Authors and legal professionals all mostly argue that the decision goes against law and is therefore wrong, there is, which I consider, a strong argument for it being right. Statute is our supreme law and it is thus constitutional that parliament has complete sovereignty when it comes to our legal system. To that effect judges are only there to apply and interpret the law. This brings forth the question of, why wouldn’t we apply the Contractual Mistakes Act 1977, when parliament enacted it to help the courts to mitigate arbitrary effects of mistakes on contracts? As the Act is enacted by parliament for this purpose, it is arguable that it should incorporate mistakes of intention between parties as a mutual mistake, to avoid arbitrary and unfair results in regards to contractual obligations. The courts can use their power of interpretation, which is thrust upon them by our constitutional arrangements and Interpretation Act 1999 to try and make the law as fair as possible in the specific circumstances, which they did in Conlon. Another reason why the Act is interpreted correctly in Conlon is that although it might be controversial on some aspects of contract formation, it is made very clear by parliament that discretion by the judges are important in the Act, and the Act reimburses the judge’s power to be able to make judgments on certain matters. This once again enforces the idea that judges have and should have the power to make judgments when it comes to the type of mistakes that would be included in the Act. Another reason for agreeing with the judgment in Conlon is the policy factors. It is debated on many levels whether policy should influence our legal rules. In considering this issue, it...
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...as a whole instead of just the Act as a whole and with a communal purpose, it possibly would’ve been easier to derive the desired result without standing to change the entire law of contract. The combination will increase judicial policy, thus making it easier for our judges to interpret the law.
To conclude, currently in New Zealand there is a lot of controversy surrounding any activist judicial decisions. The reason for this is the deviation from the norm and the possibility of the causation of uncertainty in our law. Reasonably, the law has to be certain but are we being too concerned with the certainty of the law that we allow injustice to occur? The courts in New Zealand has to incorporate the element of discretion given to them to enable a fair and just decision, and thus to reflect the intention of parliament of creating a fair and just society.
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