Whiteboard for 20 November 2008
Recent cases
IMMIGRATION - appeal by Minister of Immigration against decision of HC in which it upheld 1st respondent's application for judicial review of a decision of the Deportation Review Tribunal (DRT) – DRT had upheld a decision by the Minister to revoke 1st respondent's residence permit – HCJ found DRT had erred in law in dismissing 1st respondent's appeal against revocation of his residence permit – HCJ quashed the decision of DRT and remitted matter to a differently constituted DRT for reconsideration
1st respondent was a Saudi-Arabian born citizen of Jordan, married to a Kuwaiti born citizen of Canada, who had been granted New Zealand citizenship – appellant had 2 children born in New Zealand, both with New Zealand citizenship – respondent did not disclose in his application for New Zealand residency that he had been charged with certain criminal offences in the United States, including drug offending, and that he had been deported from the United States – respondent was charged, in New Zealand, with dealing with documents (his application for residency) with intent to defraud – respondent entered guilty plea and was convicted and discharged – in Oct 2004, the Minister of Immigration issued a notice revoking respondent's residence permit – revocation was based on s20(1)(b) and s20A(1)(b) Immigration Act 1987 (the Act), which empowered the Minister to revoke permits procured by false or misleading representation, or concealment of relevant information – the Minister relied on respondent's failure to declare events relating to the United States offences – respondent chose to appeal on humanitarian grounds under s22 of the Act – DRT dismissed his appeal – whether DRT failed to correctly apply relevant provisions of s22; s22(4): "subject to subsection (5) of this section, on any appeal under this section, the Tribunal may confirm or quash the revocation of the residence permit, as it thinks fit", and s22(5): "the Tribunal shall not confirm the revocation of a residence permit under this section if it is satisfied that it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely"
HELD: there was no mandatory order for consideration of separate discretions under s22(4) and s22(5) and DRT was free to deal with them in any order it considered to be appropriate – but they were two different tasks and each must be addressed properly, unless the decision on the first one to be considered, rendered consideration of the other unnecessary – in both cases criteria set out in s22(6) must be evaluated, and whilst that did not necessitate the repetition of the DRT’s views on each one at length, it did require proper evaluation of those factors in relation to each decision – in this case the DRT undertook a full evaluation of the s22(6) criteria in relation to the s22(5) determination, but it was not clear from its decision that it also properly evaluated those factors when it came to s22(4) - there was no burden on a s22 appellant, but an appellant had a responsibility to place before the DRT material which, if accepted, would allow the DRT to exercise its power under s22 of the Act to quash the revocation – DRT did not correctly apply tests set out in s22 – appeal dismissed, except that HC direction that remission of matter to DRT must be dealt with by a differently constituted Tribunal was quashed – cross-appeal allowed in part – decision of HC not to award costs in that Court was quashed and replaced by an order that appellant pay costs on a 2B basis and reasonable disbursements – appellants must also pay 1st respondent's costs for a standard appeal
Minister of Immigration v Deeb & Deportation Review Tribunal (CA 244-07, 4 November 2008)
EMPLOYMENT LAW - appeal against costs decision directing costs should lie where they fell – appellant was a senior physician employed by respondent District Health Board – in Feb 2005 Board was alerted to existence of inappropriate material held on appellant's workplace computer – when confronted with issue appellant acknowledged wrongful nature of his conduct and promised he would not repeat this behaviour – appellant was nevertheless dismissed from employment in April 2005 – appellant was reinstated on an interim basis by order of ERA – appellant's application for permanent reinstatement and associated remedies was removed to EC – ECJ found appellant's dismissal was unjustified, both procedurally and substantively, and made an order for permanent reinstatement – however, ECJ declined to grant any remedy by way of compensation under s123(1)(c) Employment Relations Act 2000 (the Act), declined to make an order for permanent suppression of appellant's name and formally reserved the issue of costs - ECJ latterly dismissed appellant's claim for costs and directed costs should lie where they fell
Whether ECJ erred in addressing the issue of costs as a remedy, rather than as a discrete issue – whether ECJ wrongly took into account contributory behaviour by appellant both in declining remedies under s123 Employment Relations Act 2000 (the Act) and in determining issue of costs – in substantive proceedings, under a heading in his judgment "Contributory Conduct", ECJ concluded that, in terms of s124 of the Act, appellant's misconduct had contributed substantially to circumstances that gave rise to dismissal – ECJ was critical of appellant's conduct describing it variously as "adolescent and frankly stupid", "abhorrent", and "bizarre" and found such conduct required a substantial reduction in remedies, to which appellant might otherwise have been entitled – ECJ also took into account appellant's "contributory conduct" in decision not to award appellant costs
