Whiteboard for 23 October 2008

Recent cases
From the Times
Notices & notes
In the news
Regulation summary
Law Commission papers

Recent cases

SENTENCE - application by S-G for leave to appeal against sentence of 12 months' intensive supervision imposed following respondent's conviction on charge of wounding former wife with intent to injure her – respondent and former wife (the complainant) had been involved in an acrimonious relationship property dispute – complainant lived in former family home, a farm property – on 3 Nov 2006, respondent went to property to check on horses – at this time, a protection order in favour of complainant remained extant, which meant respondent could only go to property when visits had been arranged – general arrangement was that respondent could only go to property if he were accompanied by a police officer and his current partner was not present – respondent unsuccessfully attempted to make arrangements to go to property with a police officer and decided to go to property in company of his partner - complainant returned home to find them on the property – a verbal altercation followed which escalated to violence – it was plain from photographic evidence complainant received injuries to her head and face, including a gash on her left cheek area which required 6 stitches

HELD: Judge erred, in principle, by imposing a community-based sentence for an offence that required a sentence designed to meet the sentencing purposes at which imprisonment was aimed - domestic violence was a serious social problem in New Zealand and Courts must respond firmly to such offending, in a manner which promoted the sentencing goals of accountability, deterrence, and denunciation and ensured a consistency of treatment among those convicted of similar offences – in this case Band 1 of R v Taueki applied (starting point in range of 3 to 5 years imprisonment) – if Court were sentencing based on Taueki, it would be open to impose a sentence of 2 years imprisonment – home detention was a hybrid sentence, regarded as neither custodial nor community based – in a case like this, sentencing Judge was required to form a judgment on whether imprisonment was necessary or home detention could respond adequately to the seriousness of the offending – there were good reasons why home detention would have been an appropriate sentencing option – whilst assault was serious, there was information before Judge identifying a personality disorder and other personal circumstances which meant that a sentence of home detention, with appropriate special conditions to meet respondent's particular circumstances, was likely to meet relevant sentencing goals – had CA been sentencing at first instance, sentence of 12 months home detention, with appropriate special conditions to respond to respondent's particular rehabilitative needs, would have been imposed – however, in this case a wholly community-based sentence should be ordered – sentence of intensive supervision could not be combined with a sentence of home detention – yet there was evidence respondent was responding well to intensive supervision to which he had been subjected – there was good reason to believe respondent's violent tendencies would be arrested through programmes he was undertaking – approach in R v Nathan endorsed; given that respondent was making progress in breaking his pattern of recidivist behaviour, it was inappropriate to substitute a custodial or home detention sentence, for community based sentence imposed – decision was made solely on basis of approach to S-G appeals and was not to be taken as endorsing the imposition of community-based sentences in these circumstances – in any event sentence of 1 year's intensive supervision was manifestly inadequate and could not respond to offending – application for leave to appeal, granted – appeal allowed – sentence quashed - 250 hours community work and 2 years intensive supervision substituted.
R v D (CA 253-2008, 14 October 2008)

From the Times

CRIMINAL LAW - Confiscation - The applicants had been convicted of drugs crimes involving considerable quantities and values of drugs. The English Courts had made confiscation orders against the applicant’s property. It was held by the European Court of Human rights that there had been no violation of article 6 of the European Convention on Human Rights (right to a fair trial) nor article 1 of the first protocol of the Convention (protecting property). The Court ruled "that it was not incompatible with the notion of a fair hearing in criminal proceedings to place the onus on each applicant to give a credible account of his current financial situation. In each case, having been proved to have been involved in extensive and lucrative drug dealing over a period of years, it was not unreasonable to expect the applicants to explain what had happened to all the money shown by the prosecution to have been in their possession, any more than it was unreasonable at the first stage of the procedure to expect them to show the legitimacy of the source of such money or assets. Such matters fell within the applicants' particular knowledge and the burden on each of them would not have been difficult to meet if their accounts of their financial affairs had been true."
Grayson v United Kingdom ; Barnham v United Kingdom [2008] ECHR 877

OBLIGATIONS - This was a case on unqualified obligations and valuer's. A mortgagee instructed a valuer to value a property on which it was going to lend money. However, the valuer valued the wrong property after the borrower led him to inspect the incorrect property in the same street. The borrower defaulted on his payments. There was a mortgagee sale and a shortfall of ₤30,000 was left. It was held by the Court of Appeal that the valuer's instructions were "couched in clear and unqualified terms" and "by accepting instructions to inspect and value … they undertook an unqualified obligation to inspect that property and were in breach of contract in failing to do so".
Platform Funding Ltd v Bank of Scotland [2008] EWCA Civ 930

JUDICIAL REVIEW - This is the case involving the Gurkha veterans who had applied for entry clearance to come to the UK to settle because of their past military service. They had been declined entry clearance. The court described the Government’s entry policy in relation to Gurkha veterans as irrational. The decisions were to be set aside and to be re-determined once the Home Office had responded to this judgment.
Limbu v Secretary of State for the Home Department [2008] EWHC 2261 (Admin)

Notices & notes

Changes to 'serious harm' definition
The government is changing the definition of 'serious harm' under the Health and Safety in Employment Act 1992. The new definition aims to make the law clearer, so it will be easier for employers to understand their obligations to report worker injuries.

E-dealing guidelines
The Property Law Section of the New Zealand Law Society has revised its guidelines to incorprorate legislative developments and ensure consistency with LINX S20002.

2008 NZLS Legal Challenge
This annual 5 km road race is run as part of the Push Play Corporate Challenge held in November. The Auckland race, held in the Domain, will be run on Wednesday evening 19 November with a start time of 6.30pm.

