LegalResearchFoundation

This article examines the capacity of the common law to provide for the recognition of tikanga and Māori customary law. It details the limited and mixed way in which courts have treated Māori customarylaw within the common law thus far, focusing particularly on the recent articulations in the Court of Appeal and the Supreme Court.

It then looks at the many inherent limitations and barriers that are erected by the common law and argues that there is potential for the common law to be developed so that it becomes a limited vehicle for Māori customary law to be afforded recognition in the state legal system in the 21st century.

Taking as its impetus the recommendation of the New Zealand Constitutional Advisory Panel that consideration should be given to a greater judicial role in ensuring that Parliament complies with protected rights, the article contrasts the approach taken bycthe United Kingdom Human Rights Act 1998 to review of primary legislation with that taken by the New Zealand Bill of Rights Act 1990. Examining the power of the United Kingdom courts to declare legislation incompatible with protected rights — which has been widely praised in the United Kingdom and followed in two Australian jurisdictions — the article argues that it is unfair, unprincipled and not a particularly effective method of protecting rights against parliamentary encroachment.

This is for three connected reasons:
(1) it fails to afford an effective remedy to litigants who establish a violation of their rights; (2) it will often provide an inadequate incentive to potential litigants to commence proceedings testing legislation; and (3) it is neither well-suited to locating responsibility
for legislative infringements of rights with Parliament nor should it be supported as a means of inculcating a “dialogue” between courts and politicians. The article goes on to identify several reasons why the declaration of incompatibility model is particularly unsuitable to the New Zealand context. It concludes that New Zealand should afford judges greater powers than they possess in the United Kingdom and move closer to a supreme law bill of rights, such as exist in most Commonwealth jurisdictions.

In 2008 the Rules Committee proposed the introduction of a class action regime to New Zealand and drafted legislation to achieve this. The legislation was not enacted, but despite lacking legislative foundation, class-action-style litigation is becoming an increasingly significant feature of New Zealand’s litigation landscape. Since the Rules Committee made its proposals, the representative action under r 4.24 of the High Court Rules has developed significantly to facilitate this type of litigation. At the same time, the historic prohibition on third-party funding of litigation has been lifted in representative proceedings, which makes complex litigation on behalf of a large group more economically viable than previously.

This article examines the developments in the representative action and the emerging framework for managing litigation funding in representative proceedings. This article argues that much of what the Rules Committee set out to accomplish through the enactment of the Class Actions Bill can now be achieved under the representative action. However, it also argues that the development of group litigation procedure through judicial decisions on individual procedural points has resulted in inconsistencies and uncertainties in the law that undermine the benefits of group litigation. For this reason, legislation is still necessary.