Whiteboard for 14 August 2008
Recent cases
EMPLOYMENT LAW - appeal on question of law against ECJ decision upholding respondent’s personal grievance under s103(1)(c) Employment Relations Act 2000, alleging discrimination on the ground of age contrary to s104(1)(a) and s104(1)(b) of the Act – case concerned "Rule of 60' under which commercial pilots could not operate as pilots-in-command (PICs) on many international flights, once they reached 60 years old – Rule was adopted internationally by the International Civil Aviation Organisation (ICAO) and by many individual jurisdictions, although not New Zealand – appellant developed an employment policy for its international pilots which reflected rule – appellant said respondent, a senior pilot, could not continue to be a Boeing 747-400 (B747) flight instructor once he turned 60, because he could not act as a PIC, on sufficient international flights, to maintain his flight instructor position – whether EC erred in law in concluding demotion of respondent from his 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s104(1) Employment Relations Act 2000 (ERA) – identification of comparator group for purposes of s104(1)(a) and s104(1)(b), examined
HELD (inter alia): s104(1)(a) and s104(1)(b) required a comparison to be made between treatment of aggrieved employee and that of other comparably situated employees, in order to determine whether aggrieved employee had been treated differently – in present case ECJ said that, for purposes of s104(1)(a), respondent received different and disadvantageous terms of work and conditions of employment from colleagues – ECJ found detriment, for purpose of s104(1)(b), was respondent's inability to continue to act as a flight instructor and his demotion to first officer with its lesser rate of pay – to reach a true comparison concerning whether appellant had discriminated against respondent in terms of s104(1)(b), it was necessary to place comparator in same circumstances as aggrieved person, except for allegedly discriminatory factor
In this case there were two suggested reasons for detriment suffered by respondent; age (the prohibited ground of discrimination) and flight restrictions that prevented pilots from acting as PICs in certain jurisdictions – existence of flight restrictions (although not on account of age) must be reflected in comparative analysis, through the identification of comparator group – it was not strained to attribute to comparator group an inability to fly in US airspace, for reasons other than age – if a pilot were unable to obtain a valid visa, or did something which disentitled him or her from entering the US, he or she would not be able to fly into the US, although technically qualified to do so – if appellant treated such a pilot in the same way as it treated respondent it could not be said, for purposes of s104(1)(b), respondent had been treated differently on account of his age – the same analysis applied under s104(1)(a) – comparator group was defined differently (those with "the same or substantially similar qualifications, experience and skills employed in the same or substantially similar circumstances") – but whether through concept of "qualifications" or through concept of being employed "in the same or substantially similar circumstances", analysis must take account of fact pilots might be unable to fly into the US for reasons other than age – ECJ did not approach s104(1)(a) this way - ECJ treated restrictions on respondent's ability to fly into US as a PIC as resulting from a prohibited discriminatory act of appellant – this was clearly wrong – restrictions resulted from ICAO rule – Judge erred in her identification of relevant comparator group – appeal allowed – matter remitted to EC so respondent's disadvantage grievance could be resolved in light of judgment
Air New Zealand Ltd v McAlister [2008] NZCA 264
From the Telegraph
WRONGFUL INTERFERENCE - A case involving wrongful interference with goods and the sale of cotton. It was held that in a claim in conversion for wrongful interference with goods a failure to mitigate the loss is to be classified as a new intervening cause which breaks the link between the original wrongful act and the continuing loss. This released the wrongdoer from any subsequent loss. “The person whose goods have been wrongfully interfered with must do what he reasonably can to keep the loss to a minimum”.
Uzinterimpex JSC v Standard Bank Plc [2009] EWCA Civ 819
NEGLIGENCE - In this case the claimant sued his financial planners in negligence after he acted on their advice to move his pension scheme form a safe scheme to a high risk scheme. Subsequently the value of his investment declined. The claimant’s right to sue commenced upon the transfer and was not reliant on the occurrence of loss.
Shore v Sedgwick Financial Services Ltd & Anor [2008] EWCA Civ 863
Notices & notes
"Negative licensing" of insolvency practitioners
The Cabinet has decided to introduce a new negative licensing system for the insolvency profession as the final step in the review of the personal and corporate insolvency laws.
Tapuika and Ngati Rangiwewehi sign Joint Terms of Negotiation with the Crown
Tapuika and Ngati Rangiwewehi have signed Joint Terms of Negotiation with the Crown which set out the scope and the nature of their upcoming negotiations to settle their historic Treaty of Waitangi claims.
Enhancements to IPONZ online services
IPONZ is refreshing their online services. "You will find managing your Intellectual Property assets is getting a lot faster, simpler and more effective. Over the next six months you will see a number of improvements." To begin with, they are releasing a new look website and updating much of the content it contains on 19 August 2008.
Privacy is your Business
This Privacy Awareness Week forum is to be held in Wellington: 27 August 2008, 8.30am-5.00pm at the Intercontinental , Grey Street, Welington.
Launch of the eco-labels directory
This directory has been developed to improve the availability of information about ecolabels and other sustainability indicators relevant to consumers, suppliers and other organisations. It provides summary information about each label, and users are encouraged to access further detail from ecolabel owners' websites using the links provided.
Sexual Violence discussion document released
The government has issued a discussion document, "Improvements to Sexual Violence Legislation in New Zealand", aimed at seeking public views on law changes to improve the criminal justice response to sexual offending.
