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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. [ABSTRACT FROM AUTHOR]

The threshold requirement of reputational harm for bringing a defamation claim needs clarification. Although recent case law shows that a threshold exists, precedents conflict as to what exactly the threshold requires, and who bears the burden of proof. There is further judicial disagreement on whether the principle that defamation claims can be struck out if no real and substantial tort has been committed, the Jameel principle, applies in New Zealand. This article suggests that both the harm threshold (more accurately described as a ''tendency to cause harm'' threshold, as it does not require proof of actual harm) and the Jameel principle have a valuable place in New Zealand's defamation law and their application requires endorsement and clarification at appellate level. Further, this article highlights that the principles are conceptually distinct and their fusion is undesirable in New Zealand. [ABSTRACT FROM AUTHOR]

The thesis of this article is that the overarching objective of statutory interpretation is to "make the Act work" as the Court of Appeal held in Northern Milk. This requires a common sense and practical approach. The article demonstrates the thesis by reference to subsequent Court of Appeal decisions and the complementary legislation establishing the Law Commission and the Parliamentary Counsel Office. The issues raised by the Law Commission's recently reactivated reference on the law of contempt of court are considered by way of example. The conclusion is that the Northern Milk approach remains apposite. [ABSTRACT FROM AUTHOR]

It is time for New Zealanders to decide whether we want to allow patents over isolated human genes. In making this decision, we should take heed of the pitfalls other jurisdictions have encountered in this area. In this article, I determine the approach New Zealand intellectual property law should take to the patenting of isolated human genes, with reference to the arguments and issues raised by the Myriad Genetics litigation in the United States of America. I conclude that a nuanced approach should be adopted. Isolated human genes are not patentable subject-matter from a legal perspective; however, patents in the field of gene therapeutics should be allowed on policy grounds. [ABSTRACT FROM AUTHOR]

At the time of writing, the Evidence Act 2006 has been in force for almost five years, but in several respects it has failed to fulfil its mandate of clarifying and simplifying New Zealand's rules of evidence. One area where this failure can be seen as most evident is in respect of evidence of prior complaints of sexual offending. Here, the rule governing previous consistent statements in s 35(2) of the Act radically changes the previous common law position, enacting entirely unfamiliar technical requirements in its place. This article provides thorough analysis of the problems with s 35(2) through an analysis of cases where the Supreme Court has struggled to interpret and apply the provision. Ultimately the article suggests that a less technical reform will provide the necessary simplicity and certainty that is currently absent from the provision. [ABSTRACT FROM AUTHOR]

This article evaluates the varying ways in which the courts of New Zealand and Canada respond to arguments that government procurement exercises are subject to the principles and remedies of public law. While conceding that context is critical and that there are many, often competing considerations that are relevant in the evaluation of such arguments, the author contends that the courts in both countries should at least on occasion be open to the availability of public law remedies for misfired government procurement exercises, and, more importantly, whether by judicial review or civil action, to the deployment of public law principles in the assessment of the procedural and substantive components of government procurement. More generally, the author warns against the movement in both countries in the direction of the assimilation of public procurement within existing principles and remedies of private tendering law. [ABSTRACT FROM AUTHOR]

In Sloman v The Governor and Government of New Zealand the plaintiff attempted to sue the New Zealand Government for failing to make good on emigration contracts concluded in Europe. This article analyses the decision in Sloman, that the New Zealand government could not be sued in English courts, both within its own historical context and with respect to 19th century concerns over the general inability of the Crown to be sued. The article points to archival documents which show that the New Zealand Government itself was concerned, in the wake of the earlier loss of the Cospatrick, as to its own ability to recover the passage monies it had paid, and whether that recovery might be prevented by a lack of legal personality in the English Courts. The article concludes that while Sloman is an important case in its own right, there is also a need for greater investigation of both the practical and theoretical legal difficulties that faced the New Zealand Government in its development and immigration projects of the 1870s. [ABSTRACT FROM AUTHOR]

The English Laws Act 1858 declared the reception datefor the arrival of English law and stat utes of general application in New Zealand to be 14 January 1840. This Act was passed because the New Zealand Supreme Court had decided the Wills Act 1837 (UK) did not apply in New Zealand. New Zealand was annexed to the British Empire as a dependency of New South Wales with a reception date in /825 or 1828. The Supreme Court case thai so decided was McLiver v Macky (1856). The New Zealand Law Foundation ~ `Lost Cases Project ascertained thai this judgment was fully reported in an Auckland newspaper - The Southern Cross. This article examines the facts of the case and the reasoning ofA cling ChiefJustice Stephen as to the basis for British sovereignty in New Zealand and the application of English law to British subjects here. [ABSTRACT FROM AUTHOR]

This article suggests that an examination of leading cases should be extended beyond an exploration of the role that a decision has played in settling an area of law. It is also necessary to examine the social and historical implications and underpinnings of a decision. Further, a concentration on leading cases alone is too narrow a focus. The study of the ordinary run of cases can say much about the law and its relationship to society and about wider trends in society. The article illustrates these themes with a discussion of a number of leading cases in New Zealand and also of the work done by the author on criminal cases in Rouen during the French Revolution. [ABSTRACT FROM AUTHOR]

This article considers one of the key procedural innovations of the first Supreme Court rules - the making up of the issue - through the lens of the Supreme Court decision in Pharazyn v Smith (1844). Making up the issue referred to the process whereby pleadings were drafted in conference with the judge hearing the case. This contrasted with the English system of the time of a series of written exchanges between parties designed to identify the disputed issues of fact and law, and in which the role of the judge was essentially a passive one. Through Pharazyn v Smith we can see one of the ways in which judges sought to modify English laws to the circumstances of the colony, as well as the judges' role in shaping litigation, and hence law, in the infant colony. [ABSTRACT FROM AUTHOR]

This note considers the case of R v Margaret Reardon. The case is of historical importance as she was the only woman to ever be sentenced to transportation in New Zealand. She was involved in three Supreme Court cases during 1848; as victim, witness and accused. Her case is indicative of how women were dealt with by the courts in the early colony. [ABSTRACT FROM AUTHOR]