Whiteboard for 17 April 2008
Recent cases
Agency
Appeal against dismissal by CA of appeal against order for removal of mortgage from register made by HCJ - appellant finance company advanced money to respondent's son RN, on security of mortgage over his parents' home - unbeknownst to appellant, or its solicitor, RN had forged his mother's signature on mortgage document – mother was now, by survivorship, the sole owner of property – whether expressly, or by implication, appellant had utilised RN's services as its agent to procure execution of loan documentation, including mortgage – whether forgery of mother's signature was an act committed within scope of agency
HELD: it was certainly in RN's interests to obtain his parents' signatures so that he could get his hands on loan money – but this did not preclude conclusion RN was also acting on behalf of appellant in obtaining signature on relevant documents – in view of engagement of RN by appellant, through solicitor, to get mortgage signed and then witnessed, it would be artificial and commercially unrealistic to take view there was no relevant element of agency in what RN did – any doubt about solicitor's acceptance of RN's role was removed when documents came back witnessed by a lay person, no objection was taken, the advance was made, and mortgage was presented for registration – at very least, acceptance amounted to a ratification by solicitor of RN's authority to arrange execution of documents – argument that solicitor, himself an agent, had no power to create a sub-agency, had no weight – by instructing an Auckland solicitor, when documents were likely to be signed in Northland, appellant implicitly agreed to appointment of a sub-agent
RN was agent of appellant and scope of agency was to obtain signatures of his parents on documentation with appropriate witnessing – no one suggested appellant actually authorised forgery – question was whether act of forgery was an act sufficiently connected with an authorised act, such that it could be treated as a mode of performing the authorised act and therefore done within the agency – act could have the necessary "close connection" even though it was of a criminal character and was done with fraudulent intent by agent
Further, a fraudulent act impacting on a third party might, vis-à-vis the third party, be seen as done within the scope of an agency even if done exclusively for benefit of the agent, and a fortiori might be seen as an act within the agency if it were done for the benefit of the principal, as well as for the benefit of the agent – as between principal and agent, principal would be entitled to impeach agent’s conduct and say that what agent did was unauthorised, but that did not affect principal’s liability to third party for agent’s acts – liability of principal was not dependent on imputation of knowledge of agent to principal, but arose because agent had done an act, namely the fraud, for which principal was vicariously liable – although forging a signature was exactly what appellant did not want RN to do to fulfil task entrusted to him, an act could be within the scope of an agency even when it was the antithesis of what principal really wanted – true test was whether tortious act had a sufficiently close connection with task so that the commission of tort could be regarded as the materialisation of the risk inherent in that task – forgery was committed in course of RN's agency for appellant – RN’s fraud rendered appellant's registration as mortgagee vulnerable – appellant did not have an indefeasible title to mortgage – appeal dismissed
Dollars and Sense Finance Ltd v Nathan (SC 31-2007, 8 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
What is the impact of globalisation on human rights?
The University of Auckland Amnesty on Campus group in conjunction with the International Law Association (NZ branch) are sponsoring a free seminar.
Thursday 24th April 2008, 6pm - 8pm, Stone Lecture Theatre, School of Law.
Director returns to plan for changes to Law Society
Andrew Burger, former ADLS Professional Standards Director (2002-2006), has returned to the staff of Auckland District Law Society. In 2006 Mr Burger was appointed Director of Regulatory Services for New Zealand Law Society. He returns to Auckland District Law Society as Special Projects Manager to assist in planning and development for the impending changes pursuant to the Lawyers and Conveyancers Act 2006. Mr Burger will be assisting in the development of the business planning for the Representative Division of New Zealand Law Society and the alternative planning for a possible incorporation of Auckland District Law Society.
Family lawyers’ meeting
The society’s Family Law Committee has organised its next lunchtime meeting for Wednesday, April 23, from 1-2 pm in the Norman Shieff Room at Chancery Chambers.
The Lunch n Learn meeting will consider a range of topical issues in family law with at least six practitioners presenting their comments with opportunity for discussion.
Family Lawyers are invited to bring their own lunch. RSVP Sally-Anne Quigley, phone 303 5270 ext 863
IRD: Effectiveness of the Industry Partnership programme
The Auditor General has released a report looking at the Inland Revenue Department's programme that sought to reduce the incidence of undeclared income from cash transactions.
Dame Augusta Wallace dies
New Zealand's first female District Court Judge has died at the age of 78. The Chief Justice Dame Sian Elias paid tribute to Dame Augusta
Wallace.
Bill to establish Walking Access Commission
The Walking Access Bill creates a Walking Access Commission to advise on and implement walking access policies. The Bill replaces the New Zealand Walkways Act 1990.
Bench and Bar dinner
This year's Bench and Bar dinner will be held on Thursday, 1 May. The venue is the Northern Club in Auckland. Dress is formal.
The after dinner speaker is the Hon Justice Mark Cooper.
Profile: Anita Killeen, Serious Fraud Office prosecutor
Anita Killeen, alumna of the Auckland University School of Law, was appointed in November 2007 as the Chief Prosecutor (Acting) of the Serious Fraud Office.
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.
Family Violence Death Review Committee announced
A government has announced that a Family Violence Death Review Committee is to be established, with the aim of reducing family violence and family violence deaths.
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.
Telecommunications market monitoring report
The Commerce Commission has released its 2007 telecommunications monitoring report analysing the state of New Zealand telecommunications markets.
Criminal Conviction and Sentencing Statistics
The conviction and sentencing statistics for the period 1997 - 2006 can now be accessed through the Table Builder function on the Statistics New Zealand web site.
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.
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.
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...
Gibson, Anne. "Parents die before winning court case: Mother and father fought to keep home after son forged signature on mortgage". New Zealand Herald, 15 April 2008, page A3 discusses Dollars & Sense Finance Ltd v Nathan [2008] NZSC 20
"NZ's first female district court judge dies". New Zealand Herald, 15 April 2008, page A5
Internet sites
Law news from Times Online
Sign up to the Times Online legal newsfeed and keep up to date with the latest UK legal news and articles. This RSS feed is a simple and free way to access the legal content of the Times Online, as soon as it becomes available.
Lawfuel.co.nz
Lawfuel advertises itself as New Zealand's only legal jobs board. Besides advertising legal jobs, there is a legal news section, a law firm directory and links to legal blogs.
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