A fair argument, as far as it goes. Would be good to see how you see the NZ Bill of Rights meshes with the government's pre-emption of the case in question and how it fits with ideas of natural justice. Would also be good to have your view on the avoidance of select committee oversight of the law change. I thought Magna Carta sorted out the vexed issues of the rule of law, due process and access to justice.
It seems to me that the government's action in the matter displays a level of autocratic regal entitlement that contradicts the idea of democratic law making.
Law by fiat seem to be the antithesis of democracy, surely?
Magna Carta was really about the idea that government action is subject to the law, so that the Crown cannot act arbitrarily against citizens rights. But that’s not really engaged here because the government is not acting arbitrarily but is using the Parliamentary process to amend the law.
As for the NZBORA it’s hard for me to see which enumerated rights are being breached. No retrospective penalty or punishment is being meted out. Nor are any non-legal means being used by the government to
Finally for select committees I have always taken the view that these are for the convenience of Parliament to the extent it considers that additional evidence may be helpful. They’re not checks and balances against the government who has no obligation to call them when its mind has been made up.
The government must consult with the public every three years in a general election and that’s the check and balance that actually exists.
Hmmm. Is it fair to characterise the case in terms of "a newly invented tort", "a novel tort untethered from established precedent" and "a new tort" when the core plank in the Supremes was about the application of the long established tort of public nuisance? Sure, his third cause of action was a novel tort (and his second cause of action was in negligence). But it was the claim in public nuisance was core argument that survived strike out?
How would the proposed 24A have applied to the negligence cases you accept as a fair extension of the common law? The argument, of the losing plaintiffs, would be that those cases did not follow existing certainties. These are the same arguments that anyone taking a common law case has to meet already.
The picture may need to be more fluid and complex than a bedrock analogy. Common law and equity may apply in areas where there is no statute. Statutes may codify common law and equity.
In Smith the question was did statute override common law. The answer was it does not do so. The common law has room to apply. Smith was therefore granted the opportunity to have his claim fully considered. That would suggest that the various tests have not yet changed - they would be hurdles to be met in the substantive case.
As an aside, common law and equity are unwritten to the extent that neither have been applied by a judge to the facts of the case. A significant body is in writing (in the judgements). Perhaps, "unwritten" should be "not in statute"?
You are right that, formally, the issue before the Supreme Court was whether the claims should be struck out. But the respondents sought strike-out precisely because the pleaded cause of action was speculative. The Court of Appeal accepted that. The Supreme Court did not.
Refusing the strike-out despite the obvious problems of proximity, causation, indeterminacy, special damage and institutional competence was indulgent. Saying “he only gets his day in court” sounds modest, but the implications for the rule of law are not modest at all. It leaves major actors subject to years of litigation risk over a duty that nobody can presently define.
That is not how the best common law development works. Even in Donoghue v Stevenson (to the extent Lord Atkin was right) he was not simply knocking down a barrier because it seemed socially desirable to do so. He drew together a large number of smaller, prior developments and refined them into the neighbour principle.
There had already been cases about dangerous goods, misstatements, defective products, assumed responsibility and foreseeable injury. There was enough material to work from that, however controversial it was, it was still an organic decision.
That is the distinction I am drawing. Principled common law development generalises from existing authority. It does not keep alive speculative liability in the hope that evidence, policy argument and innovation may eventually supply the missing architecture.
The common law is not valuable because judges can endlessly improvise. It is valuable because accumulated precedent gives people, especially commercial people, a reasonably reliable map of what is lawful and unlawful. Gradual evolution that keeps touch with settled rules lets people organise their affairs predictably.
The Supreme Court damaged our economic order by keeping alive the possibility that ordinary lawful commercial activity, already regulated by Parliament, might later be recast as tortious because after a long process the court would eventually decide that the common law should move in a particular direction on a contested economic and social issue. That uncertainty is itself a cost.
