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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.
Y i q u n W e i 1 0 0 0 1 6 9 5 0 P a g e | 21
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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