Date: Wed, 28 May 2008 22:31

From: Geoff McLay

Subject: Abuse of rights

There is no question though, Peter, that the prime necessary doctrine exists generally at common law, and has been acknowledged as existing in New Zealand. The problem that NZ courts have is actually finding a case in which it can be appropriately applied, despite Mike Taggart's arguments that they should. For those overseas there are two NZ cases where the Court of Appeal refused to recognise that access to Auckland's super casino, Skycity, was such a case - the casino had banned the plaintiff who was running some kind of gambling syndicate on the poker machines. More interestingly the NZCA has held that in cases of access and price, monopolies are regulated by the Commerce Act and not the common law.

Geoff

-----Original Message-----
From: Peter Watts  
Sent: Thursday, 29 May 2008 9:22 a.m.
Subject: Abuse of rights

In a short article to be published in the June 2008 issue of NZ Business Law Quarterly I make the case against an abuse of rights doctrine, in the context of a refusal to accept applicants for membership of sports clubs. There have been a number of New Zealand cases that have indicated a willingness to review the conduct of those with monopoly/oligopoly power, not on the basis of implication in a licensing statute or contract, but on raw common law jurisdiction. I think this an insidious development. I am happy to make the pdf available to anyone interested.

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