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Waika to Law Review Taumauri WAIKA TO LAW REVIEW TAUMAURI VOLUME3 1995 CONTENTS Public Interest Litigation Rt Hon Sir Ivor Richardson 1 Purpose and Principle in the Resource Management Act Hon S D Upton 17 Judicial Legislation in New Zealand and the Privy Council's Role Aimee Wilkins 57 The Law of Evidence relating to Child Victims of Sexual Abuse Wendy Ball 63 Narrative Mediation Richard Cohen and John Winslade 83 Enforcement of Insider Trading Laws by Shareholders in New Zealand Peter Fitzsimons 101 The Contradiction between Comparative Advantage in International Trade and Environmental Protection AI Gillespie 127 "Law in Context"- Taking Context Seriously Paul Havemann 137 Drafting: Plain English versus Legalese Stephen Hunt 163 A Little Something about Writing Peter Jones 181 Doing away with unemployment benefit? Ken Mackinnon 185 Book Review Margaret Wilson 207 Editor: Professor Peter Spiller Editorial Committee: Peter Spiller, Catherine Ioms and Ruth Wilson. The Waikato Law Review is published annually by the Waikato University School of Law. Subscription to the Review costs $20 per year; and advertising space is available at a cost of $200 for a full page or $100 for a half page. Back numbers are available. Communications should be addressed to: The Editor Waikato Law Review School of Law Waikato University Private Bag 3105 Hamilton New Zealand North American readers should obtain subscriptions direct from the North American agents: Wm W Gaunt & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (1995) 3 Waikato Law Review. All rights reserved. No part of this publication may be produced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording or any retrieval system, without permission from the editor. ISSN 1172-9597. EDITOR'S INTRODUCTION I am pleased to present the third edition of the Waikato Law Review. The Review is now well established in legal circles and has been cited in government and academic forums. The Review is proud to publish the Harkness Henry Lecture of Sir Ivor Richardson and the Stace Hammond Grace Lecture of the Hon Simon Upton. The Law School is grateful to the two Hamilton firms that sponsor these Lectures and their publication to a wider audience. The Review is also pleased to publish the winning argument in the annual student advocacy contest kindly sponsored by another Hamilton firm, McCaw Lewis Chapman. The Review continues to publish work which is on the cutting edge of New Zealand jurisprudence, covering sensitive areas of criminal evidence, creative approaches to dispute resolution and legal education, reform in the commercial and social welfare sectors, environmental and public law issues, and effective legal writing. The last-named topic formed the subject of an article by Stephen Hunt, a graduate of the Waikato Law School and who is now in legal practice. I am grateful for the work of the editorial committee in producing this edition, and for the continued support of our advertisers and subscribers. I have relished the chance to launch and oversee the early development of the Review. In 1996 the Review will be under the editorship of Ms Catherine lorns. Professor Peter Spiller, Editor, Waikato Law Review. Harkness Henry & Co. Barristers & Solicitors Partners Address Peat Marwick Tower Warren Scotter 85 Alexandra Street Barry Gunson Hamilton New Zealand Paul Middlemiss Simon Menzies Telephone: 07-838 2399 Inti: (0064-7-838 2399) Lynden Earl Fax: 07-839 4043 Christine Grice Inti: (0064-7-839 4043) Simon Ellis Jenny Screech Postal Communications Private Bag 3077 Mark Thomson Hamilton New Zealand Associates DX4014 Chris Marr Mark Maclennan Tony Steindle David Gould • BETTER LAW AN ASSOCIATION OF INDEPENDENT LEGAL PRACTICES NATIONWIDE THE HARKNESS HENRY LECTURE: PUBLIC INTEREST LITIGATION BY RT HON SIR IV OR RICHARDSON* I. INTRODUCTION Public interest litigation is an inevitable feature of modem democracies but it continues to give rise to questions as to the proper role of the courts in determining public policy issues. Judges make law and are expected to make law and in doing so necessarily weigh public policy considerations. The oracular or declaratory theory of decision-making has long been discredited. In the great majority of cases at the trial and frrst appellate level, once the facts are determined and assessed the legal answer is clear-cut. However, in some cases there is room for divergent answers. This is true both at common law and under statutes. The direction of development of the common law depends on what analogies are used and on an assessment of the values involved. The notion that the common law is a seamless web is as unrealistic as the view that on their appointment judges obtain the password to the correct common law answer. Thus duties of care are based on public policy values, and in the development of the modem law of negligence the New Zealand courts openly seek to identify and weigh the various public policy considerations at stake. Again, in exploring the interpretation and application of legislation the courts are