New Zealand Law Review - Published Issues - 2002 - Issue 4

Issue 4
 

Table of Contents

  • Ideas on the Purpose of Civil Procedure
    By Andrew Barker

    Civil procedure, and our system of civil justice in general, is often seen as a system in crisis; a system that is failing to achieve its central purpose (whatever that may be). Because of this, it has in recent times been a popular area for law reform. In this article, Andrew Barker argues that what has been lacking in that process of reform has been any real attempt to develop a clear understanding of what is the purpose of our system of civil procedure, and how the particular reforms proposed would further that purpose. To assist in developing a more critical understanding of our system of civil procedure, the author considers four of the leading theories that have been suggested for the purpose of civil procedure. He also considers in general terms the implications for the content of such a system these different theories may raise.

  • Damages for Bad Faith Denial of Insurance Claims in Canada
    By Craig Brown

    In recent years Canadian courts have followed the lead set by United States courts in awarding punitive and aggravated damages against insurers for "bad faith" denial of insurance claims. Professor Brown explains that, although this development is a challenge to freedom of contract, the Canadian courts have traditionally exercised restraint in exercising powers to intervene in contractual relations. He further locates the recent development within the context of the concept of good faith that has long been recognised as underpinning insurance law.

  • The Blood Transfusion Wardship: Cases Balancing the Competing Interests in a Free and Democratic Society
    By Warren P Cathcart

    The blood transfusion wardship cases test the fibre of the legal principles that are relevant to state intrusion into parental health-care decisions. The leading case, Re J (An Infant), has become a significant decision for Bill of Rights methodology. In Re J the Court of Appeal, acting on the premise that the case presented a conflict of rights between the parents and the child, defined the prima facie scope of the s 15 parental right so as to avoid recourse to s 5. The author challenges the Court's premise that there was such a conflict, and contends that a balance may be struck between the competing legal interests only if the s 5 contextual model is employed. It is contended that, at the critical fact-finding trial, s 5 mandates a minimum level of state compliance with the observance of substantive and procedural safeguards. The author analyses each relevant safeguard, and explores the profound legal issues implicated.

  • Formalism's Hollow Victory
    By David Dyzenhaus

    This article examines the debate about the legitimacy of judicial review in the United Kingdom, particularly the issue whether the ultra vires doctrine is the basis for judicial review. That doctrine is nested in Dicey's account of the separation of powers in terms of formally distinct roles for Parliament, the judges, and the executive. This account is dominant in the debate, despite the fact that it is utterly hollow, and thus incapable of providing guidance to judges and others. In fact, its very hollowness is what allows the two main camps in the debate, those who say that the ultra vires doctrine is the basis of judicial review and those who say the common law is, to disagree vehemently about the basis for review while agreeing in most respects that what judges do on review is legitimate. One reason for the dominance of the formal account is that it seems to track best distinctions considered to be central to administrative law between review and appeal, and between process and substance. However, these distinctions are themselves problematic. These problems, as well as formalism's hollowness, can be explained only when one sees that public lawyers in the United Kingdom work in the shadow of two rival traditions: that of the common law and that of Benthamite legal positivism.

  • Employment Law
    By Paul Roth

  • Local Government and Resource Management
    By Kenneth Palmer

  • Tort
    By Stephen Todd

New Zealand Law Review Published Issues