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Coxhead, Craig; Ruru, Jacinta --- "Book Reviews" [2004] WkoLawRw 7; (2004) 12 Waikato Law Review 151

BOOK REVIEWS

CIVIL REMEDIES IN NEW ZEALAND, by Justice Peter Blanchard (Consulting Editor), Wellington, Brookers, 2003, 768 pp. New Zealand price $198.00 gst inclusive.

Civil Remedies in New Zealand is New Zealand’s first comprehensive civil remedies book. It is acknowledged by the consulting editor, the Right Hon Justice Peter Blanchard, that the remedies noted in the book can be found in other sources, but this book brings civil remedies together as a convenient and useful reference point for practitioners, academics and students.

There is no doubt that in time Civil Remedies in New Zealand will become the first reference point for practitioners when advising clients of potential remedies. Considerations of remedies by practitioners will now be easier, which was one of the intentions of the book (p vii):

How many times is a case won on liability but lost on remedy because a legal adviser has given no or inadequate thought to where a finding of liability may lead? Unfortunately all too often. An object of this work is therefore to encourage earlier and greater concentration on the remedies that might be available if the claimant actually prevails.

The first part of the book is a far-reaching account of the law relating to compensatory remedies in contract, tort and equitable damages. Each chapter while extensive is organised in an easy to follow manner with a thorough examination of the different aspects relating to compensatory remedies, whether they be in contract, tort or equity. While we would expect the authors to cite cases and statute as authority, the wide range of other references and sources is noticeable in most chapters. This is mostly apparent in the chapter on equitable damages where the author Geoff McLay incorporates an interesting academic analysis of the growth and development of equitable damages since Day v Mead [1987] NZCA 74; [1987] 2 NZLR 443 (CA). Also noticeable in this chapter, as it is in other parts of the book, is the simple manner in which the academic arguments are discussed, making the academic issues easy to understand and very informative.

Part 2 of the book considers injunctions, freezing and seizing orders, Anton Pillar orders and specific performance. There is clear advice as to the legal requirements for these remedies. The chapters in this part are extensive and useful to practitioners, with practical advice given in relation to a number of areas including a checklist of what documents need to be filed in Court. Previously practitioners, academics and students would have most probably relied on The Laws of New Zealand – Civil Procedure: High Court, or the various New Zealand Law Society seminars on Injunctions and Other Emergency Relief. One would presume that this chapter will become the first point of reference when considering remedies of prohibition and compulsion.

Ross Grantham and Charles Rickett have written part 3 of the book on Return of Property/Disgorgement. The chapters in this part give a thorough examination of matters such as the law of restitution, unjust enrichment, personal restitutionary remedies, and disgorgement. Of particular interest is Grantham and Ricketts’ clear and easy to understand section on “accounts”, which by their own admission “remains a somewhat arcane and confused area of law” (p 402). One would have to agree with the authors’ view that the law of restitution is “one of the most important and far-reaching developments in recent history of the private law of obligations” (p 364). In their chapter on Proprietary Remedies, Grantham and Rickett discuss the remedies available through constructive trust, resulting trust, equitable trust, subrogation and rescission.

Statutory remedies and relief are covered in part 4 of the book but the discussion is confined to section 9 of the Contractual Remedies Act 1979, section 7 of the Illegal Contracts Act 1970 and section 43(2) of the Fair Trading Act 1986. There are numerous other sections of statutes that provide civil remedies, such as particular sections of the Credit Contracts Act 1981, Residential Tenancies Act 1986, Contractual Mistakes Act 1977, Credit (Repossession) Act 1997, Crown Proceedings Act 1950, Family Proceedings Act 1980, Companies Act 1993, Minors Contract Act 1969, Property Law Act 1952, and Employment Relations Act 2000 to name a few. It is not clear why the book concentrates on sections from only three particular Acts. What is noted is that many of the principles discussed in this part are also relevant to many other statutory provisions that provide civil remedies. It would, however, have been helpful to have had remedies under the Consumer Guarantees Act also discussed.