HELD: ECJ had fallen into error by failing to deal separately with discrete issues of remedies and costs – remedies were dealt with in s123 to s128 of the Act – Court's power to order costs was separately provided for in clause19 Schedule 3 of the Act – s124 made it mandatory for ERA and EC to consider issue of employee's contributing behaviour, in relation to nature and extent of remedies to be provided, where a personal grievance was established – s124 was explicit in limiting consideration of an employee's contributing behaviour to issue of whether remedies should be reduced by reason of that behaviour – the general law had long recognised the distinction between remedies and costs – in this case it was apparent ECJ endeavoured to fashion a package of remedies; permanent reinstatement, no monetary compensation, publication of appellant's name, and no order for costs – in so doing ECJ took into account appellant's contributory conduct both in relation to remedies and costs – statutory scheme confined issue of contributory behaviour, in terms of s124, to the issue of remedies under s123 – it was open to Judge to decline to award compensation to appellant by reason of his contributory behaviour, in relation to circumstances of his dismissal, but it was not permissible for him to refuse appellant costs by reason of the very same behaviour – it was not suggested appellant's conduct of litigation was at issue, which might have been taken into account in reducing, or refusing, appellant costs - ECJ was in error in failing to deal separately with discrete issue of remedies and costs – whether Judge might have reached the same conclusion on costs, by applying the usual costs principles, was not clear – appeal allowed - issue of costs remitted to EC for reconsideration.
White v Auckland District Health Board (CA 103-2008, 30 October 2008)
From the Times
JUDGES' BIAS - The petitioner (Helow) was a Palestinian refugee with links to the PLO. She helped Belgian lawyers prepare a lawsuit against Ariel Sharon for his alleged involvement in the massacre at the Sabra and Shatila refugee camps. She sought asylum in the United Kingdom. Asylum was refused by the Secretary of State for the Home Department (this decision was upheld by the adjudicator). The Immigration Appeal Tribunal refused the petitioner's leave to appeal and she sought statutory review of that decision under s101 Nationality, Immigration and Asylum Act 2002. The review was to be heard by Lady Cosgrove who was a member of the International Association of Jewish Lawyers and Jurists. This organisation sent all members a magazine titled "Justice" which was described as by Lord Hope as "fervently pro-Israeli" and the magazine criticized the case against Sharon. Lady Cosgrove would have received the magazine. The issue was "whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there existed a real possibility that the judge was biased, by reason in this case of her membership of the Association".
Helow v Secretary of State for the Home Department & Anor [2008] UKHL 62.
Notices & notes
Retirement of Mike Taggart
Members of the profession are warmly invited to a cocktail party to mark the retirement of Professor Mike Taggart to be held in the Main Lounge at Old Government House, Corner Waterloo Quadrant and Princes St, Auckland. Tuesday 25 November 2008 5pm to 7pm.
RSVP by 20 November 2008 to Law reception (09) 373 7599 ext 85971.
Courts Holiday Dates 2008
The dates on which individual Courts reopen after the statutory holidays.
Re-appointments to the Human Rights Review Tribunal Panel
Eamon Daly, Deborah Clapshaw, Patsi Davies and Simativa Perese have been re-appointed as members of the Human Rights Review Tribunal Panel.
Indonesian lawyer lecture
Indonesian human rights lawyer Afridal Darmi has been invited by the Indonesia Human Rights Committee (NZ) to give a lecture on Wednesday, November 26, 7.30 pm at the Supper Room Trades Hall, 147 Great North Rd, Grey Lynn. Mr Darmi is the Aceh Director of the Indonesia Legal Aid Foundation and is a graduate of Syah Kuala University, Banda Aceh, and Northwestern University School of Law, Chicago. He is regarded as an expert on post-conflict reintegration and community peace-building. Mr Darmi has played a leading role in major peace projects involving local government and local and international NGOs and has served as team leader on a Truth and Reconciliation Commission. For further information contact - Maire Leadbeater
Law Foundation grants
The Law Foundation has approved three more significant grants in recent weeks.
A fresh slant on the regulatory regime - the global picture
A speech by Jane Diplock AO, Chairman, Executive Committee IOSCO & New Zealand Securities Commission to the Association of Superannuation Funds of Australia (ASFA) 2008 Conference in Auckland.
Legal Aid Grants Manual rewrite
The Legal Services Agency (LSA) is to rewrite part of its Grants Manual and to consult the Law Society, among others, in the process.
