NZLII Home | Databases | WorldLII | Search | Feedback

Otago Law Review

University of Otago
You are here:  NZLII >> Databases >> Otago Law Review >> 2004 >> [2004] OtaLawRw 15

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Scott, S --- "Commercial Law Essays, A New Zealand Collection" [2004] OtaLawRw 15; (2004) 10 Otago Law Review 691

Commercial Law Essays, A New Zealand Collection

(By David Rowe and Cynthia Hawes (eds),

Centre for Commercial and Corporate Law Inc, 2003, xiv,

144 pages including tables and index, price $35.00)

Since its establishment in 1988, the Centre for Commercial and Corporate Law Inc, based at the School of Law, University of Canterbury, has published a number of collections of essays. Commercial Law Essays, A New Zealand Collection is a recent and welcome addition to these publications, especially so, as its title indicates, all the essayists are based in New Zealand. Commonly a collection of essays centres around a theme or topic, for example developments in company law – the focus of the Centre’s earlier successful publication Company Law Writing: A New Zealand Collection, Borrowdale, Rowe and Taylor (eds) (2002). But the eight essays in this particular collection touch on a diverse range of commercial topics. These comprise one essay on copyright, another on consumer protection, two essays on aspects of directors’ personal liability, one essay each on competition law and financial regulation, and the remaining two essays on securities law.

In her essay on Copyright, “Interpreting the Boundaries of New Zealand Copyright Law — Property Rights, Competition Policy, Free Speech and International Law” (pp. 19-38), Anna Kingsbury “considers the role of the judiciary in interpreting the boundaries of copyright in New Zealand law”

(at p. 19). Kingsbury’s concern is that in determining the scope of copyright law, the Courts should not take a narrow “property rights” approach at the expense of “considering other legal policy considerations such as competition and freedom of expression” (at p. 19). While applauding New Zealand courts for “not embrac[ing] a simplistic and inappropriate property rights analysis” Kingsbury is concerned that they “have given little express consideration to rival arguments based on freedom of expression, and competition policy has tended to be subordinated to copyright, where it is addressed at all” (at p. 37).

Cynthia Hawes’ essay on Consumer Protection, “The Consumer Protection

(Definition of Goods and Services) Bill” (pp. 97-118), considers the significance of proposed amendments to the definition of goods and services in the Consumer Guarantees Act 1993. As Hawes observes the “existing definition [of goods] is clearly intended to cover what may be ordinarily described as “goods”, and lists certain items about which doubt might exist” (at p. 98).

In contrast the new definition extends to “items such as electricity, gas, telecommunications signals and computer software, which are difficult to categorise in ordinary language as being goods” (at p. 99). Hawes reviews the existing case law to reveal the significance of this change for the electricity and gas, telecommunications, water and computer software industries.Amendments to the definition of “services” are also proposed with the aim of removing the current requirement that a contract of supply must exist between the supplier and consumer. As Hawes notes, this “amendment may significantly widen the ambit of the Act and will impose the statutory guarantee in cases where they do not at present apply” (at p. 113). This is illustrated by Hawes’ analysis of Director-General of Social Welfare v Disputes Tribunal (1999) 6 NZBLC102, 747 (a case involving negligent advice by the Income Support Service to a beneficiary). Andru Isac’s and Stephen Todd’s essay “Directors’ Torts” (pp 39-61), contributes a thoughtful reflection on the “confusing” existing law on directors’ liabilities for torts (p. 60). They review the reasoning of the controversial decisions of the Court of Appeal in Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 and the House of Lords in Williams v Natural Life Health Foods Ltd [1998] UKHL 17; [1998] 1 WLR 830, cases in which claims against directors for negligent advice were unsuccessful. Their conclusion is that these cases have “disrupt[ed] a coherent area of law and undermine[d] traditional notions of vicarious liability while conferring upon directors a greater protection than that which previously existed, in the form of a representative capacity defence” (at p. 60). Tom Weston then considers aspects of the same question in his essay, “Primary or Accessory Liability: Metaphysical Bifurcation” (pp. 79-96). Assuming that the approach in Trevor Ivory now states the common law, Weston points out the inconsistent approach the New Zealand Courts have taken when the claim against the director happens under the Fair Trading and Commerce Acts. Turning to competition law, Mark Berry and Morag Bond, in “The Redirection of the Merger Threshold” (pp. 119-130), consider the recent replacement in the CommerceAct 1986 of the “dominant threshold” test for the regulation of mergers with the “substantial lessening of competition threshold” test.

Post-September 11, the financing of terrorism has attracted increased attention. Alex Conte, in “New Challenges for Financial Regulations: The Suppression of the Financing of Terrorism” (pp. 63-78), places New Zealand’s legislative response against the background of the country’s international responsibilities and then reviews critically the effectiveness of the response. Turning to securities law, Duncan Webb, in “Guarantors: The Solicitor’s Duty”

(pp. 1-18), considers the role and duty of solicitors in acting for prospective guarantors. This review takes place against the background of the “landmark case” of the House of Lords in Royal Bank of Scotland v Etridge [2001] UKHL 44; [2001] 4 All ER 449. The second essay on securities law is that of Richard Scragg, “Motor Vehicle Sales and the Personal Property Securities Act 1999” (pp 131-143). Scragg questions the continued special treatment of motor vehicle security under Part 6 of the PPSA in light of changes to the regulation of licensed motor vehicle dealers

(and removal of the fidelity guarantee fund) to be brought about by the Motor Vehicle Sales Act 2003. These essays are valuable in their own right for their analysis of specific legal doctrines. But they are also valuable for their contribution to our understanding of the inter-relationships of legal doctrines, in particular reinforcing our appreciation that legal doctrines do not operate in isolation, but have implications for other areas. This is expressly brought to the reader’s attention by Richard Scragg. As he describes, the special regime for motor vehicle securities in Part 6 of the PPSA arose with Parliament’s wish, pending the review of the regulatory regime of motor vehicle dealers, to continue the special protection conferred on purchasers of motor vehicles from licensed motor vehicle dealers. His point is that when subsequently reviewing that regime, Parliament has failed to consider why Part 6 was enacted. Other examples of the inter-relationship of discrete bodies of the law are provided by Isac and Todd’s, and Weston’s, articles showing the clash between tort law’s focus on the act of an individual and company law’s creation of the corporate form. Then there is Hawes’ article which highlights the potential impact of amending the definition of goods for the purposes of the Consumer Guarantees Act so as to include electricity and gas, but not carrying that amendment over to the definition of goods for the purposes of the Sale of Goods Act. These examples show the worth of reading a general collection of essays.

This collection of essays is a valuable edition to all law libraries and at the price, $35, is a bargain.

Struan Scott, Faculty of Law,

University of Otago.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback