The Tort of Refusing to Contract?

In at least two decisions the New Zealand Court of Appeal has countenanced that the common law, independently of any express or implied statutory rule, might require a party to contract with someone it does not want to. These cases involved private sporting bodies, but the supposed principle might go far wider. This article argues that the common law should not force a non-public party to enter into any contract. Only an Act of Parliament (it is accepted that an implication may be sufficient) should force someone to contract with another person. Freedom of contract implies freedom not to contract. The article reviews the historic precedents that are said to warrant common law intervention, including the history of common callings, the writings of Hale CJ, and the other slim pickings that have been used to make a case for compulsory contracting, and finds that these sources, neither alone nor collectively, support the argument for common law intervention. Certainly, it is specious to say that because a trader seems willing generally to sell to members of the public that in itself founds a public duties. Freedom to contract should not be seen as some sort of State gift. If one asks how one could classify any actionable refusal to contract, it would have to be a common law wrong of some sort, a tort. Calling it a form of judicial review is another subterfuge