Whiteboard for 1 May 2008
Recent cases
Income Tax
Discovery of documents of non-parties – following investigation of a number of structured financing arrangements entered into by major banks trading in New Zealand, CIR had issued amended income tax assessments asserting arrangements concerned involved tax avoidance – CIR had also, since, contended that some of the transactions had elements of sham – issue before Court concerned restrictions that tax secrecy legislation imposed on what material might be discovered by CIR in litigation – ultimate issue before Court concerned the extent to which tax secrecy law restricted the CIR, in defending proceedings brought by one bank, from using information held by the Inland Revenue Department that related to business affairs of the other banks – it was accepted in SC that documents of other banks were relevant to issues in BNZ litigation
Leave to appeal was given to Westpac and ANZ Bank National on question of whether s81 Tax Administration Act, or public interest immunity, prohibited the CIR from discovering documents relating to non-party tax-payers, and the nature and extent of any such prohibition – Knight v CIR and CIR v E R Squibb & Sons (NZ) Ltd, considered – argument for Westpac that, in relation to use of information concerning affairs of other taxpayers, the obligation of secrecy must be given full effect by allowing use of such material by CIR only in a manner that did not lead to identification of taxpayers other than those who were parties to the particular litigation
HELD: CA had found that documents in issue were arguably part of the wider commercial context in which transactions of BNZ were to be considered in proceedings – it was clear that if the identity of other banks involved in transactions was not before HC documents would have no utility as evidence – in those circumstances it was reasonable necessary that the identity of the other banks concerned should be before the Court – in terms of s82(1) disclosure was not permitted unless, and to the extent that, it was reasonably necessary for the performance of the CIR’s statutory functions – thus s81 confined use of taxpayer material in a manner which disclosed identity of other taxpayers to situations where that was reasonably necessary – in this case such disclosure was reasonably necessary – s81 itself addressed comprehensively the conflicting principles of taxpayer secrecy and the interests of justice - there was no need or basis for Court to revert to common law principle of public interest immunity – CIR was not, in this case, prevented from discovering documents of non-party taxpayers - appeal dismissed
Westpac Banking Corporation Ltd v Commissioner of Inland Revenue and Ors; ANZ National Bank Ltd, UDC Finance Ltd and Tui Endeavour Ltd v Commissioner of Inland Revenue (SC 66-2007, 67-2007, 14 April 2008)
From the Times
Human rights
The claimant was classed as a danger to the national security of the United Kingdom and the Home Secretary wanted him to be deported to his homeland of Jordan. He was also viewed as a security threat to Jordan and had been convicted in absentia (in Jordan in 1999) and sentenced to life imprisonment. In Jordan, in 2000, he was also convicted of further crimes while absent. It had been alleged that in the 1999 and 2000 trials evidence had been used that had been obtained through torture. The claimant argued that his return to Jordan would breach article 6 of the European Convention on Human Rights because he would be retried on the matters in which he had been previously convicted, and would also be tried on further charges. The Court of Appeal held that the claimant could not be deported to a state where he was a risk of being tried on evidence obtained by torture. Such a deportation would breach article 6 of the European Convention on Human Rights (his right to a fair trial).
Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA Civ 290
Human rights
The claimants were the mothers of two army men who had been killed in Iraq. They had sought judicial review of the Government’s decision to decline their request to hold an inquiry into the factors which led to the invasion of Iraq. It was held by the House of Lords that the Government owned no duty to British troops or their families to conduct a public inquiry into whether or not it had obtained sufficient legal advice on the legality in international law of invading Iraq.
R (Gentle & Anor) v Prime Minister & Ors [2008] UKHL 20
Notices & notes
New State Services Commissioner appointed
Iain Rennie has been appointed to the position of State Services Commissioner. Mr Rennie will take up his appointment on 1 July 2008.
Nuclear disarmament in the 21st Century: making non proliferation work
This lecture organised by the International Law Association and the Law Faculty at the University of Auckland will consider current issues. The speaker is Lisa Tabassi, a Legal Officer in the Provisional Technical Secretariat of the Preparatory Commission for the Compehensive Nuclear-Test-Ban Treaty Organisation (CTBTO) in Vienna, Austria.
Monday 5 May 2008, 6pm sharp, Northey Lecture Theatre, 9 Eden Cres, Auckland.
RAMs annual recruitment evening
The RAMs (Recently Admitted Members) annual recruitment evening sponsored by the legal profession’s leading recruiting agencies will be held on Wednesday, May 14, commencing at 5.30 pm at
Seba bar on Fort Street. Representatives of the sponsoring agencies who will be attending include Law Staff, Hays Legal, Hughes-Castell, Dolman, Mahlab, Momentum, McKenzie Ellis and Legal Personnel. Those recently admitted members who wish to attend are asked to RSVP to Eileen Yee.
Access to court records rules
The Rules Committee is seeking comments on its proposed rules for access to court records in civil proceedings in the High Court and in indictable criminal proceedings in both the High Court and District Court.
Lawyers open their file cabinets for a web resource
Anne Eisenberg writes in the New York Times about services which are appearing on the Web that may make it easier for consumers to do their own preliminary homework on legal issues before seeking professional help.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
Income splitting for families with children
A government discussion document just released seeks people’s views on the idea of allowing families with children to split their income for tax purposes, to reduce the amount of income tax they pay.