Proposal for a definition of restricted building work
This discussion document proposes what the government considers should be defined as restricted building work. This document also proposes that certain work should not be restricted building work. This consultation will run until Thursday 11 September.
Govt supports Commissioner of Financial Advisers plan
The government is backing the establishment of a Commissioner of Financial Advisers who will be a member of the Securities Commission, as suggested in a second interim report issued by the Select Committee considering two Bills to regulate financial advisors and institutions.
Court of Appeal confirms decision to control Powerco’s and Vector’s gas pipeline services
The Court of Appeal has dismissed a challenge by Powerco Limited to the Commerce Commission’s 2004 recommendation to control gas pipeline services supplied by Powerco Limited and Vector Limited. Powerco Ltd v Commerce Commission (CA 56-2008, 11 August 2008)
Inquiry into the West Coast Development Trust
The Auditor-General's report titled Inquiry into the West Coast Development Trust has been presented to Parliament.
Resource Management Negotiation Training
Monday, 25 August 2008 at the Mount Richmond Hotel & Conference Centre, Vineyard Room, 676 Mt Wellington Hwy, Mt Wellington, Auckland.
This course is designed for people who need to build agreements over resource management issues such as: siting of facilities, conservation, access to land, building disputes, managing waterways, changing land use activities.
'Young' Resource Management Lawyers Assoc Event : The Great (or not so great) OE
Tuesday, 26 August 2008 at Minter Ellison Rudd Watts, Level 20, Lumley Centre, 88 Shortland Street, Auckland. An evening for young practitioners from all disciplines which addresses matters such as what is happening in the resource management field overseas, the benefits of overseas experience to working in New Zealand, careers paths and opportunities and pitfalls for young practitioners (the good, the bad and the ugly).
RAMs Boardroom Bash
Bell Gully invites Recently Admitted members (RAMs) to a Boardroom Bash on Wednesday 27 August 2008 at Vero centre, 48 Shortland St, Auckland for drinks and refreshments from 5:30pm to 8:00pm. Please RSVP to Eileen Yee.
Legal education in flux
A public lecture by Sir Kenneth Keith entitled "1883 to 2008: Law and legal education: Then and now" will be given at The University of Auckland Law School on Wednesday 27 August 2008. 6pm Stone Lecture Theatre, School of Law, 9 Eden Crescent, Auckland.
Twenty years on from the Cartwright Report
Key figures involved in the cervical cancer inquiry will speak at a forthcoming conference marking the twentieth anniversary of the Cartwright Report. The one-day conference, "Twenty years after the Cartwright Report: What have we learned?", will be hosted by the Faculty of Law at The University of Auckland and held at the Hyatt Regency on 29 August.
Bar dinner 2008
The Society is holding a bar dinner in honour of new appointments to the Judiciary.
The Honourable Justice Wylie
His Honour Judge Maude
His Honour Judge Paul
Friday 29 August 2008 at the Ellerslie Covention Centre, Greenlane. 7:00pm for 7:45pm dinner.
St Thomas More dinner
The annual St Thomas More Dinner is to be held at the Northern Club, Princes St, Auckland on Wednesday 10 September 2008.
The speaker is Patrick McClure, currently a director of Macquarie Bank Australia and previously the chief executive of Mission Australia, formerly Sydney City Mission. A booking form may be obtained from Bernard Smith.
Human Rights at the frontier
The Legal Research Foundation is hosting a 1 day conference "Human Rights at the Frontier: New Zealand's immigration legislation - an international law perspective".
Friday 12th September 2008, 8:30am - 5:00pm at the Hyatt Regency Hotel, Waterloo Quadrant, Auckland.
RAMs Ball
The 2008 Hays Legal RAMs annual ball is to be held on Saturday September 20 at St Matthews church in central Auckland. Tickets are $67.50 per person including GST and partners are welcome to attend. RSVP with payment to Eileen Yee at ADLS, PO Box 58, Shortland Street, Auckland.
Australia and New Zealand Sports Law Association conference
The ANZSLA 2008 Conference 'Sport:A political football' will be held at the Melbourne Cricket Ground (MCG) between October 15th -17th.
In the news
Collins, Simon. "Specialist family violence courts fail". The New Zealand Herald, 13 August 2008, page A3
Gower, Patrick. "Law societies square up over merger". The New Zealand Herald, 14 August 2008, page A4
"Metal sliver in pie costs bakery $11,000 fine". The New Zealand Herald, 13 August 2008, page A8
"Soccer: former Knight awarded big compensation package" The New Zealand Herald, 13 August 2008
Internet sites
The NZ Transport Agency
The NZ Transport Agency (NZTA) is a Crown entity established on 1 August 2008, bringing together the functions of Land Transport New Zealand and Transit New Zealand to provide an integrated approach to transport planning, funding and delivery.
Skype 3.8.0.144
International long-distance phone bills can be rather costly, and those who haven't given the Skype application a try may wish to do so now. This latest version allows users to conduct conference calls with as many as nine people and it also includes a browser plug-in that turns phone numbers on web pages into links that Skype can automatically dial. This version of Skype is compatible with computers running Windows 2000 and XP. (From The Scout Report, Copyright Internet Scout Project 1994-2008)
Law Commission papers
Review of Prerogative Writs (NZLC IP 9, Wellington, 2008)
This issues paper raises questions and options for discussion and comment. It proposes no changes in relation to matters of substantive law but is concerned only with procedure and technical issues. The aim is to make things simpler. The Law Commission is interested to hear the views of practitioners in the administrative law area. (Published 11 Aug 2008)