essay contends that while the defence has been controversial, its existence is justified in New Zealand law. It then argues that while the majority were right to find that a reportage defence should exist, they erred in choosing to incorporate it into the responsible communication defence. This is due to reportage’s distinct doctrinal basis, and the inconsistencies in reconciling a responsible communication defence with one of reportage. Lastly, this essay outlines how a standalone defence of reportage could be defined in order to achieve doctrinal consistency and the careful balancing of rights that the law requires.

Implied Representations in Derivative Transactions after Property Alliance Group Ltd v The Royal Bank of Scotland Plc

The London Interbank Offered Rate (LIBOR), the most important figure in finance underpinning USD350 trillion-worth of financial products, and other benchmark rates were manipulated between January 2006 and March 2012 by leading international banks. Recent litigation concerning LIBOR-referenced transactions, which were concluded during this period of benchmark rate manipulation, has opened the door to implied misrepresentation claims against banks involved in the manipulation. This essay outlines and critically analyses the decisions of the English Court of Appeal in Property Alliance Group Ltd v The Royal Bank of Scotland Plc and the English High Court in Marme Inversiones 2007 SL v Natwest Markets Plc in order to construct a framework for bringing an implied misrepresentation claim in the context of benchmark rate manipulation under English law. While these decisions demonstrated that the courts are willing to imply a representation from a bank that it had not manipulated a benchmark rate, both decisions considerably limited the scope of such a representation with the effect that the falsity of the representation is difficult to prove. This essay also examines the impact of the developments in the English law on New Zealand, arguing that, although the law of misrepresentation has been largely reformed, the New Zealand courts are likely to look to the English law if a similar case arises before them.

Indeterminación del estatus jurídico del migrante por cambio climático

Las migraciones poblacionales transfronterizas a causa de los impactos del cambio climático antropogénico son una realidad que requieren del reconocimiento, más que doctrinario, jurídico, en el ámbito del Derecho Internacional. La variedad de acepciones y categorías doctrinales (no vinculantes) analizadas en este artículo reflejan la falta de enfoque del problema y los vacío legales a afrontar. Actualmente no existe consenso sobre un concepto legal e unívoco que defina a las personas que se desplazan por cambio climático, su estatus jurídico es indeterminado, así como el instrumento normativo aplicable que proporcione la necesaria protección jurídica internacional, que les asegure a los migrantes una reubicación planificada fuera de sus países de origen y que garantice el respeto de sus derechos. Las consecuenias legales ante la falta de estatus jurídico son reflejadas en este estudio al analizar el caso del señor Ioane Teitota ciudadano de Kiribati, quien, ante las Cortes de Nueva Zelanda, solicitó el estatus de refugiado debido a las dificultades que enfrenta su país con respecto a los impactos del cambio climático, especialmente por la elevación del nivel del mar. En este contexto, el presente trabajo destaca la importancia de la adopción de un concepto jurídico que reconozca al migrante por cambio climático en el ámbito del Derecho Internacional.