Victoria University of Wellington Law Review
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Renée Holmes[*]
Duncan Webb and David Rowe (eds) Insurance Law: Practice, Policy & Principles (The Centre for Commercial and Corporate Law Inc, Christchurch, 2004) (227 + x pages)
Insurance Law: Practice, Policy & Principles is a collection of essays covering a broad range of topical insurance law issues. Editors Duncan Webb and David Rowe have brought together a wide range of authors consisting of practitioners, academics and a student. The diversity of authors, and of subject matter, makes this not only a useful reference book covering a wide range of issues, but also interesting and varied reading.
Insurance law is often neglected by those who do not study or practice in the area. It would easily be possible to gain a law degree under the assumption that the general rules learnt in contract law govern insurance contracts. This is not the case. As this collection illustrates, some aspects of insurance cases are solved by the application of principles that are unique to insurance contracts, and are often quite different to the principles applied to contracts in general. In addition, insurance carries its own unique policy considerations. For this reason this collection of essays covering concerns and issues unique to the contemporary practice of insurance in New Zealand is welcomed.
Differences between contract law and principles applicable only to insurance contracts is a reoccurring theme amongst the essays. For example, Paul Michalik's examination of the principles governing the formation of policies in "Formation of the Contract – Insurance Law or Contract Law? Wynne v New Zealand Insurance" ends with a conclusion entitled "A Reminder to keep Insurance Law at the Forefront in Insurance Cases".[1] Jon Parker concludes that insurance contracts are interpreted in a different manner than commercial contracts in "Gazelle Properties Limited v G J Hulst – A Case Apart".[2]
Other essays focus more on the basic theoretical principles underlying insurance contracts. Mark Fisher examines the familiar subject of the requirement for an insurable interest.[3] Neil Campbell is somewhat more original in his examination of the duty of good faith. He asserts that the duty arises only at certain points during the lifecycle of the contract and cautions against adoption of an overarching duty applying throughout.[4] In "An Insurer's Right to be Subrogated to the Insured's Contractual Claims", Chris Chapman and Jo Girvan look at the familiar doctrine of subrogation, with particular emphasis on the effect of the construction of a contract and waiver of subrogation clauses on the insurer's right to be subrogated to the insured's claims.[5]
An especially topical essay is "Genetic Testing and Insurance: the Role of the Industry and the Welfare State" which is primarily concerned with policy and the future direction of the law. In what I personally found to be the most challenging essay in the collection Andru Isac discusses the implications of genetic testing on insurance, and possible regulatory responses for the future.[6] This essay stands out among the collection for its examination of an issue that will no doubt attract increasing attention in the future.
Many of the essays offer illustrations and discussions of issues and areas which are of valuable practical application or assistance. These include an evaluation of the use of alternative dispute resolution in insurance cases,[7] and an explanation of the Insurance and Savings Ombudsman scheme.[8] The framework outlined by Craig Brown for Determining cover in "Determining Cover: Interpretation of Policies, Causation and Fortuity" is straightforward and contains useful references to case law in Australia and Canada as well as New Zealand.[9] Other titles in the book include "Recent Developments in the Scope of the Insured's Precontractual Duty of Disclosure: Strategies for Reform",[10] "Misrepresentation and Non-disclosure",[11] "The Exercise of Contractual Discretion: The Insurer as Judge in its Own Cause",[12] and "Insurance Against Knowing Conduct and Offences".[13]
As the majority of the essays concern fundamental principles and ongoing problems, this book should retain its relevance over time. The book is aptly named given the broad range of material covered by the thirteen essays. Indeed, the only thing that many have in common is that they all fit under the general rubric of "insurance law". The collection is not designed to be a comprehensive review of the law, it appears the essays have been chosen not in an attempt to cover certain areas or to complement each other, but rather because each essay stands alone and presents a current issue of practical relevance. For this reason there has been no attempt to organise the essays under chapter headings, which is understandable given the vast array of issues covered.
Given this diversity of subject matter, it is unfortunate that the foreword is so brief, and that there is no introduction by the editors. This would have been useful in tying together such a broad range of essays, and would have made the collection more comprehensive overall. As it is, the reader is left to guess at the impetus for the book and the subsequent selection of essays. Nevertheless, each of the essays is capable of standing alone and major overlaps in subject matter have been avoided.
