Whole document restricted, see Access Instructions file below for details of how to access the print copy. / This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.

This thesis examines four aspects of the contempt power in New Zealand. It does not, therefore, purport to be an exhaustive study of the law of contempt in all its protean forms. Rather, its aims are to assess what the law is, and why, and to consider whether it aptly describes the values of the society it purports to protect. The law of contempt has suffered from an excess of dichotomies and classifications which nowhere guarantee its clarity. The most enduring classification is that which distinguishes between criminal and civil contempts, largely on the basis of whether the sanctions which follow are punitive or coercive. Three types of criminal contempt are discussed. Contempt in the face of the court concerns the jurisdiction to punish summarily contumelious behaviour in court. It is argued that, since the summary procedure permits the imposition of sanctions without the usual trial safeguards, the contempt power ought to be limited to the removal of the contemnor from the court. Any more extensive contempt power arguably infringes the freedoms protected by the New Zealand Bill of Rights Act 1990. The law of sub judice contempt seeks to strike a balance between the competing values of freedom of expression and the right to a fair trial. Judicial insistence on the existence of a real risk as a matter of practical reality before the actus reus of this form of contempt is met has effectively restrained criticisms of the rule. Nevertheless, since it can penalise non-negligent practices, it is suggested that sub judice contempt should be treated as a crime of strict liability. The third form of criminal contempt, scandalising a court or judge, is said to be necessary to ensure confidence in the administration of justice. However, there is little evidence that the public perception of the judiciary would suffer through debate over the abilities of its judges. This arm of contempt ought not to be perceived as a form of judicial protectionism. For that reason, and because it arguably infringes the Bill of Rights Act 1990, it is urged that contempt through scandalising a court or judge should be abolished. The law of civil contempt is dealt with through a discussion of breaches of injunctions and undertakings. Since the sanctions which follow may serve both punitive and coercive ends the distinction between this category and the other three is regarded as incomplete. It is contended, however, that there are many similarities between criminal and civil contempts which merit their treatment as a genus. Whenever punitive sanctions are imposed (whether for a criminal or civil contempt) normal trial safeguards ought to exist. On the other hand, if enforcement of a court order is sought, such protection is inappropriate. A procedural approach to the different types of sanctions ought to rid contempt law of perplexing categorisations which fail to address the essential characteristics of the contempt power.

This is a collection of essays about the restraint of trade doctrine as laid down in the courts of the United Kingdom and the British Commonwealth. Generally, I will not give an account of the restraint of trade doctrine in the United States of America, for even although each individual state (apart from the civil jurisdictions California and Louisiana) and the federation itself, has a common law system, for reasons peculiar to those jurisdictions, the restraint of trade case law there has become so vast and so confused as to be unsuitable for my purposes. More importantly, however, the common law restraint of trade doctrine in the United Kingdom and the British Commonwealth has been laid down by courts without any significant consideration of the state of the law in the United States. Davies v Davies (1887) 36 Ch D 359, 370 by contrast, the period during which the Privy Council operated as a supra national court of final appeal has resulted in considerable harmony in the doctrine within the British Commonwealth. Even now the House of Lords is influential in Australia and Canada and the influence is increasingly reciprocal. By way of an exception I will discuss the purposes of the anti-trust legislation in the United States. This is necessary because I intend to show that the common law restraint of trade doctrine was not able to be, and was never intended to be, a means of regulating the economy in contradistinction to the United States anti-trust legislation and related legislation in the British Commonwealth. This account is not merely a description of the law relating to the restraint of trade doctrine although I do purport to describe the law. There are other accounts of the restraint of trade doctrine which do that well. Accounts of the restraint of trade doctrine include: Matthews & Adler, The Law Relating to Covenants in Restraints of Trade (London, 2nd ed 1907); Sanderson, Restraint of Trade in English law (London, 1926); Heydon, The Restraint of Trade Doctrine (London, 1971); Trebilcock, The Common Law of Restraint of Trade; A Legal and Economic Analysis (Toronto, 1986); Dean, The Law of Trade Secrets (Sydney, 1990); Mehigan & Griffiths, Restraint of Trade and Business Secrets: Law & Practice (London, 2nd ed 1991); Holdsworth, History of English Law IV (3rd ed, 1945) 343-54, 373-9; VIII (2nd ed, 1937) 56-42. There are other, less detailed accounts in contract law textbooks. The purpose of this dissertation is to describe aspects of the doctrine as it developed between the medieval period and the twentieth century and then to use that account as a basis for an analysis of how the law has taken a number of paths during the twentieth century which cannot be justified by the rules and their justifications which existed in the law prior to that time. Such a development has had important consequences for the restraint of trade doctrine and even the law in general, most of which have been detrimental. I do not intend to give a continuous historical narrative covering the whole of the doctrine. The history has been described before. For example, I do not intend to give a discrete account of the process by which the absolute rule against general restraints of trade gave way to the rule of reason, although I do mention this process where relevant for other purposes. The history, so far as it is relevant, is integrated into each chapter. I will argue that historically the restraint of trade doctrine was a rule or complex of rules, of a certain form and content. The form and content of the rule are important because they bear on the meaning of the class term "restraint of trade" which is an element of the rule. The meaning of that term began to change around the year 1890. Beginning first with certain classes of trade combination, courts began to classify as restraints of trade covenants which did not in fact restrain trade. Then the courts similarly treated the exclusive dealing contract and certain forms of property transaction. Another trend in the law which added to the confusion about the meaning of restraint of trade was the failure by the courts to make definitive findings one way or another as to whether a particular covenant was in restraint of trade. The courts were then faced with a dilemma. The law required a court to refuse to enforce a covenant in restraint of trade unless the covenantee could justify the restraint by presenting evidence to the court from which the courts could assess whether or not that particular restraint was within the reason for the restraint of trade doctrine or not. Such considerations were entirely inapt in the case of covenants which, in accordance with the traditional view, did not restrain trade. Yet if the courts did not validate these contracts, catastrophic consequences would have followed for the parties to such contracts and, indeed, to contract as an institution. To solve the dilemma the courts began to interpret the famous statement of the restraint of trade doctrine by Lord Macnaghten in Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co [1894] AC 535, 565 (HL) literally, rather than contextually. Ultimately this has resulted in the obscuring of the rule underlying the restraint of trade doctrine itself. There were many minor confusions along the way. It is important that the doctrine is coherent and its use consistent with its justifications because it is still a fruitful cause of legal change. In the last year the force of the rule has caused a radical restructuring of Association Football in Europe Bosman’s case. The rule has even penetrated the collective consciousness of the community at large. The broad thrust of the development and the detail will be outlined in the next thirteen chapters.