New Limited Partnerships register and Overseas Limited Partnerships register
The new Limited Partnerships register and Overseas Limited Partnerships register will go live on 2 May 2008. The registers will be administered by the Companies Office. Registration, maintenance and annual return filing for Limited Partnerships and Overseas Limited Partnerships will be conducted through manual forms. The registers will be able to be searched online.
The Unit Titles Bill set for introduction
A Bill to modernise apartment-ownership and body corporate laws will be introduced to Parliament shortly by Building and Construction Minister Shane Jones. The Unit Titles Act 1972 is archaic and out of touch with modern property development and, the changes proposed in the Unit Titles Bill will bring the legislation into the 21st century.
Feedback invited on stapled stock tax legislation
The government is inviting feedback on draft legislation to amend the tax law on stapled stock instruments that have debt component. Submissions close on 30 May.
Tenancy law changes will protect vulnerable tenants
Proposed changes to tenancy laws which will provide protection to potentially vulnerable tenants, such as those living in boarding houses and in some rented retirement accommodation.The Bill will seek to clarify and provide balance to landlord and tenant rights.
Annette King's speech to the Sensible Sentencing Trust forum
The speech includes reference to a draft Legal Services Amendment Bill to be introduced in May.
Search and surveillance powers modernised
The Government has released cabinet papers on a comprehensive package of reforms relating to the exercise of search and surveillance powers by law enforcement agencies.
Free trade with China: a summary of what's ahead
Bell Gully has produced a guide summarising key elements of the agreement, including tariff reductions, environmental cooperation and changes to labour, investment, immigration and customs policies. It is expected to come into force on 1 October 2008, subject to completion of parliamentary processes.
Recent speeches by Judge Peter Boshier of the Family Court
"Challenges Facing the Family Court", a Public Law Seminar, Wellington, 22 April 2008 and "Is there a yardstick of equality in our backyard?" at the 13th National Family Law Conference, Adelaide , 8 April 2008.
Update on the Financial Advisers Bill
The Select Committee has called for further public submissions on the Financial Advisers Bill before 16 May 2008.
Public feedback called for on Digital Strategy
Communications and Information Technology Minister David Cunliffe is calling for all New Zealanders to have their say on the Draft Digital Strategy 2.0 which has been released for public comment.
Legal Research Foundation AGM and dinner
The Legal Research Foundation invites you to attend its Annual General Meeting on Wednesday 21 May 2008 at 5:30pm, Old Government House. Princes St and to hear Dr John Burrows speak on the topic "40 years as a legal academic - some reflections". This will be followed by dinner at O'Sarracino, 3 Mt Eden Rd, Eden Terrace at 7.00pm for 7.30pm.
Postgraduate week 12-16 May
Meet with the law postgraduate team and members of the faculty to find out about further study in law - Masters of Law, Master of Environmental Legal Studies, PhD
Thursday 15 May 2008, 5-7pm at the Law School, Leval 3, 1-11 Short St, Auckland. For more information contact Francoise Godet, tel. 09 373 7599 ext 82123.
President's breakfast
The President of the Auckland District Law Society invites members to hear from leading regulators and policy influencers of New Zealand. The breakfast sessions are aimed at delivering up to the minute legal and business information to lawyers practising in a range of disciplines.
Dates & speakers:
Wednesday 14 May - Phil O'Reilly, CEO, Business NZ
Wednesday 4 June - Bob Russell, CEO and Commissioner, Inland Revenue.
In the news...
Smith, Nick. "High Court went too far, Warehouse hearing told" The Independent, 30 April 2008
"Court: access to jurors' past OK" New Zealand Herald, 28 April 2008 discusses R v King & Anor [2008] NZCA 79
Taylor, Cliff. "Huge mortgage swindle". New Zealand Herald, 27 April 2008
Internet sites
The Proceedings of the Old Bailey 1674-1913
This site is "A fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published, containing 197,745 criminal trials held at London's central criminal court." It is now complete. "The Proceedings" is the name of the original published version. Here is what it says about these: "The Proceedings contain accounts of trials which took place at the Old Bailey. The first published collection of trials at the Old Bailey dates from 1674, and from 1678 accounts of the trials at each sessions (meeting of the Court) were regularly published. Inexpensive, and targeted initially at a popular audience, the Proceedings were produced shortly after the conclusion of each sessions and were initially a commercial success. But with the growth of newspapers and increasing publication costs the audience narrowed by the nineteenth century to a combination of lawyers and public officials. With few exceptions, this periodical was regularly published each time the sessions met (eight times a year until 1834, and then ten to twelve times a year) for 239 years, when publication came to a sudden halt in April 1913."
The site is beautifully prepared, with the full text available as well as digital images of the original reports. There are also some pictures from legal material of the time together with an extensive Introduction. There is a particular section for schools, with the site obviously seen as material for school projects. The project is a collaboration between the Open University and the Universities of Hertfordshire and Sheffield and is funded by various grants so that access can be free. There is to be a conference in July on the project called "The Metropolis on Trial", to be held at the Open University, Milton Keynes.
(From New on the Legal Internet, maintained by Delia Venables)
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