Part 5 deals with exemplary and aggravated damages. The chapter on exemplary damages begins with an academic recount of the development of exemplary damages at common law, followed by analysis of the case Daniels v Thompson [1998] NZCA 3; [1998] 3 NZLR 22. The chapter concludes with practical advice for practitioners regarding how exemplary damages are to be pleaded. The somewhat brief chapter on aggravated damages also incorporates a section advising on the pleading of aggravated damages. Practical advice about how different remedies can be pleaded would have been helpful in relation to many of the other civil remedies discussed in the book. It would also have been helpful if each chapter was formatted in a similar way and provided the practical advice as to pleadings along with a checklist.

The increasingly important declaratory relief is discussed in part 6. The chapter assesses declaratory relief through both the Declaratory Judgments Act and the Court’s inherent jurisdiction. Part 7 discusses the doctrine of contribution which Beck describes as “a cause of action entitling a defendant who has paid the plaintiff to recover anything paid beyond a fair share of the liability” (p 620).

The information in part 8 relating to Official Information Acts, while interesting and informative, appears to be no more than a summary of the relevant provisions of the Official Information Act 1982, Local Government Official Information and Meetings Act 1987, Privacy Act 1993 and the Human Rights Act 1993.

The final part of the book covers the important matter of costs. While the chapter concentrates in the main on costs in both the District and High Courts there is also reference to costs in the Court of Appeal and Privy Council. The author of this chapter also provides a helpful checklist in relation to High Court costs.

The book is comprehensive although not definitive in terms of examining every possible civil remedy available. There are a few areas which have not been traversed, such as remedies under the New Zealand Bill of Rights Act as per Baigent v Attorney General [1994] NZCA 287; [1994] 3 NZLR 667, remedies under the Consumer Guarantees Act and the Credit Contracts and Consumer Finance Act. The few exclusions do not detract from this excellent resource.

Given the thorough and useful examination of civil remedies that the book undertakes it is certain that Civil Remedies in New Zealand is (as its promotional pamphlet claims) “the definitive reference point for practitioners, judges, and law students seeking to find the appropriate remedy for liability in civil law”.

Overall, this book is an excellent resource for all involved in the law. It is an essential resource for practitioners working in civil litigation. The book sets out the relevant law relating to particular areas in a clear manner and provides useful practical advice. The book is an essential text for students studying towards a law degree given the number of topics it covers and the commentary relating to different remedies. The book will also be essential reading for academics lecturing in the various areas of law covered in the book.

Craig Coxhead[∗]

INTERNATIONAL LAW AND INDIGENOUS PEOPLES, by S James Anaya (Editor), Ashgate, Aldershot, England, 2003, xxi, 483pp. Publisher’s price £110.00 (hardback).

As part of the Ashgate Library of Essays in International Law, this volume is dedicated to “one of the most dynamic areas on international law today” – the rights and status of indigenous peoples (p xi). The volume brings together eleven previously published articles under several themes that look to the past, present and future. It is an important and useful addition to the Ashgate Library series.

Anaya introduces the volume by explaining how indigenous peoples have used international law to highlight and progress sovereignty and rights issues within their colonialised homelands. Two strands of international law are identified. On one front, indigenous peoples have used it to invoke legal rules relating to the acquisition and transfer of territory by and among states so as to demonstrate the illegitimacy of domestic state assault on indigenous sovereignty. On another front, indigenous peoples have used it to invoke the moral and ethical discourse relating to the international human rights movement so as to portray indigenous peoples as groups of human beings with fundamental human rights concerns that deserve attention (p xii). Anaya’s well-chosen eleven essays provide a valuable insight into the domestic indigenous peoples’ struggles for self-determination in the context of international law.

International Law and Indigenous Peoples consists of five parts: historical antecedents and their contemporary significance; the argument for recognition of indigenous sovereignty on the basis of established modern principles; the dynamics and challenges of the contemporary international indigenous rights movement; the emergence and contours of a new indigenous rights regime; and invoking the contemporary indigenous rights regime. Key terms such as indigenous peoples, sovereignty, self-determination, indigenous rights, and minority rights are explored in depth against the international law regime. Many of the doctrines are traced back to their origins. For example, G Marks’ essay discusses the uses of legal history in developing the doctrine of indigenous rights in international law with reference to 16th century Spanish writers.