In some cases, the essays in this book will not present anything new to those who work in the insurance law area but will be useful for those seeking to grasp fundamentals of insurance law practice. In others, the essays examine and question principles and policies in a more in-depth fashion and offer novel suggestions. That is why this book will be relevant to a broad audience on differing levels, and will be a valuable tool for practitioners, academics and students alike.
Hannah Northover[*]
Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Melbourne, 2005) (402 + xxi pages) NZ$65.
Waitangi Revisited: Perspectives on the Treaty of Waitangi looks at Treaty issues 16 years after the publication of Waitangi: Mâori and Pâkehâ Perspectives of the Treaty of Waitangi.[14] The superficial differences between the two volumes are minimal. Both are handy paperbacks in serious Treaty colours. The most telling sign of the intervening years is the URL on the more recent edition. The disappearance of Mâori and Pâkehâ from the title could be a response to some of the considerations addressed in Allen Bartley and Paul Spoonley's "Constructing a Workable Multiculturalism in a Bicultural Society",[15] or, more likely, a move to clip a clunky title.
Both editions have glittering lists of contributors. The names Brookfield, Durie, Kawharu, McHugh, and Walker all reappear in this year's release. New contributors this time around include Wellington's Tom Bennion, Ani Mikaere of Te Wânanga o Raukawa, Auckland University's Margaret Mutu, and lawyer Maui Solomon. Both Waitangi and Waitangi Revisited are collections of highly topical and thought-provoking essays, mixing history with social, legal and political analysis. Contributions to the first edition, like Benedict Kingsbury's "The Treaty of Waitangi: some international law aspects", have become classics in their field.[16] Waitangi remains a valuable contribution to Treaty literature and debate, but was ripe for revisiting; the subsequent decades have been long years for the Treaty.
During the 1990s, the cracking pace of progress envisaged by some had failed to eventuate, and momentum was lost. Perhaps the biggest and more general gains were succeeded by discrete change in more diverse areas. Constitutional transformation has not occurred, but change is still very firmly on the agenda.
I have heard it said that it can be difficult to find cogent and lucid expressions of contrary opinions on Treaty issues because most with the knowledge and passion to write well on the Treaty share similar viewpoints. In Waitangi Revisited, attempts to provide different ideological perspectives seem relatively successful. Ani Mikaere and Andrew Sharp take solidly opposing views on the significance of tikanga in New Zealand's constitutional framework, just as David Williams and Jock Brookfield express divergent views on the place for tikanga in our legal system.[17] Brookfield continues to develop his theories of legal system legitimation, notably addressing the relationship between postcolonialism and legitimation.[18] Ranginui Walker also directly addresses "The Treaty of Waitangi in the Postcolonial Era", viewing the 1985 extension of Tribunal jurisdiction to 1840 as signalling the irrevocable launch of the Treaty into the postcolonial era.[19] Walker's chronological record of the Tribunal is set in the contexts of government recognition of the Treaty since 1940 and of Foucault's ideas of a "return to knowledge" by the path of "local criticism".[20] Walker has some characteristically gorgeous sentences, saying of the early Tribunal: "Mâori activists were not mollified by the government's paper tiger."[21]
Other contributors present pieces more akin to case studies, but illustrative of wider themes and relating to issues of significance. Such pieces include Paul Tapsell writing on the Treaty and Te Papa, Maui Solomon on the Tribunal Wai 262 claim to indigenous flora and fauna - ô râtou taonga katoa, and the hapû and community perspectives presented by Hugh Kawharu, Evelyn Tuuta and Margaret Mutu.[22]
Michael Belgrave's analysis of Waitangi tribunal historiography discusses the Tribunal's "presentism",[23] as Giselle Byrnes did prominently last year in The Waitangi Tribunal and New Zealand History.[24] The other contributions are no less deserving of mention - for example, Shane Jones's "Cornerstone of the Nation State", based on an interview with Paul Diamond. This paper's personal tone allows the presentation of Diamond's experiences and the way they have shaped his view of the Treaty to mix with his hopes for the future. Diamond began to see the Treaty of Waitangi as "one of the planks that will build the platform of Aotearoa in the future", adding the caveat "I don't think it's fair to say that it can be the exclusive plank."[25]
Tom Bennion's "Lands Under the Sea: Foreshore and Seabed" is already dated, as Bennion anticipated, by the Hîkoi and the Foreshore and Seabed Act 2004, now in effect.[26] This is no criticism – the edition would have been incomplete without reference to the foreshore, and as movement on the issue continues, so will the scope for further comment.