The purpose of this thesis is to examine and evaluate the present common law relating to trade unions in New Zealand. It is proposed that this examination and evaluation should not be limited to the “black-letter” law, but should take place in the wider social context of how trade union affairs, and industrial relations, are in fact conducted in this country. Where the common law is weighed in this balance and found wanting, it is intended that the possibility of statutory reform be considered.

In 1987, the World Commission on Environment and Development published its long awaited report: "Our Common Future". The report contained a detailed discussion of global environment and development problems and a set of recommendations which the Commission suggested could alleviate many of those problems. At the core of the Commission's recommendation was the 'sustainable development' concept which the Commission strongly suggested countries should adopt as the principal vehicle for overcoming many of the global environmental and social ills. But, what is sustainable development? What are its core values? How can sustainable development be utilized to arrest and resolve global societal problems? Does sustainable development have a universal application? Under what conditions can sustainable development be successfully implemented? These are some of the key issues that are addressed in this research paper. In this paper I look at the origin and definition of the sustainable development concept and identify the relevant principles of the concept. I also identify the tools that are necessary for the implementation of the concept. The underpinning of my argument is that sustainable development can be successfully implemented by countries particularly developing countries because the concept has strong roots in traditional cultures which are dominant in developing countries. I explore this position and the various issues that have been identified above by adopting Papua New Guinea (PNG) a developing country as a case study.

Pollution from vessels cannot be controlled effectively without the involvement of flag States. They have the primary responsibility for ensuring that the vessels which fly their flags comply with all applicable international rules and standards relating to vessel source pollution. Compliance with such rules and standards involves additional operating costs for ship-owners. Thus, in the highly competitive international maritime transport industry, there are many incentives for flag States not to prejudice their pursuit of comparative advantage by ensuring that their flag vessels comply with the applicable rules and standards. Enforcing their flag vessels to comply is not a rational choice. Accordingly, flag States must be given reasons to ensure that their flag vessels do comply with pollution control rules and standards if the problem of vessel source pollution is to be resolved. Neither of the two international Conventions which regulate the control of vessel source pollution, namely MARPOL and UNCLOS III, gives flag States reasons to ensure the compliant operation of their flag vessels. For that reason, neither Convention can claim to be an effective means for controlling pollution from vessels. There is, however, emerging evidence of flag State commitment to the control of vessel source pollution in response to the application of regional Port State Control measures. From the perspective of flag States, one aspect of the application of the concept of Port State Control is of concern - that is the legal basis of the control measures which are being taken against their flag vessels for violations of MARPOL's rules and standards.

