scholarly journals The Trial of the Tormented Rowland Edwards

2019 ◽  
Vol 50 (3) ◽  
pp. 457
Author(s):  
David Collins
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Death Sentence ◽  
The Supreme Court ◽  
The Law

"The law should take its course". With this pronouncement, Lieutenant-General Sir William Jervois, Governor of New Zealand, sealed the fate of Rowland Herbert Edwards. The Governor's words conveyed his confirmation of the death sentence that had been imposed upon Edwards for the murder of his wife, Mary, following his trial in the Supreme Court at Napier.  This article explores the trial of Rowland Edwards and the questions that persist about the quality of the trial that resulted in Edwards' execution in circumstances where a verdict of not guilty by reason of insanity was reasonably available.

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?

2017 ◽  
Vol 48 (3) ◽  
pp. 471
Author(s):  
Victoria Stace
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Enrichment Analysis ◽  
The Other ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
The Law ◽  
Significant Change

This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establish a claim for contribution by one defendant against another, there is no need to find any greater degree of coordination between the liabilities other than that the plaintiff could pursue either defendant for its loss and either would be liable for it, in whole or in part. The underlying rationale is that by paying the plaintiff, the defendant who was pursued not only discharges itself but also discharges the other defendant's liability. If mutual discharge is established, the court then determines the amount of contribution based on what is just and reasonable in the circumstances. The Supreme Court's approach to the doctrine of equitable contribution, which is a significant change to previous law, bears similarities to the approach proposed in the leading text on unjust enrichment, raising the issue of whether a future claim for contribution could be approached using an unjust enrichment analysis.

Estoppel by Convention and Pre-Contractual Understandings: The Position and Practical Consequences

2011 ◽  
Vol 42 (3) ◽  
pp. 511
Author(s):  
Kristin Bunting
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Common Assumption ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Law

Recently, the House of Lords held in Chartbrook Ltd v Persimmon Homes Ltd that an understanding or common assumption reached by contracting parties in the course of their pre-contractual negotiations, including "an assumption that certain words will bear a certain meaning" can provide the basis for an estoppel by convention claim. This was reaffirmed by the New Zealand Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd. Both the House of Lords and the Supreme Court assumed that this was well established. Given that the issue was unsettled in England and with two divergent lines of authority in Australia, the House of Lords and Supreme Court should not have assumed this. In light of this development in the law, it is also argued that where the evidence proves that the parties established an understanding as to the meaning of a term in a proposed contract, then surely that is the meaning of that term, as a matter of interpretation. In addition, allowing consideration of pre-contractual negotiations to prove an estoppel by convention has undermined the rule that pre-contractual negotiations are inadmissible as an aid to interpretation of a contract.

scholarly journals GUIDELINES FOR PRESIDENTING WOMEN FACING THE LAW IN DIVORCE WITH JUSTICE BASED IN KEBUMEN RELIGION COURT (IMPLEMENTATION OF PERMA NO. 3 YEAR 2017)

2020 ◽  
Vol 6 (2) ◽  
Author(s):  
Trubus Wahyudi
Keyword(s):  
Supreme Court ◽  
Gender Equality ◽  
Human Dignity ◽  
Legal Certainty ◽  
Gender Perspective ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
Religious Courts

An effort to improve the quality of justice with a gender perspective on July 11, 2017 the Supreme Court of the Republic of Indonesia has issued PERMA Number 3 of 2017 concerning Guidelines for Judging Women Against the Law. In line with this study, researchers assume specifically the implementation of Perma Number 3 of 2017 is related to women dealing with law in divorce cases related to the protection of women's rights (ex-wife) along with children's rights due to divorce based on justice. the implementation of PERMA No. 3 of 2017 in the field of litigation duties in the Religious Courts. In the end, judges in trying women's cases dealing with the law must reveal factors based on principles: Appreciation for human dignity, Non-discrimination, Gender Equality, Equality before the law, Justice, Utilization, for the sake of legal certainty.

