Reference no: EM131830727

Commercial Law Assignment

Learning Outcome -

• Explain core elements of the New Zealand legal system and apply Section 5 (1) of the Interpretation Act to a legislative provision
• Apply the basic principles of the Tort of Negligence to a given situation

Question 1 - Law/ethics/morality and societal context

(a) It has been said that any human society that attempts to survive without law rapidly degenerates into chaos.  (Hubbard, Thomas, Varnham (2013) Principles of Law for New Zealand Business Students (5th ed) Pearson, p2).

Describe (2) functions of law in our society.

(b) Jane has been watching with interest the recent advertising campaign by the organisation known as "Stop Factory Farming".  She is horrified and dismayed at the images portrayed of caged and unhealthy pigs and chickens.  Jane knows of a poultry farm near her.  She is convinced that it is practising factory farming and wants to do something about it.  Late one night, Jane sneaks onto the Farm's premises and graffiti's the words "STOP FACTORY FARM TORTURE" in bright red words over the farm's sheds.  Unfortunately security cameras catch Jane on film and she is now being charged with trespass and vandalism.

With reference to Jane's conduct (described above), discuss the relationship between law and morality in the regulation of people's conduct.  Your answer should address:

• What distinguishes legal obligations from moral considerations;
• How each influences personal behaviour;
• Why Jane has acted as she has.

Question 2 - Treaty of Waitangi

(a) It has been said that two sources of friction between Maori and Pakeha in relation to the Treaty of Waitangi are "sovereignty" and "land and associated property or treasures".  With reference to the Treaty of Waitangi, discuss why these issues have arisen.

(b) The decision of the Court of Appeal in NZ Maori Council v Attorney General [1987] 1NZLR 641 was seen as a landmark case in the history of the Treaty.  Explain two (2) reasons why this case is considered legally significant. (Note: you are not expected to summarise the facts of the case.)  

Question 3 - New Zealand constitution

"The American Constitution is the greatest governing document, and at some 7000 words, just about the shortest" (Stephen Ambrose-US Historian)

For New Zealand discuss what makes up our constitutional status. Then explain what the advantages and disadvantages are of having one constitutional document vs the position on New Zealand.

Question 4 - Classifications of Law

(a) In relation to each of the following, describe whether it is classified as civil or criminal law:

(i) A Judge imposes a 10 year jail term for aggravated robbery;

(ii) A claim for breach of contract in relation to the supply of services;

(iii) A person suing their neighbour for damages suffered when an overhanging tree branch fell onto the roof of their house;

(b) Explain the difference between Public Law and Private law

Question 5 - Parliamentary process

Each piece of legislation in New Zealand passes through a process. Briefly describe that parliamentary process an Act goes through before it becomes law.  (Note: you may use a diagram in your answer if you choose).

Question 6 - Delegated legislation

(a) Describe what delegated legislation is.

(b) Describe one (1) advantage and one (1) disadvantage of delegated legislation.

(c) Explain what it means when delegated legislation is "ultra vires".

(d) Give an example of delegated legislation and include who has delegated the legislation and to whom.

Question 7 - Section 5(1) Interpretation Act 1999

The Publications Protection Act 2009 has just come into force. The preamble provides:

"An Act to regulate objectionable material contained within books and multi-media which may be injurious to the public good". The word "objectionable" is not defined in the Act.

The Hansard report of the speech introducing the Bill records that the Bill :"is necessary to protect New Zealand citizens from the exposure to objectionable material which may be injurious to the public good". Reports of the debates in Parliament record that Parliament "did not want to limit the public's right to import material generally, but at the same time, felt there needed to be more accountability for importers to ensure the material they bring into the country is not objectionable."

Section 3(1) of the Act provides:

"No person shall import or cause to be imported any objectionable material on any paper, photographs, video or any other material."

Gazza, the owner of a trade me electronics company, imports 100 hand held devices with preloaded movies.  He believes they are all children's movies. In fact the hand held devices include  adult movies containing objectionable material. Customs seize the shipment. They prosecute Gazza as the material is deemed to be objectionable.

Applying Section 5(1) of the Interpretation Act 1999 advise Gazza in an email style communication what if any liability there is.

• Describing what the law of statutory interpretation is
• Applying it correctly to Gazza's case
• Recording that in a easy to understand, logical email communication

Question 8 - Overview of the role of courts and tribunals

Show in a diagrammatical form the hierarchy of the courts in New Zealand. Ensure that you show the place of our highest court, those below it including examples of tribunals and what category (categories if more than one) of law they each deal with (their jurisdiction) . Marks are allocated as 3 marks for showing 6 different courts and tribunals and 3 marks for correctly showing what their jurisdiction is.

Question 9 - Doctrine of precedent within the hierarchy of courts

(a) The doctrine of Stare decisis is one of the cornerstones of our legal system. Explain the doctrine and how it influences the hierarchy of courts.

(b) Identify whether a previous decision from each of the following courts would be binding, persuasive, or have no effect on the High Court of New Zealand if the High Court had a case before it which concerned material facts that were similar:

(i) A decision of the United Kingdom House of Lords

(ii) A decision of the High Court of Australia

(iii) A decision of the Court of Appeal of New Zealand

Question 10 - Role of case law

New Zealand has at the heart of its judicial system a tradition of case law. Find a case from the disputes tribunal database of decisions: Disputes Tribunal of New Zealand and answer the following:

(a) What is the referee careful to do with laying the case out and showing how they have reached their decision?

(b) Do you think having this embedded case law tradition is a good/bad thing and give your reasons.

Question 11 - Vicarious liability and Negligent action

Simon Beemer operates a garage carrying out motor vehicle repairs and which is also licensed to issue warrants of fitness (WOF).  Simon's friend John owns an aging 1990 Toyota Camry which he is planning to sell.  The car requires a new warrant of fitness, so John takes the car to Simon's garage and asks Simon if he can take care of this.

Simon is happy to help but is quite short-staffed at present.  Simon gives the job of the WOF inspection to a new mechanic, Jack.  Jack has been employed from a temping agency for the week due to the sickness of one of Simon's regular employees.  Simon tells Jack not to be too tough with the inspection because John is a friend of his.  Jack takes the car for a quick drive and then issues a WOF without having a look under the body of the car or carrying out any other inspection.

A week later John sells the car to Sally.

Three weeks after buying the car Sally is backing out of her driveway when the brakes on the car fail.  The car crashes into a power pole which cuts off the power supply to her home.  Sally runs a very successful online sales and distribution business from her home.  The loss of power causes her IT systems to fail and as a result she loses business worth $10,000.  Also, a power surge resulting from the outage causes Sally's TV to short circuit and blow up.  Replacement of the TV will cost Sally $4,000.  In addition to this, Sally's car is written off and she has been seriously injured.  The car is worth $5,000.00

Accident investigators ascertain that the cause of the accident was a brake fluid leak coupled with worn brake pads.  It is also found that these issues should have been apparent to a suitably qualified person carrying out the last WOF inspection.

With reference to the law of negligence and vicarious liability advise whether Sally could successfully sue and recover any or all of the losses incurred from Simon Beemer and/or Jack.

Note:  Your answer to this question should be in the form of a legal analysis.  That is, a detailed discussion identifying the relevant legal issues arising from the given scenario, reciting the relevant law and legal tests needed to establish Sally's claim (supported by appropriate case law), applying the law to the facts and arriving at a valid conclusion.