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Auckland International Campus

Bachelor of Applied Management

BX551001 Commercial Law

Student Name: Yiqun Wei

Student ID: 1000016950

Lecturer Name: Krish Naidu

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Section A

1.

One function of law is regulation of our behaviour. For

instance, when we see someone who does some bad things

punished, we are warned not to do that by law. The law

regulates our social behaviours and tells us what is

right or wrong.

Another function can be a tool facilitating our society.

For instance, we use patent law to protect what we are

involving in. With patent, business men can protect our

business better. It is a tool for our society.

2.

a) The moral validity in Harry case is that his trespass

is not significant for the destruction of the native

forests and chaining him to a tree is related to the

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moral issue. For legal validity of Harry’s actions, he

violates the law related to forbidding logging of the

native forests.

b) From the ethical considerations, Rewi should make

business decisions of importing best wood from forests

to make great profits for its shareholders and win

customers loyalty. From the legal perspective, Rewi

should not cut those woods that are protected under

terms of relevant law.

3.

a)

(i) Civil law

(ii) Criminal law

(iii) Criminal law

(iv) Civil law

b)

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Joseph identified that the first feature is majority

rule. Democracy grant citizen’s essential rights to vote

and engage in political activities based on their own

interests. Secondly, democracy is also featured by the

rights of all citizen voters to join fully and freely in

their social life.

4.

a) Mikaere & Milroy (2001) identified that two main

issues can be identified concerning The Treaty of

Waitangi, the basic testament of New Zealand. Above all,

despite its status, constitutional features, the Treaty

tends to disputable due to paradoxes and ambiguities. For

instance, Legal positivists deny the validity of the

treaty; the English version confirms sovereignty cession

while the Māori one does not share the English idea of

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sovereignty. Another issue is that the Maori still

control Aotearoa New Zealand and does not regard the

Treaty invalid, since it violates the promise of Treaty

chieftainship.

b) New Zealand Maori Council v Attorney-General [19871

1NZLR 641 is legally significant for the following

reasons. Above all, it cleared the way for diversified

non-land Māori customary rights based on Treaty.

Secondly, the case resulted in the following principles,

including the sovereignty in return for the

rangatiratanga protection (Barrett & Strongman, 2013).

Furthermore, the case asserted the principle that the

treaty set up cooperation with its partners. In addition,

following it, the Treaty regulation was reconsidered and

developed in various cases.

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c) Melvin (2000) identified that the Waitangi Tribunal

was established mainly for the purpose of providing a

legal process for exploring those increasing unsettled

Treaty of Waitangi grievances of 1975 protests and

dealing with non-binding decisions about breach of the

Treaty.

5.

Bigwood (2001) stated that Sovereignty of Parliament

refers to an idea reflected in the constitutional law for

a few parliamentary democracies that the legislature is

supreme and own absolute sovereignty over other

government bodies, such as judicial or executive bodies.

Thus, it can repeal and change any previous legislation.

To some degree, parliamentary sovereignty is

contradictory with the doctrines of power separation. New

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Zealand just has sovereign legislative bodies.

6.

To restrict one single branch from growing supreme and

encourage cooperation among branches, government legal

systems often apply separation of powers to balance their

branches, which is achieved through a framework of checks

and balances. Thus, separation of powers is important for

its balance functions. Secondly, its importance lies in

that it allows for a systematic regulation of the branch

powers. New Zealand law is based on the idea of

separation of powers through constitutional safeguards.

7.

One source of the New Zealand constitution is a set of

statutes or Acts of New Zealand Parliament. Another

source is decisions made by the New Zealand Courts. At a

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basic level, New Zealand constitution is largely based on

and is similar to English law to a large degree. In

addition, part of uncodified NZ constitution also

originates from unwritten constitutional conventions etc.

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Section B

1.

a) A Bill is supposed to go through the following stages

in two Houses in order that it can be a Parliament Act.

The process consists of first reading, then second

reading, committee state, and report stage and finally

third reading. Then, it can be presented the bills to

parliament. Bills should be interpreted through

explanatory notes. The bill legislation purpose should

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also be interpreted. Moreover, after presenting the bill,

the bill should subject to close scrutiny. Then, it goes

through the committee stage. Evidence should be collected

to support scrutiny and the evidence-taking sessions. At

last, it undergoes carry-over. Then, after post-

legislative scrutiny, the bill finally connecting with

the public though consultation stages and dissemination.

b) The Select Committee Stage is of great importance for

the bills, as it is used for the detailed information

concerning the bills. The provisions concerning the bill

are discussed and also closed questioned at this stage.

The stage is for scrutiny based on the expertise

knowledge of the Select Committee to make sure that the

Bill to be passed is subject to a closer scrutiny level

than the existing system of other kind of committees.

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2.

a) Two disadvantages include concerns about the

parliament’s accountability and being criticized for

its being undemocratic. One obvious advantage is that

it saves time.

b) If the person or power conducting delegated legislation

exceeds its power, the delegated legislation is

regarded as ultra vires or invalid by the court.