This thesis is an attempt to use synthesis and analysis in respect of certain models of tort obligation to show that the common law has evolved and been shaped by recurring cycles. It was not possible to analyse the entirety of the wide sweep of tort obligation, so the models of trespass, trespass on the case, deceit and special relationship negligence were synthesised and then historically compared. From these models distinct recurring cycles of the common law became apparent, which alternated between expansionary and conservative stages. At one time the common law seeks a vehicle for new flexible remedies and obligations, and at another, it seeks the certainty of fixed rules. The cycle is incessant as for every swing in one direction, at a certain point on the pendulum, there will be a reaction. This thesis explores the pathology of those cycles through such selected models, including the symptoms exhibited by the initial ad hoc characteristics of the birth of a remedy or obligation, the maturing phase of a remedy or obligation created by the emergence of categories of liability, the abstraction from such categories of a general principle, and either the over-extension of such general principle, or the narrowing of such general principle leading to the obligation's ultimate demise as a flexible vehicle of liability. In the event of the death of an obligation or remedy, as a flexible vehicle of liability, the common law will seek to find or create another avenue of flexible remedy. The thesis does not seek to investigate the reasons or causes of such cycles, but is content to examine the symptoms exhibited by the various phases of such cycles. The initial two chapters summarise the general theory of such cyclic perspective and briefly outline the template of such cycles created by the early origins of the common law. The cycles of 'trespass' and 'deceit' show the rise and fall of those respective obligations from flexible remedies to narrow moribund obligations. The concepts upon which they were based of contra pacem and honesty were to prove excessively narrow and restrictive to survive the inevitable attrition caused through the natural accumulation of rules. A study of the cycle of these two obligations is rewarding as they both show a complete lifespan of an obligation through the various phases of a cycle up to the point of its death as an instrument of flexibility. The protean action on the case and the modern pragmatic case-by-case negligence formula, based on the open-ended elements of ‘foresight', 'proximity' and 'just and reasonableness', illustrate the problems caused by a remedy or obligation whose conceptualisation is vague and uncertain. The common law itself until 1875, apart from equity, had the ability through the action on the case to provide the common law with flexibility when needed. The closest that the common law in modern times has come to emulating the action on the case has been the remedial use of the negligence mechanism. While the action on the case did not survive the procedural reforms of the 19th century, it had developed general rules that limited the scope of such open-ended action. These general over-arching rules are important to a study of modern negligence liability. This thesis will endeavour to show that the modern open-ended negligence formula should be limited by comparable general rules to resist the inevitable pressure upon it to define its fault component or duty mechanism too narrowly. Synthesis by use of the tool of comparative legal history shows the constant tension in the common law between the quest for certainty through rules, on the one hand, and the ability to administer individual justice, despite the presence of a general rule, on the other. A comparison of the life cycles of the models selected shows a certain symmetry concerning the reasons and justifications advanced in constructing liability in either an expansionary or conservative phase of the common law. A cyclic perspective of the common law treats it as a dynamic constantly moving instrument that reflects the policy moods of contemporary society. Such a view of the law is not one-dimensional and may provide answers as to the past and present evolution of the common law and may give clues as to its future direction. The law is stated as at the 1st day of April 1997.

This study of the law relating to drug offending, now covered by the Misuse of Drugs Act 1975 as amended, begins with a historical survey of corresponding legislation. The combined pressures of endemic social needs and international demands for tighter drug control measures inevitably raise questions as to whether certain criminogenic effects were produced by this legislative activity. They include: Did premature restrictions cause amplification of the range of substances that became the subjects of abuse? Do the restraints that are now imposed have a scope and severity disproportionate to the social harm threatened by the proscribed conduct? These questions cannot be conclusively answered in a study of this nature, but the historical approach illustrates the complex relationship, both on a domestic and an international scale, between legislative action and conduct which is deemed criminal. An attempt is made to evaluate the assistance available to New Zealand courts from overseas judicial interpretations of legislation enacted within the same context of international obligation. As is then demonstrated, the major drug offences provide fertile ground for nurturing the technical requirements of proof of guilt. Already in New Zealand, in response to the demands and resources of accused persons faced with high penalties upon conviction, the concept of possession has been judicially analysed in great depth and detail. A comparative study is made of the requirements of the corresponding possessory offences in some other jurisdictions; each of the major offences against the Act is then analysed by analogy with the elements of possession. The statutory defences are also examined in relation to this analysis. Although an appraisal of the morality of current legislative policy is not seen as being within the scope of this study, an attempt is made to gauge the effect of Parliament's extension of police powers of search and seizure, and of the power to use listening devices, on the ways by which the courts have weighed socially important contending interests in the most delicate of balances. The courts' evident acceptance of the need for 'undercover' police detective operations in relation to drug offences is documented, as are the judicial restraints applied to the use of evidence so obtained. Sentencing policy in this context is a subject of increasing public interest and concern. An analysis is made of the principles of sentencing as they emerge from New Zealand Court of Appeal judgments over the period 1970-1979. It will be shown that aspects of that policy received recognition in the 1975 Act. However, because of the apparent emphasis on deterrence, many problems continue to tax the sentencing tribunal. This study does not purport to be exhaustive. It excludes detailed consideration of the administrative provisions in the Act and eschews analysis of offences against sections 11, 15 and 16 (concerning theft, etc., of controlled drugs, false statements, and obstruction of officers). The discussions of liability for secondary participation, and the inchoate offences, are confined to such points as are seen to be directly related to the context of drug offences. With some exceptions where subsequent information has come to hand, the law is stated on the basis of the materials available to the writer on 1 May 1980. / Whole document restricted, but available by request, use the feedback form to request access.

