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 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 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 Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

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 The Pre-History of the English Laws Act 1858: Mcliver v Macky (1856)

2010 ◽  
Vol 41 (3) ◽  
pp. 361 ◽  
Author(s):  
David V Williams
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
British Empire ◽  
Court Case ◽  
General Application ◽  
South Wales ◽  
The Supreme Court ◽  
Supreme Court Case ◽  
History Of ◽  
English Law

The English Laws Act 1858 declared the reception date for the arrival of English law and statutes 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 1825 or 1828. The Supreme Court case that so decided was McLiver v Macky (1856). The New Zealand Law Foundation's 'Lost Cases Project' ascertained that this judgment was fully reported in an Auckland newspaper – The Southern Cross. This article examines the facts of the case and the reasoning of Acting Chief Justice Stephen as to the basis for British sovereignty in New Zealand and the application of English law to British subjects here.

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.

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