scholarly journals Unresolved Controversies in Suing for Negligence of Tax Officials: Canadian and Australasian Insights and a Primer for Policy Makers' Consideration

2020 ◽  
Vol 68 (2) ◽  
pp. 439-476
Author(s):  
John Bevacqua
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Case Law ◽  
Policy Makers ◽  
The Common ◽  
The Right

There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.

General Limitations on the 'Right to Fire' in New Zealand

1982 ◽  
Vol 24 (4) ◽  
pp. 517-534
Author(s):  
A.J. Geare
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Current Situation ◽  
Court Decisions ◽  
Statutory Protection ◽  
The Common ◽  
The Right

This paper examines the development in the limitations imposed on employers' right of dismissal in New Zealand from the time when only the common law restrictions applied, through the first ineffectual statutory limitations, to the current situation. The paper analyses the current statutory protection against unjustifiable dismissal with reference to recent Arbitration Court decisions, discussing its implications, achievements and shortcomings.

scholarly journals Unauthorized medical intervention and informed consent in the common law of Canada prior to the Supreme Court’s decision of Reibl v. Hughes (1899–1980)

2020 ◽  
pp. 260-282
Author(s):  
Anatoliy Lytvynenko
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Common Law ◽  
Case Law ◽  
Medical Intervention ◽  
Invasive Treatment ◽  
First Case ◽  
The Common ◽  
The Right ◽  
The Given

The given article deals with the Canadian legacy of civil actions on negligence and technical assault or battery involving an unauthorizedmedical interference to plaintiff. In modern doctrine and case-law, the given concept is named “informed consent”, upon whichthe patient is not a mere subject of medical treatment, but has a substantial set of patient rights, involving the informational ones, whichincludes his right to be informed on further invasive treatment and thus to be able to assent or decline it. The doctrine of informed consent,arising from actions on unauthorized medical treatment in both common law and civil law jurisdictions, has a centuryfold historyin the jurisprudence. In the common-law world, it was bred in the end of the 19th century primarily in the jurisprudence of Americancourts, but still has its distinct peculiarities in the common law of Canada throughout the twentieth century. The span on the researchedjurisprudence embraces the time period of 1899 (judgment of Parnell, which was the first case to deal with the subject) to 1980 (caseof Reibl v. Hughes), where the Canadian Supreme Court has firmly recognized the principle of informed consent in the acting commonlaw. In the 1990s, the principles of informed consent had been codified. The author has investigated on the evolvement of the conceptof patient’s right to autonomy in the state from the very beginning to the judgment of Reibl v. Hughes in 1980, and has researched theroots of the “right to autonomy” as an extension of the right to privacy, which has penumbrally existed in Canadian jurisprudence forover a century, despite having been recognized as such relatively recently, despite an existence of various early case-law legacy. Apartfrom the abovesaid, the author aimed to define the authorities used by Canadian courts in the earlier cases dealing with unconsentedsurgery, which involves judgments from other jurisdictions as well as professional legal and medical textbooks.

scholarly journals EMPLOYERS’ STATUTORY VICARIOUS LIABILITY IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Daleen Millard ◽  
Eugene Gustav Bascerano
Keyword(s):  
Personal Information ◽  
Common Law ◽  
Case Law ◽  
Employment Equity ◽  
Vicarious Liability ◽  
The Common ◽  
The Right ◽  
The Impact ◽  
Data Subject ◽  
Responsible Party

A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability.Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far.This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes. 

scholarly journals PASSPORTS, THE RIGHT TO TRAVEL, AND NATIONAL SECURITY IN THE COMMONWEALTH

2020 ◽  
Vol 69 (2) ◽  
pp. 365-395
Author(s):  
Paul F. Scott
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
National Security ◽  
Common Law ◽  
The United Kingdom ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Statutory Basis

AbstractThis article, on the basis of a consideration of the development of the law relating to the use of passports as a tool of national security in the United Kingdom, Canada, Australia and New Zealand, challenges the common law conception of passports, arguing that passports effectively confer rights and so, consequentially, that the refusal or withdrawal of a passport represents a denial of rights. From this conclusion a number of points flow. Though these consequences are most acute for the United Kingdom and Canada, in which passports remain regulated by, and are issued under, prerogative powers, there are also a number of points of significance for Australia and New Zealand, where passports have a statutory basis.

The Need for a Constitution in the United Kingdom

1979 ◽  
Vol 14 (3) ◽  
pp. 269-285
Author(s):  
Wilberforce
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
Legal System ◽  
Common Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Flexible Instrument ◽  
The Common ◽  
Definition Of ◽  
The Right

I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.I will start with a quotation from Lord Salmon. In a recent lecture, he said: In this country [U.K.] we have an unwritten constitution. I have always regarded this as a blessing and never agreed with the theoretical objections to it. It is superbly flexible and above all it has stood the test of time. It works—and works admirably. But I am beginning to wonder whether it might not be wise to evolve, not an elaborate written constitution but perhaps the equivalent of a modern Bill of Rights. A statute which should lay down our basic freedoms, provide for their preservation and enact that it could not be repealed save by, say, a 75% majority of both Houses of Parliament.One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

scholarly journals Trade Union Recognition and Australia’s Neo-Liberal Voluntary Bargaining Laws

2003 ◽  
Vol 57 (2) ◽  
pp. 225-251 ◽  
Author(s):  
Ron McCallum
Keyword(s):  
United States ◽  
New Zealand ◽  
Trade Union ◽  
Trade Unions ◽  
Common Law ◽  
Industrial Relations ◽  
The United States ◽  
Recognition Mechanism ◽  
The Common ◽  
The Right

Summary When Australia deregulated its economy in the 1980s, political pressures built up leading in the 1990s to the dismantling of Australia’s industry-wide conciliation and arbitration systems. New laws established regimes of collective bargaining at the level of the employing undertaking. This article analyzes the 1993 and 1996 federal bargaining laws and argues that they fail to protect the right of trade unions to bargain on behalf of their members. This is because the laws do not contain a statutory trade union recognition mechanism. The recognition mechanisms in the Common Law countries of the United States, Canada, Britain and New Zealand are examined, and it is argued that Australia should enact trade union recognition mechanisms that are consonant with its industrial relations history and practice.

scholarly journals The Case for Specific Performance as the Primary Remedy for Breach of Contract in New Zealand

2004 ◽  
Vol 35 (3) ◽  
pp. 657
Author(s):  
Fionnghuala Cuncannon
Keyword(s):  
New Zealand ◽  
Historical Development ◽  
Common Law ◽  
Civil Law ◽  
Breach Of Contract ◽  
Administration Of Justice ◽  
Specific Performance ◽  
The Common ◽  
The Right ◽  
Practical Impact

This article examines the appropriateness of damages as the primary remedy for breach of contract in New Zealand. It argues that the civil law approach to contractual remedies, which gives primacy to performance of the obligation, is superior to New Zealand's common law position, which merely seeks to replace the right to performance with an award of damages. The importance of both the normative and practical impact of the remedial framework is examined in order to demonstrate that specific performance is better able to facilitate commercial endeavours. The three justifications for the primacy of damages in the common law (the historical development, the economic theory of efficient breach, and the concern that specific performance will overburden the administration of justice) are examined but rejected as adequate justification for the common law position. It contends that specific performance should be the primary remedy because it is more consistent with the principles that underlie the law of contract. It also contends that specific performance is more practical because it reduces conflict and promotes efficiency. The recommendation is that any change should be through appropriate legislation.

Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand

2009 ◽  
Vol 34 (01) ◽  
pp. 95-127 ◽  
Author(s):  
David Erdos
Keyword(s):  
New Zealand ◽  
Freedom Of Expression ◽  
Common Law ◽  
Civil Liberty ◽  
Case Law ◽  
Bill Of Rights ◽  
Opportunity Structure ◽  
Legal Outcomes ◽  
Cultural Self ◽  
The Common

This article argues that the cultural self‐understandings of the judiciary can exert a profound effect on legal outcomes under a bill of rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British‐descended judicial culture that prioritizes, first, those civil liberty values already cognizable by the common law and, second, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on their politicolegal resource set including the attitude of the political branches (legislature and executive) to the claim being forwarded.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

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