As a credit to Anaya, the chosen essays provide an insightful, broad range of domestic case studies relating to Australia (Gillian Triggs); east, south-eastern and south Asia (Benedict Kingsbury); Hawaii (James Anaya); the United States (John Howard and Clinebell Jim Thomson); and Canada (Darlene Johnston). References to New Zealand appear in several of the essays. Siegfried Wiessner’s global comparative essay recognises that “the claims of Maori regarding self-government and ownership of land are far from settled, and the violent actions such as the March 1997 sledgehammer attack on the America’s Cup by an indigenous protestor have called world attention to an angry new generation of Maori” (p 271). Likewise, Robert Williams’ “Encounters on the Frontiers” essay acknowledges that “in the sessions of the Working Group and other international human rights forums, the governments of the United States, Australia, and New Zealand – all of which possess exemplary reputations for protecting individual human rights within their domestic legal systems – are among the most frequently cited violators of indigenous peoples’ human rights” (p 176). The volume contains important messages for our country, especially now in 2004.

The current foreshore and seabed controversy has seen New Zealand’s indigenous peoples resort to international law to highlight government abuse of international human rights. In May 2004, Te Runanga o Ngai Tahu, in conjunction with the Treaty Tribes Coalition, took its anger and dismay over the Government’s handling of the foreshore and seabed issue to the United Nations Permanent Forum on Indigenous Issues in New York. There the Deputy Kaiwhakahaere of Te Runanga o Ngai Tahu, Edward Ellison, stated: “We are being stripped of our status as indigenous peoples, and are facing an immediate, and to us, unparalleled threat to the retention of our culture and cultural identity in over 100 years” (see Federation of Maori Authorities website at www.foma.co.nz/hot_topices/details.htm?topicid=122 (accessed 7 July 2004)). Ellison asked the Permanent Forum to assert that states should unreservedly respect customary law and relationships, and that the state of New Zealand should take immediate steps to implement the substantive realisation of cultural pluralism through abandoning its intent to pass the Foreshore and Seabed Bill.

The recourse to the Permanent Forum provided New Zealand’s indigenous peoples with an opportunity to highlight the domestic experience. However, the New Zealand Government has been dismissive of the action, reiterating simply that “the process we have been through fulfils all of our international human rights obligations” (Hon Dr Michael Cullen, “Human Rights and the Foreshore and Seabed” 1 June 2004 Human Rights Commission Speakers Forum speech – to view a copy of the speech see www.beehive.govt.nz/PrintDocument.cfm?DocumentID=19914 (accessed 7 July 2004)). Most Maori, and many others, including the Waitangi Tribunal, disagree (see Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy (GP Publications, 2004)).

Nonetheless, at the very least, the New Zealand experience has been shared with the international community. Or, as Robert Williams concluded in his essay in International Law and Indigenous Peoples, international forums provide “a powerful and empowering instance of the ways in which ... indigenous peoples, through their own stories, can seek to transform legal thought and doctrine about their human rights according to the terms of a different vision of justice in the world” (p 209). New Zealand’s indigenous peoples are clearly playing an active role in seeking to achieve just this.

With consciences being raised as we conclude the International Decade of the World’s Indigenous Peoples (1995-2004) celebrations, and, as a nation, work through the foreshore and seabed issue, International Law and Indigenous Peoples is a timely volume. While it would be possible to hunt through the journals stacked in the law library shelves and individually locate each of the essays, the value of Anaya’s publication is that this becomes unnecessary. In any event, it is highly unlikely that each law school library would even hold copies of the eleven law journals where the essays were first published – for instance, at Otago, only eight of the eleven journal volumes are held. With this in mind, coupled with the excellent thematic approach in bringing the essays together, this book would be a valuable addition to the law libraries throughout the country. Its comprehensive coverage of indigenous peoples’ rights in the international arena is impressive. Its value lies, not in adding anything new to this scholarship in the sense of content, but rather in the themes it strives to emphasise in this field. Academics and students alike would find real value in this book. Despite its hefty price tag, I highly recommend it.

Jacinta Ruru[*]

[∗] Senior Lecturer in Law, University of Waikato.

[*] Lecturer, Faculty of Law, University of Otago.