Whiteboard for 28 August 2008
Recent cases
LIMITATION OF ACTIONS - appeal against CA decision that claim in negligence against solicitors, who acted for appellant husband in preparing a prenuptial agreement contracting out of the provisions of the Matrimonial Property Act 1976 (the Act), was time-barred – prenuptial agreement was void under s21(8)(a) of the Act because, on execution of agreement, wife did not receive independent legal advice and no certification that the legal effect of the agreement had been explained to her was completed, as was required by s21(5) and s21(6) of the Act – negligent advice was given to appellant in March 1990 – claim in negligence was not brought until July 2002 – s4 Limitation Act 1950 prevented a claim in negligence being brought more than 6 years from the date on which the cause of action "accrued"
HELD: cause of action in tort for negligence did not exist, and hence time did not start running for purposes of Limitation Act, unless and until plaintiff had suffered some actual and quantifiable loss, harm, or damage, as a result of breach of duty involved – damage would be contingent, and hence not actual for limitation purposes, if plaintiff would suffer no damage at all unless and until a contingency was fulfilled – that would be so if damage resulted from plaintiff being exposed to a liability which was contingent on occurrence of a future uncertain event – a reduction in value of asset, whether tangible or intangible, constituted actual damage and existed as soon as asset became less valuable
Appellant relied on respondent law firm to obtain a legally enforceable prenuptial agreement, which would ensure wife had no claim on house as matrimonial property – instead appellant got a less valuable asset; an agreement that was not legally enforceable – appellant thereby suffered an immediate loss, even though the extent of resultant damage would not become apparent until some time later – this was, therefore, a damaged asset case, not one of exposure to a contingent liability – the asset in question was a prenuptial agreement under which plaintiff was supposed to obtain full protection against claims by his future wife for a share in matrimonial home – asset which appellant acquired was, as a result of combined negligence of solicitors and appellant, defective in that it did not give appellant the protection he sought to obtain – product which appellant instructed his solicitors to procure for him, was created with an inherent flaw – flaw represented actual damage or harm which was suffered by plaintiff from moment defective prenuptial agreement came into existence
Damage was quantifiable at that stage, either on straightforward basis of what it would have cost plaintiff to obtain or attempt to obtain a valid agreement, or on more difficult basis of difference in value between a defective agreement and one which was not defective – valuation exercise would not have been easy, but was conceptually possible - exercise involved an assessment of likelihood of marriage failing and likelihood, in that event, of Court validating agreement – that type of contingency was not of the same kind as a contingency which resulted in plaintiff not suffering any loss at all until contingency was fulfilled – there was a material difference between contingencies relevant to existence of damage and contingencies relevant to valuation of damage – limitation period commenced to run when wife signed agreement in March 1990 – appellant's claim in negligence was therefore statute barred when he filed proceedings against respondent in July 2002 – appeal dismissed
Thom v Davys Burton [2008] NZSC 65
CRIMINAL LAW - appellant appealed his conviction on charges of manufacturing methamphetamine, offering to supply methamphetamine, and conspiring to supply methamphetamine – appellant was one of 10 people charged jointly and separately with a range of drug offences in a trial before a jury which lasted about 20 weeks in early 2007 – appeal on basis that trial Judge erred materially, firstly in his summing up on one count; and secondly, in directing trial to proceed with 10 jurors at the beginning of its 7th week – whether there were exceptional circumstances "relating to the trial" which were sufficient to justify continuing with 10 jurors, rather than starting again before another jury – Supreme Court decisions of R v Rajamani [2008] 1 NZLR 723 and R v Wong [2008] NZSC 29, examined – Crimes Act 1961, 374
HELD: Judge's error, in what was an otherwise impeccable and unchallenged summing up, came to nothing – mistake did not lead to miscarriage of justice – threshold of exceptional circumstances justifying trial continuing with 10 jurors was satisfied if they were "in combination.... distinctly out of the ordinary" (R v Wong) – whilst cases of R v Rajamani and R v Wong provided guidance on approach to be adopted, they illustrated that the question was one of fact and degree, which was why the conclusion of the trial Judge, reached with the benefit of the knowledge of the trial, must be accorded appropriate weight – HCJ identified two exceptional circumstances
