Whiteboard for 10 April 2008
Recent cases
Criminal procedure
Service of a summons on an overseas company – appellant Authority alleged 1st respondent (Heavylift), breached s46 Civil Aviation Act 1990 – offence allegedly occurred when Heavylift, an Australian company, permitted one of its aircraft to land at, and take off from, Auckland International Airport when the company did not hold the requisite foreign air operator’s certificate – investigator employed by Authority laid information against Heavylift and DC issued summons – however, Heavylift had neither a registered office nor a place of business in New Zealand – Authority sought A-G's assistance under s19 Mutual Assistance in Criminal Matters Act 1992 (1992 Act) – s19 provided A-G might request a foreign country to assist in effecting service of any process where A-G was satisfied, for purposes of or in connection with any criminal matter, it was necessary or desirable to serve that process on a person or an authority in the foreign country - A-G made formal request of Australian authorities asking that "a member of the Australian Federal Police be assigned to arrange personal service upon a representative of Heavylift at the company’s registered office" said to be situated at level 2, FAC House in New South Wales – pursuant to request an Australian sworn police officer served summons on Heavylift’s Chief Executive Officer, at level 2, FAC House – however, by time of service, Heavylift’s registered office was no longer at level 2, FAC House
Heavylift sought to have information dismissed on basis proper service had not been effected – DCJ ruled in Authority's favour – however, on application for judicial review, HCJ found that, even assuming there was jurisdiction to serve summons (which was doubted), service had not been effected in accordance with law of Australia relating to service on companies – HCJ maintained it was not sufficient summons might have come to Heavylift's attention; service was defective and summons had to be set aside – whether s19 1992 Act permitted service of a summons overseas – whether there was evidence Australian authorities had agreed to respond to request for assistance on service – whether proper service was effected – whether HC was right to set summons aside
HELD: s19 1992 Act talked of "service of any process" – process was defined in s2(1) 1992 Act as meaning "any summons, warrant, order, or other document issued out of any court..." – an originating summons came within that definition – s19 permitted service of any summons, including an originating summons overseas – certification of material produced in response to a request from a foreign country, under seal of Australian A-G's department was, sufficient evidence of Australia's willingness to respond to NZ's request – information was laid in time – summons was lawfully issued under s19 Summary Proceedings Act, but had not been properly served – HCJ order that summons be set aside was not, in technical terms, the appropriate order – appropriate order was that summons had not been properly served – this was a minor point but it did mean, in formal terms, appeal must be allowed - HC order setting aside summons must itself be set aside – summons must be reinstated, but declaration made summons had not been validly served to date – Authority no longer had original summons but could always apply for a fresh summons in prescribed form – the fact power under s19 Summary Proceedings Act had already been exercised once with respect to this criminal proceeding did not prevent its re-exercise – if a fresh summons was issued, it would be necessary for Authority to approach A-G again to persuade him to make a fresh request to the Australian authorities, this time specifying Heavylift's correct registered office
CAA v Heavylift (CA 131-07, 3 April 2008)
From the Telegraph
Duty of care
The plaintiff developed a severe gambling addiction and lost significant amounts of money. The plaintiff was claiming damages from the respondent bookmaker. The plaintiff set up several telephone betting accounts, including some with the defendant. The plaintiff tried to shut down the telephone accounts with the defendant but the defendant did not carry out his requests and the plaintiff was still able to gamble by telephone. The plaintiff made a further attempt to shut the account and the defendant told them he would be placed on a self-exclusion scheme and would be prevented from opening an account for six months. The defendant failed to carry this out and the plaintiff was able to continue gambling. The issue was whether the defendant owed the plaintiff a duty of care in respect of his gambling losses. It was held that the defendant did not owe the plaintiff a general duty of care.
Calvert v William Hill Credit Ltd [2008] EWHC 454
Matrimonial property
A matrimonial property case where one party had entered the marriage with a large inheritance.
B v B [2008] EWCA Civ 543 and [2008] EWCA CIV 284
Marriage
The appellants son suffered from severe autism and intellectual disabilities. The son was married in a Muslim ceremony which was conducted over the telephone while he was in England and the bride was in Bangladesh. The dual domicile rule was applied. There were public policy reasons not to recognise the marriage. The son did not have the capacity to marry under English law and the marriage would be highly injurious to him. The court had a duty to protect the son from abuse such as this. In discussing s12(c) Matrimonial Causes Act 1973 the court referred to previous decisions in ruling that lack of consent made a marriage voidable rather the void. The son’s marriage was not a valid marriage in the English Courts.
KC & Anr v City of Westminster & Anor [2008] EWCA Civ 198
Notices & notes
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.