Privacy Act training 2009
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. The 2009 schedule is out now.
Early registration for Next Generation Networks conference
Early registration for the Commerce Commission’s Next Generation Networks conference is recommended as attendance at the conference, which will be held at the Langham Hotel in Auckland on 26 and 27 February 2009, will be free and places are limited. The conference, entitled Broadband at the Crossroads: Convergence, NGN and the future, is an opportunity to take part in the dialogue about what the future marketplace will look like, the upcoming opportunities and potential constraints that the market will need to address for the benefits of NGN to be realised.
CLANZ 22nd Annual Conference
Stepping up your pathway to success, 7-8 May 2009 at the Christchurch Convention Centre
"Rethinking Supervised Contact"
A speech of the Principal Family Court Judge Peter Boshier to Aotearoa New Zealand Association of Supervised Contact Services in Wellington on 3 November 2008.
Revolutionise the way you work - SPRIG (Small Practice Representation and Interest Group) forum
Software for the small practice Looking for an affordable desktop solution that provides all you need in one single application?
This session hears from two software providers, ActionStep and WorkFlowMax, and two ADLS practitioners who use the packages on a day to day basis to manage their offices, from time recording through to billing. 27 November 2008, 5:30pm onwards, Chancery Chambers Cost: $50 plus GST. Register
New Standing Orders available
The Standing Orders of the House of Representatives were amended before the House was dissolved for the General Election.
Post-Tsunami Mediation in Aceh and Sri Lanka
Naomi Johnstone who is a final year LLB (Hons) and BA student at Otago University took a break from studies this year to undertake unpaid internships with UNORC (a United Nations Agency) in Aceh and with an international NGO in Sri Lanka. In this Naomi describes the use of mediation in resolving post-Tsunami disputes.
The Role of Experts in Construction Disputes
Society of Construction Law Inc Presents: The Role of Experts in Construction Disputes. The Hon Justice Heath will be speaking on the role of experts in construction disputes.
Auckland 26 November 2008.
AMINZ Mediation Forum - Auckland
Wednesday 26th November 2008 9:30am to 3:00pm
The Forum format will provide you with discussion and advice on current topics relating to your everyday practice. The interactive forum will provide people working in the area of mediation with an opportunity to deal with difficult issues they encounter.
Brookers McGechan on Procedure seminar
The Judicature (High Court Rules) Amendment Act 2008 was assented on 25 September 2008 and comes into force on 1 February 2009. The Act introduces some substantive changes to the High Court Rules such as freezing orders and search orders. E-filing will come into force at a later date by order in council.
Wellington 26 November 2008 5.30 - 8.30pm and Auckland 3 December 2008 5.30 - 8.30pm.
RAMs Christmas drinks
Recently Admitted Members Christmas drinks are to be held on Thursday 4 December 2008, at Seba Bar, Fort Street from 5:30pm.
There is not charge.
Please RSVP to Eileen Yee.
In the news
"Glad to be nation's most-sued person". The New Zealand Herald , 20 November 2008, page A4
"Widow seeks body's return". The New Zealand Herald, 19 November 2008, page A6
"Cop's brother fights order". The New Zealand Herald, 19 November 2008, page A8
"Judge throws out rape charges". The New Zealand Herald, 20 November 2008, page A6
"$23,000 for worker whose boss said he'd get nothing". The New Zealand Herald, 20 November 2008, page A8, discusses Kirk v Burgess t/a Frank's Gardening & Landscaping (ERA, Wellington, WA153/08)
"Man who refused drug test loses appeal over sacking". The New Zealand Herald, 20 November 2008, page A8, discusses Parker v Silver Fern Farms Ltd (ERA, Wellington, WA148/08)
Regulation summary
Fisheries (Remaining Cost Recovery Settlement Balance) Notice 2008 (SR 2008/432)
In force 14 November 2008
Health Practitioners (Quality Assurance Activity—Joint Faculty of Intensive Care Medicine) Notice 2008 (SR 2008/431)
In force 14 November 2008
Fisheries (Kaipara Harbour Temporary Closure) Notice 2008 (SR 2008/430)
In force 28 November 2008. Expires 17 November 2009.
Internet sites
Patents Online
The Intellectual Property Office of New Zealand (IPONZ) has introduced a new online service, Patents Online. This service enables clients to apply for a patent online via the IPONZ website and is one of many enhancements to the online services that are being introduced in the next few months. This online service is a simple, fast, and effective way to apply for a patent - no more filling in paper forms and dealing with couriers or fax machines. This can simply be done remotely and electronically in the comfort of your office, and at anytime that suits you.