In his foreword, Hugh Kawharu speaks of the "humility, patience and resolve" required from both Mâori and Pâkehâ in the effort to meet necessary challenges like the need to communicate "Mâori perspectives to a majority mono-cultural Pâkehâ audience in terms that will encourage a constructive response, perhaps even a joint enterprise."[27] Waitangi Revisited makes a valuable contribution to constructive discussion of Treaty issues by accommodating varied viewpoints, carefully expressed. It deserves to be read by a wide audience. The contributions in this collection reflect Treaty issues that are currently prominent, and likely to remain in contention until debate of this kind becomes more widespread.
Peter Wright[*]
Richard Scragg New Zealand's Legal System (Oxford University Press, Melbourne, 2005) (146 pages) NZ$49.95
A student's first year at law school can be daunting. A wide range of new skills need to be acquired. New Zealand's Legal System is a new guide to the principles of the legal system, written specifically for law students, introducing the core concepts encountered in the first year of legal study. The book would be particularly useful to those students seeking a better understanding of key legal skills – especially students whose law courses cover the examples used in the guide. The book could be viewed as a study guide, suitable for those seeking something brief and more closely related to examinations than Morag McDowell and Duncan Webb's The New Zealand Legal System.[28]
The book follows a simple structure with introductory chapters on the concept of law, the common law, and statute law, followed by chapters on case analysis, statutory interpretation, and reasoning by analogy. The introductory chapter on the concept of law is noticeably brief, with a quick survey of core legal concepts, and provides a useful structure within which to introduce the context of the common law and statutes.
The second chapter, introducing the common law, is the most impressive, providing a readily understandable guide that covers the essentials of any first year law student's exam. It also covers some interesting discussion on topics such as the Supreme Court of New Zealand and its likely treatment of precedents. The principles introduced in this chapter are then used on an example in the next chapter with detailed case analysis questions and model answers on Petterson v Royal Oak Hotel Ltd.[29] While this would obviously be of greatest use to students at universities where this case is studied, it is also good preparation for examinations based upon an unprepared case. The model answers are well written and provide a good introduction to how an examiner thinks; the author being a "legal system" university course coordinator.
The chapter on statute law follows a similarly practical approach. The essentials are laid out, including a comparatively long introduction to the New Zealand Bill of Rights Act 1990 and its impact on statutory interpretation. Again there is a practical example with questions and well explained answers.
The book concludes with a chapter on the building of a corpus of law, with the "postal rule" of the law of contract used as an example, and a chapter on reasoning by analogy. These two chapters seemed somewhat disjointed from the rest of the book, and their usefulness would almost entirely depend on how applicable they were to the particular university course a student was enrolled in.
New Zealand's Legal System is recommended as a study guide for the many students who need assistance in coming to grips with the core concepts of their early legal studies. This book by no means comes close to the depth and detail of The New Zealand Legal System,[30] but certainly fulfils the role of an accessible study guide with sufficient detail for most students. At a recommended retail price of $49.95 is also offers excellent value in terms of its length and depth compared to many of the other study guides available.
[*] Associate Editor, Victoria University of Wellington Law Review.
[1] Paul Michalik "Formation of the Contract – Insurance Law or Contract Law? Wynne v New Zealand Insurance" in Duncan Webb and David Rowe (eds) Insurance Law: Practice, Policy & Principles (The Centre for Commercial and Corporate Law Inc, Christchurch, 2004) 139, 149.
[2] Jon Parker "Gazelle Properties Limited v G J Hulst – A Case Apart?" in Webb and Rowe, above n 1, 151.
[3] Mark Fisher "The Concept of Insurable Interest: Inherent Requirement or Inherent Quandary within Modern Insurance Contracts?" in Webb and Rowe, above n 1, 217.
[4] Neil Campbell "A Sceptical View of Good Faith in Insurance Law" in Webb and Rowe, above n 1, 205.
[5] Chris Chapman and Jo Girvan "An Insurer's Right to be Subrogated to the Insured's Contractual Claims" in Webb and Rowe, above n 1, 83.
[6] Andru Isac "Genetic Testing and Insurance: the Role of the Industry and the Welfare State" in Webb and Rowe, above n 1, 1.
[7] Melanie Bliss and Hamish McIntosh "A Guide to ADR in Insurance" in Webb and Rowe, above n 1, 17.