The Judicial Legacy of Salmond J in New Zealand

2008 ◽  
Vol 38 (4) ◽  
pp. 797
Author(s):  
Peter Spiller
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Contract Law ◽  
Reference Points ◽  
The Supreme Court ◽  
Human Reality ◽  
The Law

John Salmond was a judge of the Supreme Court of New Zealand during the years 1920-1924. This paper examines the nature of Salmond J's contribution to judicial precedent in New Zealand in five areas of the law: administrative; family; procedural; property; and contract law. Salmond J's judgments in these areas amply justified his reputation as an outstanding jurist. They were characterised by balance, fairness and a keen sense of human reality, and were presented with admirable structure and clarity. Of particular note is Salmond J's interpretion of the significant body of legislation passed from 1908 onwards. Fortified by his experience of legislative drafting at the time when this legislation was passed, Salmond J confidently supplemented the legislation with case law based on the legislative intent. The overall effect of Salmond J's judicial work was that, during the eight decades after his death, his judgments provided his successors on the bench with apposite language, frameworks and reference points in the cases before them.

scholarly journals Tracking the Pendulum Swing on Legislative Entrenchment in New Zealand

2019 ◽  
Vol 41 (2) ◽  
pp. 207-225
Author(s):  
Timothy Shiels ◽  
Andrew Geddis
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Pendulum Swing ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Law ◽  
Near Term ◽  
Over Time ◽  
The Way

Abstract When New Zealand’s Parliament legislates to the effect that law on some particular matter may only be enacted using a mandated procedure, can the New Zealand judiciary enforce this provision against a future Parliament that fails to comply with it? Following the Supreme Court’s recent refusal to conclusively decide this question, we examine why it still remains controversial in New Zealand. We first set the issue in a wider constitutional framework, explaining how such judicial enforcement requires considering the nature of parliamentary sovereignty and the role of the courts in defining this. The way in which the matter has been addressed over time in New Zealand and elsewhere—the pendulum swing of constitutional understandings, to use the Supreme Court’s term—is then outlined. We draw on this analysis to examine why the Supreme Court felt unable to resolve the particular question of enforceability, while also raising an as-yet unexamined question as to how such enforcement implicates the statutorily guaranteed parliamentary privilege of non-interference in the internal affairs of the House. We conclude that because it is unlikely this issue will come before the courts again in the near term, continued uncertainty over the law in this area is set to continue.

scholarly journals The functions and failings of the Abortion Supervisory Committee: A Critique of the New Zealand Supreme Court Decision in Right to Life New Zealand Inc v The Abortion Supervisory Committee

2021 ◽  
Author(s):  
◽  
Emma Jane Smith
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Right To Life ◽  
The Supreme Court ◽  
Majority Judgment ◽  
The Law ◽  
Minority View

<p>In 2012 the Supreme Court of New Zealand ruled on Right to Life New Zealand Inc v The Abortion Supervisory Committee. The case was brought by way of application for judicial review, with Right to Life New Zealand Inc arguing that the Supervisory Committee had made an error of law in interpreting its functions under the Contraception, Sterilisation, and Abortion Act 1977. A majority of the Court held that the Supervisory Committee does not have the power to review decisions made by certifying consultants in individual cases. However, both the text and the purpose of the Act support the minority view, that the Supervisory Committee must seek information about individual cases in order to fulfil its functions under the Act. It appears that the majority judgment was motivated by policy concerns due to an arguable change in Parliamentary intent since 1977. The majority should have acknowledged the policy values that guided its decision or accorded with the minority view rather than straining the statutory wording. Either of those actions would have better prompted Parliament to reform the law to reflect modern circumstances.</p>

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals The functions and failings of the Abortion Supervisory Committee: A Critique of the New Zealand Supreme Court Decision in Right to Life New Zealand Inc v The Abortion Supervisory Committee

2021 ◽  
Author(s):  
◽  
Emma Jane Smith
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Right To Life ◽  
The Supreme Court ◽  
Majority Judgment ◽  
The Law ◽  
Minority View

<p>In 2012 the Supreme Court of New Zealand ruled on Right to Life New Zealand Inc v The Abortion Supervisory Committee. The case was brought by way of application for judicial review, with Right to Life New Zealand Inc arguing that the Supervisory Committee had made an error of law in interpreting its functions under the Contraception, Sterilisation, and Abortion Act 1977. A majority of the Court held that the Supervisory Committee does not have the power to review decisions made by certifying consultants in individual cases. However, both the text and the purpose of the Act support the minority view, that the Supervisory Committee must seek information about individual cases in order to fulfil its functions under the Act. It appears that the majority judgment was motivated by policy concerns due to an arguable change in Parliamentary intent since 1977. The majority should have acknowledged the policy values that guided its decision or accorded with the minority view rather than straining the statutory wording. Either of those actions would have better prompted Parliament to reform the law to reflect modern circumstances.</p>

Sign in / Sign up

Export Citation Format

Share Document