Courts influence Commission's work

Publication Date 
03 July 2017

Late last year two farmers in the High Court case, Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 2838, showed their bank was liable for giving them bad financial advice. However the bank did not need to pay any damages because its contract with the farmers precluded any liability in contract and the Contractual Remedies Act 1979 precluded the farmers from recovering damages in tort.

Justice Palmer called this a gap in the law and referred the problem to the Law Commission to consider.

Justice Palmer joins a line of judges who have, in their decisions, encouraged the Law Commission to review legal issues. 

The Law Commission receives most of its references from the Minister Responsible for the Law Commission, but courts also have an important role in influencing the issues the Commission considers.

For instance, in Morton v R [2016] NZSC 51, [2017] 1 NZLR 1, the Supreme Court expressed concern that the law was not clear on using a person's conviction as evidence in criminal proceedings or as evidence in the trials of co-defendants.

It called on the Law Commission to review section 49 of the Evidence Act 2006.

That issue now forms part of the Law Commission's second review of the Evidence Act.

Meanwhile, in Siemer v Solicitor-General [2009] NZCA 62, [2009] 2 NZLR 556 at [116], the Court of Appeal said there were a number of difficult issues when applying the Bill of Rights Act 1990 to contempt of court laws.

"Consideration should be given to legislative reform in this area of the law as happened in the United Kingdom," the Court said.

The Commission’s review of the law of contempt of court has addressed these issues in light of the later decisions of Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 and Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.