[8] Karen Stevens "The Insurance & Savings Ombudsman Scheme" in Webb and Rowe, above n 1, 179.
[9] Craig Brown "Determining Cover: Interpretation of Policies, Causation and Fortuity" in Webb and Rowe, above n 1, 31.
[10] Les Arthur "Recent Developments in the Scope of the Insured's Precontractual Duty of Disclosure: Strategies for Reform" in Webb and Rowe, above n 1, 59.
[11] D F Dugdale "Misrepresentation and Non-disclosure" in Webb and Rowe, above n 1, 107.
[12] Jeanette Hobbs "The Exercise of a Contractual Discretion: the Insurer as Judge in its Own Cause" in Webb and Rowe, above n 1, 117.
[13] Tim Stephens "Insurance Against Knowing Conduct and Offences" in Webb and Rowe, above n 1, 161.
[*] Associate Editor, Victoria University of Wellington Law Review.
[14] I H Kawharu (ed) Waitangi: Mâori and Pâkehâ Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989).
[15] Allen Bartley and Paul Spoonley "Constructing a Workable Multiculturalism in a Bicultural Society" in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Melbourne, 2005) 136.
[16] Benedict Kingsbury "The Treaty of Waitangi: some international law aspects" in Kawharu, above n 1, 211.
[17] Ani Mikaere "The Treaty of Waitangi and Recognition of Tikanga Mâori" in Belgrave, Kawharu and Williams, above n 2, 330; Andrew Sharp "The Treaty in the real Life of the Constitution" Waitangi Revisited 308; David V Williams "Unique Treaty-Based Relationships Remain Elusive" in Belgrave, Kawharu and Williams, above n 2, 366; F M (Jock) Brookfield "Waitangi and the Legal Systems of Aotearoa New Zealand: Conflict and Change" in Belgrave, Kawharu and Williams, above n 2, 349.
[18] Brookfield "Waitangi and the Legal Systems of Aotearoa New Zealand: Conflict and Change" in Belgrave, Kawharu and Williams, above n 2, 358-359
[19] Ranginui Walker "The Treaty of Waitangi in the Postcolonial Era" in Belgrave, Kawharu and Williams, above n 2, 61.
[20] Ranginui Walker "The Treaty of Waitangi in the Postcolonial Era" in Belgrave, Kawharu and Williams, above n 2, 57.
[21] Ranginui Walker "The Treaty of Waitangi in the Postcolonial Era" in Belgrave, Kawharu and Williams, above n 2, 59.
[22] Paul Tapsell "from the Sideline: Tikanga, Treaty Values and Te Papa" Waitangi Revisited 266; Maui Solomon "The Wai 262 Claim: A Claim by Mâori to Indigenous Flora and Fauna: Me o Râtou Taonga Katoa" in Belgrave, Kawharu and Williams, above n 2, 213; I H Kawharu "Orakei" in Belgrave, Kawharu and Williams, above n 2, 151; Evelyn Tuuta "Feast or Famine: Customary Fisheries Management in a Contemporary Tribal Society" in Belgrave, Kawharu and Williams, above n 2, 168; Margaret Mutu "Recovering Fagin's Ill-Gotten Gains: Settling Ngâti Kahu's Treaty of Waitangi Claims against the Crown" in Belgrave, Kawharu and Williams, above n 2, 187.
[23] Michael Belgrave "The Tribunal and the Past: Taking a Roundabout Path to a New History" in Belgrave, Kawharu and Williams, above n 2, 35.
[24] Giselle Byrnes The Waitangi Tribunal and New Zealand History (Oxford University Press, Melbourne, 2004).
[25] Shane Jones "Cornerstone of the Nation State" in Belgrave, Kawharu and Williams, above n 2, 33.
[26] Tom Bennion "Lands Under the Sea: Foreshore and Seabed" in Belgrave, Kawharu and Williams, above n 2, 233.
[27] I H Kawharu "Foreword" in Belgrave, Kawharu and Williams, above n 2, v, vi.
[*] Assistant Editor, Victoria University of Wellington Law Review.
[28] Morag McDowell and Duncan Webb The New Zealand Legal System (3 ed, LexisNexis Butterworths, Wellington, 2002).
[29] Petterson v Royal Oak Hotel Ltd [1948] NZLR 136.
[30] McDowell and Webb, above n 1.
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