authorities. Such court stimulation of a review of the law in a particular area can be valuable
in areas in which there might otherwise have been little pressure for change. The decision of
our Court of Appeal in Quilter v Attorney-General6 certainly stimulated discussion of the
issue of same-sex marriages.
Sometimes the courts are invited to effect a significant change or development in the law.
Pressing factual circumstances and compelling argument may point to injustice in the
application of established principle. Consideration then must be given to the issue whether to
leave the matter, duly highlighted, for legislative attention or whether to change legal
principle by judicial decision. Which course is adopted depends on many factors. I mention a
few. Much depends on the nature of the issue. If it is in a field of law largely developed by
the courts there will be less reluctance to make changes. If it is in an area where the
implications of any change are unclear so that the issue would benefit from wider research
and analysis than the courts are equipped to employ, there will be great reluctance to make
any change. The existing principle may be long-standing and underlie entrenched practices
and commitments. There may be circumstances of urgency linked with the recognition that it
will always be open to the legislature to overrule or modify the change. It may be that on
close analysis the existing principle is not soundly based. There may be discernible policy in
legislation in related areas indicating a direction for change. The existing principle might rest
on superseded social values. There might be current law reform work that is expected to
review the existing principle.
Weighing these and other relevant factors can result in differing judicial views. This is
evident in a number of recent decisions of the New Zealand Court of Appeal.
In 1983 the Court considered whether a method of medical treatment should be capable of
attracting patent protection.7 It was said on the one side that the grant of monopoly rights in
this area could interfere with the ability of the medical profession to provide patients with the
best appropriate treatment. On the other side it was contended that it was anomalous to
exclude from protection meritorious inventions in just one field when the definition of
invention in the Patents Act drew no distinction so that current practice was unsupportable.
6
[1998] 1 NZLR 523
7
Wellcome Foundation v Commissioner of Patents [1983] NZLR 385