The Constitution of Fiji though similar to many others adopted within the Commonwealth since the end of the Second World War departs in many respects from the Constitution of the United Kingdom and that of New Zealand. The Constitution of the United Kingdom is wholly unwritten and that of New Zealand is only partly written as contained in the Constitution Act of 1852. Fiji not only has a written Constitution; the Constitution also incorporates the rules or principles which are accepted as constitutional conventions in the United Kingdom and New Zealand. In this thesis attention has been given to the position of the Governor-General as the representative of the Queen and the powers conferred upon him. The fact that he is a local appointee makes his position even more delicate. The problem is accentuated in that the exercise of some of his powers are made nonjusticiable by the Constitution. It is also suggested in this work that the fact that the Constitution of Fiji has an entirely different basis from that of the United Kingdom or New Zealand renders many of the principles adopted in those countries inapplicable. The notion of parliamentary sovereignty propounded by Dicey and others does not apply. The Constitution, not Parliament, is supreme. Judicial review of legislation is inevitable and the courts are intended as guardians of the Constitution. There are other important differences many of which are the result of the political decisions made on behalf of the three main races in Fiji before the Constitution was drafted. The separate Fijian administration and the powers of the Council of Chiefs are illustrations of these provisions. The fact the indigenous Fijians enjoy a privileged position through the separate Fijian Administration and the Council of Chiefs is discussed. The system of representation in the House of Representatives with a combination of the communal and multiracial electorates provides an unusual, perhaps questionable, experiment towards a solution of the tensions and problems associated with a heterogeneous society. Likewise the fundamental rights provisions have special significance in a multi-racial society like that of Fiji. As a background to the above matters a comprehensive survey of the constitutional history of the country is attempted. The role of the judiciary has been given significant emphasis throughout the thesis as it is felt that the judiciary is linchpin of the Constitution of Fiji. Concluding observations have been offered on ways of making the spirit of the Constitution, as enshrined in the preamble to the Constitution, a reality; and to engender a national outlook amongst the people of all ethnic groups.

Equality is a prominent value in modern moral, legal and political philosophy. There is, however, much controversy over the meaning of the concept and its moral implications. In this thesis I argue that the recent scepticism expressed by some writers about the prospects of reaching any agreement about what equality means is not well founded. The idea is not an empty one. The difficulty in pinning down its exact meaning and implications for our social ethics is caused by its abstractness, not its vacuity. The moral significance of equality can be expressed in the idea of basic equality – the requirement that persons are to be treated as equals and accorded equal concern and respect. That idea is morally justifiable and plays an important role in modern moral theory. If we accept that human beings are equal in important respects and that a commitment to basic equality as a moral ideal makes sense because of our shared human condition, then it follows that respect for that value is implicit in each instance of our moral decision making. The abstractness of basic equality means that it cannot serve as a straightforward rule which can be easily applied to disputes about who should or should not receive equal treatment. There is no list of prohibited grounds of differentiation that applies in all circumstances. Thoughtful moral judgments about the denial of basic equality typically demand sophisticated assessments of whether the interests of all affected parties have been taken into account and different sorts of denial of basic equality will require consideration of different factors. Attempts have been made in recent equality law jurisprudence to find a less abstract concept of equality that can inform the interpretation of the law. These are unsuccessful because basic equality cannot be reduced to some simpler, rule like, standard. These understandable attempts to make this area of law more manageable are not good explanations of what is morally important about the idea of equality. Clarity about the meaning and purpose of contemporary discrimination law is not likely to be achieved by further attempts to say what this law is really about. The law is difficult to apply because it is in the same broad terms as the idea of basic equality. The central moral quandaries of recent jurisprudential thought about basic equality concern the appropriateness of different treatment on grounds which can be used to discriminate against people. The difficulties that courts have with these issues are not remarkable because the moral issues are intractable. Issues such as indirect discrimination or the fairness of affirmative action policies require in depth consideration of the interests and concerns of all affected parties and will not be resolved by the application of any simple algorithm based on a less abstract definition of equality. These issues are difficult to resolve, not because we do not know what equality is but because weighing the competing concerns of affected parties while paying attention to other important values is a complex and often difficult task.