Fitzgerald v Muldoon [1976] NZSC Really good case for exam

 
Who was the plaintiff?
•Fitzgerald
◦Public servant working underneath the Muldoon government
 
Who was the defendant?
•Muldoon
◦National prime minister
 
What made Muldoon so powerful and polarizing?
•He was also minister of finance as well as prime minister
◦He made the decisions to fund whatever he wanted to do
•Almost abused the first past the post system
•Most powerful prime minister in New Zealand history
 
Material facts?
•He opposed the Superannuation scheme
•He announced that the scheme would be immediately halted
•Robert Muldoon didn't consult parliament
•This went against section 1 of the bill of rights act 1688
◦"The pretended power of suspending laws, by regal authority, without consent of parliament, is illegal."
•The court ruled it out, as it was a breach of the bill of rights
 
Reveals that the executive in our country is not very powerful and illustrates parliamentary supremacy.
Illustrates the separation of power as it shows that the executive can be checked by the legislature.
 
Washington Redskins
Dallas Cowboys Murchison – friends with Russell Means
 
Garage Band – The Slants
-       Applies for trademark, it’s offensive against Asian Americans
-       Goes to the Supreme Court
-       Provision in the Act preventing disparaging names, argued it was against the First Amendment
-       Justices decide that the provision of the Trademarks Act is unconstitutional
 
Offensive names starting off an insult and being renamed
 
This could not happen in New Zealand
-       No written constitution
-       No BOR which enables the courts to strike down legislation
 
Provision in NZ Trade Marks Act outlawing offensive trade marks
Section 17 (2) which allows the commissioner of TMs to object to registration if it is considered offensive to
a significant section of the population including Māori.
 
AN EXAMPLE OF THE TREATY IN ACTION
 
Government began consulting with the tangata whenua about offensive trade marks in 1990.
 
Because of Treaty obligations, Parliament passed the Act which provides that offensive trade marks won’t
be registered.
 
It took 15 years of consultation for the Act to pass.
 
Provided for the establishment of an Advisory Committee of experts in te reo, tikanga & Māori law.
-       If there is te reo or Māori imagery in a trade mark set to be registered, the Committee will decide
whether or not its offensive
-       Provides advice to the Trade Mark Commissioner
-       You can appeal a TM Commissioner decision
 
None of this would happen in the USA because it would be an infringement of the First Amendment
 
ALL ACTIONS OF THE EXECUTIVE CAN BE JUDICIALLY REVIEWED
Grounds for judicial review:
-       Ultra vires
-       Breach of natural justice – there hasn’t been a proper process (if the Committee didn’t give the
applicant the opportunity to make submissions – if you will be affected by the decision you have to have the
opportunity to be heard audi alterum parti
-       Wrensbury Unreasonableness – if no reasonable tribunal could have come to the decision
A judge will not second guess the offensiveness of a mark given the quality of the panel.
 
Trade mark law has two causes of action
a.     Common law invention, you can get common law remedies or equitable remedies e.g., account of
profits
b.     Trade marks Act 2002 – statute
 
Pioneer Hi-Bred Corn Company v Hy-Line Chicks Pty Ltd [1978] 2 NZLR 50
 
Tips for exam:
 
•Plan for no longer than 5 mins per essay
•Leave time to check over all of the exams
•Write down what times you need to move onto the next question
◦E.g. 10:00 - plan Q1
10:05 - write
10:20 - plan Q2
Etc.
•Use headings
 
Planning example:
•What is the question asking?
•Why is this important?
•What else can I say? / what does this mean for the law?
 
Analysis:
•Because why?
•Why do I think this?
•How so?
•Am I explaining this well?
•Are you addressing the question?
 
Practice paper break down:
 
Q1) Explain the legislative process and discuss why the Select committee is essential for this process.
-Discuss both the advantages and disadvantages of select committees in your
answer
[25 points]
 
•Break down the legislative process
•What is a select committee
•Advantages
•Disadvantages
•Which is higher
•Why the legislative process is important in general
 
 
Q2)  “Parliamentary supremacy in New Zealand has no flaws, and it is not problematic that the legislature
and executive overlap,” Evaluate this statement and why you agree/disagree. 
[25 points]
•I disagree
•Parliamentary supremacy in general
•Parliamentary supremacy in NZ - why this is good/ bad
•Separation of powers
•How the legislature and executive overlap - my viewpoint on that
•Summary of your view, recommendations for the future
 
The overlap of the legislature and executive is problematic as it does not abide with the doctrine of the
separation of powers.
 