Section C

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a) The literal rule of statutory interpretation is

supposed to the first rule adopted by judges. According

to the literal rule, the words of the statute should be

granted with their ordinary and natural meaning, and the

judge should not seek to give a gloss about the words or

attempt to interpret the statute.

b) Barney would not be liable for the offence under

s6(3) of the Computer Use Act 2011. According to the

literal rule of the statutory interpretation, the Barney

does not use the computers for the purposes of receiving

and sending his email. Instead, he uses his personally

owned lap-top computer to get an important email. The

literal rule of statutory is a kind of statutory

construction, specifying that statutes shall be

interpreted through the use of ordinary meaning of the

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statute language, if a statute does not explicitly define

its terms otherwise. The law should not divert from its

true meaning.

c) Purposive approach is the first rule that a

construction, that is, to think what statutory objective

he had and process to make sense the meaning of those

statutory words. When adopting one of both rules of

statutory interpretation, judges may depend on a

secondary or presumption aid to hep them make decision.

d) For the intrinsic aids, the act has its own

interpretation part for special words about “computer”.

In Computer Use Act 2013, “computers made available for

student use by the educational institutions” implies that

the computers refer to those by educational institutions,

rather than ones personally-owned. For the extrinsic

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aids, some assistance outside the Act ordinary words.

According to Treaty, Barney has the right to use his own

computers. Barney should not be liable for section 6(3)

of the act.

Section D

Question One

1

a) False

According to Mitchell (2005), for contributory

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negligence, both the defendant and the plaintiff are

responsible for the damages or injuries, rather than “a

complete defence to any claim brought in negligence”.

b) False

Persons who employ independent contractors to do work are

usually not liable for the harm caused by these

contractors to third parties.

c) True

My reason for this is that in the case of independent

contractors, the defendants are liable for all the lose

they causes.

d) True

To establish whether a defendant is liable for a claim in

negligence, the court should first determine whether the

defendant has a factual causation with the plaintiff. In

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other words, the court should first make clear whether

the plaintiff’s damage is directly or indirectly related

to the defendant.

Question 2

Above all, to establish claim in negligence, it is

necessary to identify the four essentials for negligence

in this case. Since both It’s a Flame Limited and Joe

meet the essentials for the tort of negligence: Above

all, both It’s a Flame Limited and Joe owed Peter, the

plaintiff a duty of care. Secondly, there is a breach of

duty of care involved in the case (Witting, 2005). Joe

broke the corporate policy that he should stay on the

site for on hour required after completing the work. If

It’s a Flame Limited can provide a valid contract, then

it should be responsible for its employees behavior.

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Thus, it should also be sued together with its employee.

After the work, he eagerly joined his workmates for a

beer. Thirdly, the plaintiff, Peter suffered from a great

loss of his new house due to the breach of duty and the

loss suffered thus was not too remote from the tortious

act of Joe and his company. Joe is an individual providing

services for It’s a Flame Limited in order to get payment

can be classified as an employee. He works for and is

controlled by this company. In the end, the factual

causation is the Joe’s act of not staying on the site as

required by his company for an hour and he and his

company can be sued for the value of harm, that is, the

loss of Peter’s new house. According to the law of

negligence, Peter should successfully sue both.

As for vicarious liability, it is a form of secondary

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liability arises from the common law. There are three

factors for vicarious liability of It’s a Flame Limited.

Above all, the alleged employee Joe has committed a tort.

Secondly, he was the employee of the defendant It’s a

Flame LimiteThird, the tort was committed by Joe’s acting

during his employment. Therefore, in this case of

vicarious liability, the responsibility of the

organisation should take responsible for the acts of

their employees, since it has the duty to regulate or

control its employees’ activities. The vicarious

liability is originated in the tort principle of the

organisational liability.

The new house totally burned, specific damages are not

recoverable (Witting, 2000). Therefore, compensatory

damages involve Peter's new house losses. The also

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compensation should compensate Peter in a way to put him

back to the position he was before Joe and its company's

negligence act.

To conclude, It’s a Flame Limited and Joe’s act meets the

four essentials of negligence claim, that is duty of

care, breach duty of care, damage and factual causation.

In this case, vicarious liability is involved since It’s

a Flame Lmited should take responsibility for Joe’s act.

Furthermore, as damage caused, specific damages can not

be recovered. Thus, Joe and its company should compensate

for Peter’s losses in a way to put him back to the

situation before the negligence.

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References

Barrett, Jonathan & Strongman, Luke. (2013). Sovereignty

in Postcolonial Aotearoa New Zealand: Ambiguities,

Paradoxes, and Possibilities. PoLAR: Political and Legal

Anthropology Review. 36, (2), pp. 341–357.

Bigwood, Rick (2001) Legal Method in New Zealand.

Butterworths, Wellington.

Kramer, M. (2009). Moral principles and legal validity.

Ratio Juris, 22(1), pp. 44-61.

Mikaere A & Milroy, S. (2001) “Treaty of Waitangi and Maori Land

Law” [2001] NZ Law Rev 379.

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Mitchell, P and Mitchell, C (2005) ‘Negligence liability

for pure economic loss’ Law Quarterly Review, 121, pp.

194.

Melvin, Geoffrey. (2000). The Claims Process of the Waitangi

Tribunal – Information for Claimant. Waitangi Tribunal,

Wellington.

Joseph, Phillip. (2001). Constitutional and Administrative Law in

New Zealand, 2 ed, Brookers, Wellington.

Stokes, Evelyn (2002) “Individualisation of Mäori Interests in Land.

Te Mätähauariki Institute, University of Waikato.

Witting, C (2005) ‘Duty of care – an analytical approach.

Oxford Journal of Legal Studies, 25, pp. 417.

Witting, C (2000) ‘Physical damage in negligence’ Cambridge

Law Journal, pp. 189.

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