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Browsing by Author "Orsman, Jessica"

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    Robot Arenas Ltd v Waterfield: An Exception to Conversion's Strict Liability for an Occupier Who Finds Goods?
    (Te Herenga Waka—Victoria University of Wellington, 2010) Orsman, Jessica
    This paper addresses the liability of an occupier who finds goods on his or her premises, and subsequently destroys them. In the 2010 case of Robot Arenas Ltd v Waterfield, Mr Colin Edelman QC has introduced an exception for occupiers to avoid liability in conversion for doing so. The exception, based on the position of the occupier as an “unconscious bailee,” is examined, and justified as an acceptable undercutting of the traditional strict liability of conversion. The legal solution in the New Zealand context is then examined, where it might also be possible to apply a defence of contributory negligence to the tort. The paper concludes that the most desirable option for a New Zealand court addressing the same scenario would be to exclude contributory negligence, and follow the Robot Arenas exception. This way the proprietary purpose of conversion would be maintained.
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    The Treaty of Waitangi as an Exercise of Māori Constituent Power
    (Te Herenga Waka—Victoria University of Wellington, 2011) Orsman, Jessica
    This paper analyses the Treaty of Waitangi in light of Carl Schmitt’s concept of constituent power – the idea that the people hold the power to make fundamental political decisions to determine their form of political existence. It finds that in 1840, Māori, as the holders of constituent power, made a fundamental political decision to share authority between themselves and the Crown. This fundamental political decision is a key element of the New Zealand Constitution; limiting potential constitutional changes that would override the substance of the decision, and requiring changes to the current legal framework in order to comply with the decision to share authority. Only a further exercise of constituent power by Māori can legitimately override or significantly change the fundamental political decision in the Treaty.