required to consider the public policies which the legislation serves. Section 5(j) of the Acts Interpretation Act 1924 mandates a purposive approach by the courts to all legislation. And judicial review of the exercise of statutory power and public law generally requires the identification and weighing of relevant public policies by the courts. In all such cases the approach taken depends on the material and arguments before the court and on the perception judges have of community values and attitudes in their own societies. It is at this point that questions arise as to the proper role of the courts in determining where the public interest lies. There are two broad considerations which underlie tire questioning. The first is that there are limits to the democratic acceptability of judicial prescription. That reflects concerns for the * LLB, LLD (he) (Canterbury), LLM SID (Michigan), LLD (he) (Victoria), Judge of the New Zealand Court of Appeal. 2 Waikato Law Review Vol3 constitutional and democratic implications of judicial involvement in wide issues of public policy. The second is that the techniques and procedures of the courts are not always well suited to the consideration of public interest issues. This stems from concerns about the appropriateness of adversarial proceedings in seeking to resolve complex matters; from doubts about the competence of judges and lawyers in assessing specialised material; and from fear of protracted litigation and consequential uncertainty and delays for the parties and the wider community. I propose exploring these questions under four headings: (1) Justiciability: whether it is appropriate for the court to decide the issue; (2) Information gathering: how the court can be adequately informed of the issues; (3) Representation: who should be heard in the particular dispute; and (4) Remedies: what kinds of relief and remedy are appropriate. But before turning to justiciability I should explain why I am deliberately using the wider expression public interest litigation rather than confining the discussion to public law. II. PUBLIC IN'IEREST- PUBLIC LAW A great deal of legal learning and energy has been devoted to explaining, developing and applying the dichotomy between private law and public law. At one end of the spectrum a law suit is a vehicle for settling disputes about private rights. At the other end of the spectrum a law suit may settle disputes over the distribution and exercise of public power. But it is not easy to draw a sharp dividing line. For example, a dispute between two private parties over their private rights may require consideration of public policies underlying the existing or contemplated legal rule. In that way it may impinge on the public interest and in its application inevitably have effects beyond the immediate parties. Consider contract law which is the paradigm black letter private law. Underlying it is a set of public policy assumptions. Thus courts tend to view standard form contracts and exclusion clauses with suspicion as the products of inequality of bargaining power and imperfect information available to the weaker parties. 1 That public policy approach may or may not be justified. Empirical analysis may not warrant such a critical approach on the part of the courts. No one complains that prices for goods and services are generally set on a take it or leave it basis. Constant haggling over price necessarily involves high transaction costs. For the 1 See Macaulay v A Schroeder Music Publishing Co lJd [1974] 1 WLR 1308, 1316 and Livingstone v Roskilly [1992] 3 NZLR 230, 238. 1995 Public Interest Litigation 3 same reason standard form contracts may in many contexts also permit a dramatic reduction in transaction costs and so in prices. The reality is that intrusion by the courts on the operating of markets tends to add to the cost of the goods or services. Where resources are scarce, as they always are, trade-offs are always involved - here between greater protection for consumers and higher retail prices. That may involve balancing considerations of efficiency and fairness. And fairness values should recognise that the contractual price might well have been higher had the impugned exclusion clause or standard terms not been included in the contract. One only needs to consider the different sale prices attaching to different warranties or other terms of contract to appreciate that reality. I mention this not to go off into a discussion of the economic analysis of legal rules but rather to emphasise that much of the law making of the courts in determining private rights of private parties involves the identification, assessment and application of public policy values in that society. Reconsideration of existing legal rules to reflect contemporary conceptions of relevant public policies and contemplated policy developments becomes much more difficult in the traditional two party private dispute defined by past events where the fact inquiry is party driven and mainly historical rather than also policy oriented and predictive.
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