 
Q3) “Judicial review is not an important aspect of the separation of powers.”
Analyse this statement and state whether you agree with this opinion.
[25 points]
 
•I disagree
•What judicial is - rule of law source
•Why it is important/ why it’s not important
•If it needs to be worked on
•Summary of your opinion
 
Judicial review is fundamental to the checks and balances process.
Judicial review is the process of the judiciary scrutinizing the executive.
 
Q4)  Parliament, common law, equity, Te Tiriti and Tikanga Māori have developed throughout New
Zealand.  Compare New Zealand’s previous legal system to the current legal system today.
[25 points]
 
 
•Parliament
◦Origins of parliament from England
◦When it first came to NZ
◦How its transformed now
◦Is this good/ does it need work
•Common law
◦Origins
◦When it first came to NZ
◦How it transformed now
◦Is it good/ does it need work
•Equity
◦Origins
◦When it first came to NZ
◦How it transformed now
◦Is it good/ does it need work
•Te Tiriti
◦Origins
◦When it first came to NZ
◦How it transformed now
◦Is it good/ does it need work
•Tikanga Māori
◦Origins
◦When it first came to NZ
◦How it transformed now
◦Is it good/ does it need work
•Influence of parliament, common law, equity, Te Tiriti and Tikanga Māori today, why they are important to
talk about.
 
FPP --> MMP
Tikanga/ Māori before they were included in the legal system
 
[Total 100 points]
 
 
Company A is the owner of a registered trade mark for POLAROID for sunglasses. Company B starts using
the brand SOLAVOID on sunglasses. Company A is not best pleased. It asks your advice on whether it can
stop Company B’s use of SOLAVOID on sunglasses.
1.     What causes of action does Company A have?
COA – What they can do and what they can bring a claim under, SET OF LEGAL RULES WHICH
ALLOWS SOMEONE TO BRING A CLAIM – some form of wrongdoing must have occurred
2.     What is the best for A?
3.     What remedy best suits A?
4.     Is SOLAVOID confusingly similar to POLAROID?
LEGAL REALISM
The Black Letter Lawyer – the legal formalist
When deciding a case, this judge employs traditional techniques of legal reasoning. Apply the rule to the
facts, analogy, deduction.
Judges can look at the purpose of a rule and balance up whether or not the fact situation, and the rule being
applied to that fact situation, would uphold the purpose of the rule. Purposive statutory interpretation.
 
Traditional techniques of legal reasoning don’t explain the way judges, particularly in appellate courts,
decide cases. Non legal factors also play a role. The way that judges respond to the facts of the case is the
biggest other factor.
 
Note that the American realists were talking about appellate level cases. If you are appealing to a high court,
you must have some semblance of an argument.
 
Cases with no hope of winning in an appellate court have had lawyers advise against going further.
 
Robinson & Harmon Damages
-       The breacher of a contract must pay damages such as to put the innocent party in the same position as
they would have been in if the contract were performed.
Difference in value measure
 
-       Allow the innocent party to have substitute performance. Reinstatement measure of damages.
Reinstating the contract.
Indeterminate rule.
 
The courts will grant reinstatement when it is reasonable to do so.
-       Luxley
Australian Case: TabCorp
The difference in these two decisions were not done by legal reasoning they were responses to fact situations
and developed by the cultural context.
 
Saturday 11th June 2:30pm
2 hour, open book, online exam
4 questions which cover the entire course
You have to answer all four
One will be on Mamari’s section of the course
Three will be set by Paul
1.     Constitution
2.     SOP
3.     Judiciary in law-making
Nothing on jurisprudence/legal realism
Each question is worth 25 marks
 
Use headings & examples
 
The common law is harsh because it only has damages
 
Economic Stabilisation Act