A fair argument, as far as it goes. Would be good to see how you see the NZ Bill of Rights meshes with the government's pre-emption of the case in question and how it fits with ideas of natural justice. Would also be good to have your view on the avoidance of select committee oversight of the law change. I thought Magna Carta sorted out the vexed issues of the rule of law, due process and access to justice.
It seems to me that the government's action in the matter displays a level of autocratic regal entitlement that contradicts the idea of democratic law making.
Law by fiat seem to be the antithesis of democracy, surely?
Magna Carta was really about the idea that government action is subject to the law, so that the Crown cannot act arbitrarily against citizens rights. But that’s not really engaged here because the government is not acting arbitrarily but is using the Parliamentary process to amend the law.
As for the NZBORA it’s hard for me to see which enumerated rights are being breached. No retrospective penalty or punishment is being meted out. Nor are any non-legal means being used by the government to
Finally for select committees I have always taken the view that these are for the convenience of Parliament to the extent it considers that additional evidence may be helpful. They’re not checks and balances against the government who has no obligation to call them when its mind has been made up.
The government must consult with the public every three years in a general election and that’s the check and balance that actually exists.
Hmmm. Is it fair to characterise the case in terms of "a newly invented tort", "a novel tort untethered from established precedent" and "a new tort" when the core plank in the Supremes was about the application of the long established tort of public nuisance? Sure, his third cause of action was a novel tort (and his second cause of action was in negligence). But it was the claim in public nuisance was core argument that survived strike out?
How would the proposed 24A have applied to the negligence cases you accept as a fair extension of the common law? The argument, of the losing plaintiffs, would be that those cases did not follow existing certainties. These are the same arguments that anyone taking a common law case has to meet already.
The picture may need to be more fluid and complex than a bedrock analogy. Common law and equity may apply in areas where there is no statute. Statutes may codify common law and equity.
In Smith the question was did statute override common law. The answer was it does not do so. The common law has room to apply. Smith was therefore granted the opportunity to have his claim fully considered. That would suggest that the various tests have not yet changed - they would be hurdles to be met in the substantive case.
As an aside, common law and equity are unwritten to the extent that neither have been applied by a judge to the facts of the case. A significant body is in writing (in the judgements). Perhaps, "unwritten" should be "not in statute"?
Lord Buckmaster was right imo.
In all seriousness...
You are right that, formally, the issue before the Supreme Court was whether the claims should be struck out. But the respondents sought strike-out precisely because the pleaded cause of action was speculative. The Court of Appeal accepted that. The Supreme Court did not.
Refusing the strike-out despite the obvious problems of proximity, causation, indeterminacy, special damage and institutional competence was indulgent. Saying “he only gets his day in court” sounds modest, but the implications for the rule of law are not modest at all. It leaves major actors subject to years of litigation risk over a duty that nobody can presently define.
That is not how the best common law development works. Even in Donoghue v Stevenson (to the extent Lord Atkin was right) he was not simply knocking down a barrier because it seemed socially desirable to do so. He drew together a large number of smaller, prior developments and refined them into the neighbour principle.
There had already been cases about dangerous goods, misstatements, defective products, assumed responsibility and foreseeable injury. There was enough material to work from that, however controversial it was, it was still an organic decision.
That is the distinction I am drawing. Principled common law development generalises from existing authority. It does not keep alive speculative liability in the hope that evidence, policy argument and innovation may eventually supply the missing architecture.
The common law is not valuable because judges can endlessly improvise. It is valuable because accumulated precedent gives people, especially commercial people, a reasonably reliable map of what is lawful and unlawful. Gradual evolution that keeps touch with settled rules lets people organise their affairs predictably.
The Supreme Court damaged our economic order by keeping alive the possibility that ordinary lawful commercial activity, already regulated by Parliament, might later be recast as tortious because after a long process the court would eventually decide that the common law should move in a particular direction on a contested economic and social issue. That uncertainty is itself a cost.