New Zealand Pegasus Scholarship Programme 2009
The Pegasus Scholarship Trust offers the opportunity for two New Zealand litigation practitioners, who have been in practice for not more than five years, as at the 1st February 2009, to work in barristers’ chambers in London for a period of 6 weeks. Applications close 14 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.

Annual Report 2007/08
The Auditor-General's Annual Report 2007/08 has been published.

Review of the CER Rules of Origin
The Ministry of Economic Development and the Ministry of Foreign Affairs and Trade invites submissions on the upcoming review of the Rules of Origin (ROO) under the Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA), known as CER.

New co-president of Māori Law Society
Bell Gully senior associate Damian Stone (Ngāti Kahungunu) has been elected as co-president of Te Hunga Roia Māori o Aotearoa (the Māori Law Society).

Draft regulations for the Renewables Preference
Draft Renewable Preference Regulations 2008 for consultation.

Walking Access Commission members announced
The Commission established under the Walking Access Act 2008 will provide leadership on walking access issues, develop a national strategy, undertake mapping of walking access, provide information to the public, develop a code of responsible conduct, assist with dispute resolution, and negotiate new walking access. Members of the New Zealand Walking Access Board are: John Acland (Chair, Geraldine), John Aspinall (Wanaka), Brian Stephenson (Auckland), Peter Brown (Gisborne), Dr Kay Booth (Christchurch), Maggie Bayfield (Ohope), John Forbes (Opotiki) and Barbara Stuart (Nelson).

Restoration of old High Court more costly than expected
The cost of restoring the historic 19th century High Court building in Stout St, Wellington, has proved to be greater than initially expected.

International arbitration: getting pricier, but still growing
Kate Durcan from The Gazette, asks those at the frontier of international arbitration if claims for costs are creating an expensive adversarial process more akin to litigation.

All national parks now protected from mining
All national parks will now be protected from mining. The changes come into effect in November.

Competition Study of Audio-Visual Broadcasting Markets
The Ministers of Broadcasting and Communications and Information Technology have released the Terms of Reference for a study that will review issues around access to premium content and access for broadcasters to networks and platforms.

New rules simplify company directors disclosure
Directors and officers of listed companies will have simplified and reduced disclosure requirements under amended Securities Market regulations. The Securities Markets (Disclosure of Relevant Interests by Directors and Officers) Amendment Regulations 2008 come into effect on 9 October 2008.

Improvements to redundancy rights planned
Options for a statutory minimum for redundancy compensation and notice will go out for public consultation next year.

Auditor-General's report released
The Auditor-General has published his report "Ministry of Health: Monitoring the progress of the Primary Health Care Strategy".

New GM regulations give greater assurances
New regulations for the conditional release of genetically-modified organisms will provide greater assurance for industry and the public in regard to traceability and segregation.

Road User Charges Review Group submissions
The Government has established the Road User Charges Review Group to complete an independent review of the road user charges system. The Review Group invites you to make a written submission for consideration in developing a report, which is due at the end of March 2009.

Regulations being developed for international carbon credits
The government is developing regulations to specify the carbon credits known as assigned amount units that will be accepted for compliance with the emissions trading scheme.

Double tax agreement with Philippines updated
New Zealand's double tax agreement with the Philippines has been updated, with effect from 1 December.

Feedback sought on draft electricity regulations
The recently enacted Electricity (Renewable Preference) Amendment Act states that no power station above 10 MW in capacity and using more than 20 percent fossil fuel may be built and operated without an exemption granted by the Minister of Energy. Any exemption granted under this Act must meet criteria prescribed in regulations. A discussion paper outlining the criteria has been released and feedback is sought.

Take the Lead and Shape Your Future - Repeat Seminar
The Bar Council is delighted to report that as a result of the demand and the huge success of its July seminar for junior/intermediate litigators this seminar will be repeated on:
Wednesday, 29 October 2008, 1:30pm at the offices of Simpson Grierson.
Confirmed speakers include Justice Raynor Asher; Judge Fred McElrea; Alan Galbraith QC; Julian Miles QC; Jim Farmer QC and Deborah Hollings QC.

Keeping culture free
In this public lecture, Professor Lawrence Lessig reviews the struggle the "copyright wars" have produced, and maps a future for culture that achieves the ideals the law and industry should seek. Monday 3 November 2008 6:30pm - 8pm, University of Auckland Business School.

2008 New Zealand Insurance Law Conference
The NZILA conference will be held in Wellington over 6 - 7 November at the National Library. The theme this year will be "From the Ashes"..

In the news

Scott-Howman, Andrew. "The high cost of health and safety". The Independent, 16 October 2008, page 27 discusses Department of Labour v Streetsmart Ltd (HC, Hamilton, CRI-2008-419-000026, 8 August 2008, Duffy J)

Koubaridis, Andrew. "Now you can call us Senior Counsel". New Zealand Herald, 20 October 2008

"ERA backs surgeon over job". New Zealand Herald, 16 October 2008, page A10 discusses Breeze v Bay of Plenty District Health Board (ERA, Auckland, AA261A/08, 6 October 2008)

Regulation summary

Law Commission papers

Compensating Crime Victims - NZLC IP 11
The paper raises questions and options for discussion and comment. The closing date for submissions is 24 December 2008.

Review of the Land Transfer Act 1952 - NZLC IP 10
This issues paper raises questions and options for discussion and comment. The Commission welcomes any comments or submissions on the Issues Paper. The closing date for submissions is 19 December 2008. Submissions should be directed to Janet November, Senior Legal and Policy Adviser or Julia Rendell, Legal and Policy Adviser of the Law Commission, Law Commission, PO Box 2590, Wellington 6140, or by email.

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