Jury Trial Team has moved
A notice has been issued by RJ Neems, Criminal Jury Manager of the Auckland District Court, attentioning practitioners to the fact that the Auckland District Court – Jury Trial Team including Clare Neville (Interpreters) has moved from Level 1 to Level 6 and the current access to the office will be from the Kingston Street entrance. All correspondence regarding jury trial matters will
now have to be made through the office on Level 6. The jury trial fax number remains the same 916 9322 and all direct dial phone numbers remain the same.
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.
Criminal Justice Advisory Board members announced
The new Criminal Justice Advisory Board will advise justice sector ministers on further improvements to the criminal justice system.
Copyright (New Technologies) Amendment Bill passed
Legislation that updates New Zealand's copyright law to ensure that we keep up to speed with recent advances in digital technology has been passed.
Child support shared care provisions under review
The government is looking at ways of improving the child support scheme to make it more responsive to factors such as the complexities of shared care, the income levels of both parents and the costs of raising children.
Recent purchases at the library
Have a look at what the library has purchased this year. There may be texts which could be useful to you.
Select Committee reports on Family Court Matters Bill
The Family Courts Matters Bill amends family law legislation to increase the openness of proceedings, provide for non-judicial mediation, and make other minor process and procedure changes designed to improve the operation of the Family Courts.
Building Amendment Act
The Building Amendment Act 2008 came into force on 15 March 2008. It contains some minor adjustments to improve the workability of the Building Act 2004, and to improve the clarity and effectiveness of the regulatory framework.
Protections for workers strengthened
The Employment Relations (Breaks and Infant Feeding) Amendment Bill amends the Employment Relations Act 2000 to require employers to provide facilities and breaks for employees who wish to breastfeed and to provide employees with rest and meal breaks. .
Auditor-General's reports
The Auditor-General has presented his reports Audit committees in the public sector and Draft annual plan 2008/09 to Parliament.
Radio licences: security of tenure
The government has introduced new measures to strengthen security of tenure arrangements for radio licence holders
Valedictory Sitting
Practitioners are invited to attend the valedictory sitting for The Hon Justice Anderson on his retirement from the Supreme Court.
Auckland High Court, Courtroom No. 1 on Thursday 1 May 2008 at 4:00 pm.
Practitioners are welcome to attend and are invited to wear wigs and gowns.
Privacy Act Workshops 2008
The Privacy Commissioner holds workshops on the Privacy Act in Auckland, Wellington and Christchurch. Participants receive training in the Privacy Act and related legislation along with comprehensive documentation to take back to their workplaces.
AMINZ - Make-a-wish Foundation Charity Golf Tournament
The Arbitrator's and mediator's Institue of New Zealand is holding its second annual charity golf tournament at Titirangi Golf Club at 11am on Tuesday 15 April 2008. They invite you to play in the tournament and to join with them to raise money for this worthwhile charity. The mission of the Make-A-Wish Foundation is to grant wishes to children who are living with a life-threatening illness.
Scholarships for the NZLS Litigation Skills Programme
Each year the New Zealand Bar Association offers a full scholarship each to two recent new members of the independent bar. Applications close 30 June 2008.
Closer Economic Relations – Closer Still and Closer?
The Faculty of Law is proud to announce the first lecture in a series of ‘Heritage Lectures’ marking 125 years of law teaching at the University of Auckland. The first public lecture, Wednesday 23 April 2008, is by Professor Jim Davis who is a living link to the School of Law’s past, being the son of Professor A.G. Davis (Dean 1942 – 1964). The lecture is entitled, ‘Closer Economic Relations — Closer Still and Closer?’
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..."
Stun-gun option too shocking to consider
Wilson, Barry and McIntosh, Ian. "Stun-gun option too shocking to consider". New Zealand Herald, 4 April 2008 page A15
Security guards' boss left with a fight on his hands
Scott-Howman, Andrew. "Security guards' boss left with a fight on his hands". The Independent, 2 April 2008 page 20 discusses Sprod v Public Relations Oriented Security
(2007) Aust Torts Reports 81-921
Internet sites
NZ-China Free Trade Agreement website
This website brings together information from government agencies to help you understand the FTA, what it means for you, and to provide you with tools and resources for doing business in China and in New Zealand. It provides detail on the FTA, including, the text of the document itself, the National Interest Analysis, fact sheets and key outcomes for New Zealand. It also contains links to all New Zealand Government agencies that are connected to doing business in China. A tariff finder tool on the site allows people to view tariff rates on 7000 different items – the current rates and the eventual rates that will result from the FTA.
The Law Society (UK) website updated
All the changes have been made on the basis of feedback from visitors, professional user testing and data about the popularity of pages. The site provides valuable services for members and a single place to find solicitors and get help with legal problems. Part of the improvement is the new Law Society Library Online. It is the result of a collaborative venture between the Law Society and LexisNexis allowing fast, easy access to the library catalogue and value added legal information sources, plus selected free LexisNexis content.
This Whiteboard update was provided by the ADLS Library & Research Centre
See the left menu for links to more Whiteboard updates.
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