Firstly the trial of 10 people was in its 7th week, out of an estimated duration of 12 weeks – jury had already heard 4 weeks of evidence – the parties, their counsel and the jurors had already invested a significant amount of time and effort; and that investment ought not to be wasted if possible – long, multi-accused trials (of 4 weeks or more) were not uncommon, in the sense that there were at least 10 a year in the HC at Auckland – but they certainly did not represent the norm in a registry where trial numbers had increased annually from 117 to 30 June 2006, to 144 to 30 June 2008 – a long trial was thus, of itself, distinctly out of the ordinary – it was likely legislature had in mind this type of case when identifying without limitation "the length or expected length of the trial" as a specific factor to be taken into account when determining exceptional circumstances – it was noted that the prospect of completing a long multi-accused trial with the original complement of 12 jurors was becoming increasingly problematic – there was a real possibility, if the bar of exceptional circumstances was set too high, that Judges, conscious of the prospect of numbers falling to 10, would be driven to retain a juror notwithstanding disability or incapacity
Secondly, HCJ identified as an exceptional circumstance the likelihood that a retrial would not commence before late 2007, at the very earliest – with the benefit of hindsight, and with knowledge that trial lasted for 5 sitting months, the Registry could in fact not have accommodated a re-trial until well into 2008 – delay was not merely an administrative question, but had implications for the availability of judicial resources, the interests of the Crown and the accused, and the rights of access to justice of others
2 factors identified by HCJ, separately and together, were of an exceptional nature, which in the interests of justice, were sufficient to justify proceeding with 10 jurors – appeal dismissed
R v Harris [2008] NZCA 298
Notices & notes
Digital Strategy 2.0 launched
Digital Strategy 2.0 focuses on how we can maximise the potential of digital technologies to increase productivity, improve environmental sustainability, and build social inclusiveness. This is reflected in the Strategy's new focus on outcomes. The Strategy includes a number of actions that will help achieve these outcomes. New projects such as Connected New Zealand and the Digital Content Innovation Cluster are being introduced, and initiatives such as the adoption of videoconferencing by government agencies, the Aotearoa People's Network and the Community Partnership Fund are being expanded.
Brit-NZ get-together
The British-New Zealand Trade Council (BNZTC) is interested in arranging a "get together" to include New Zealand lawyers who have a degree from a
university in the United Kingdom or have practised law or worked in commerce in Britain.Practitioners interested in attending such a function are asked to email David Catty or Clive Neifeld.
Walking Access Bill
A Bill securing public access to New Zealand’s outdoors has been reported back by the Local Government and Environment Committee. The Walking Access Bill creates a Walking Access Commission to advise on and implement walking access policies. The Bill also replaces the New Zealand Walkways Act 1990.
Stapled stock changes added to bill
The government has introduced legislative changes to treat certain stapled stock instruments as equity for tax purposes, to prevent a loss to the revenue through their use. The changes have been added to the Taxation (International Taxation, Life Insurance, and Remedial Matters) Bill by means of a Supplementary Order Paper.
Privacy and community: personal space within the public sphere
Marie Shroff, Privacy Commissioner was the keynote speaker at the Privacy Issues Forum 2008 held on 27 August in Wellington.
How does the Justice system treat victims of Domestic Violence
Speech of the Principal Family Court Judge Peter Boshier on Napier, 21 August 2008
Workplace safety for small businesses
An online tool to help small business improve workplace safety and save on ACC costs has been launched.
Updated UK DTA in force
The updated double tax agreement between the United Kingdom and New Zealand has come into force. The update of the 1983 agreement is intended to strengthen co-operation between the two jurisdictions in the enforcement and collection of tax.
Applications for broadband fund open
Applications are now open for the government’s Broadband Investment Fund (BIF) of $340 million to accelerate broadband. It is a key part of the Government’s Digital Strategy 2.0 package of over $500 million.
Protecting Children from Family Violence
A speech by Judge Rosemary Riddell given at the International Conference on Child Labour and Child Exploitation in Cairns, Australia 3-5 August 2008.
Introduction to Dispute Resolution
This Arbitrators' & Mediators' Institute of New Zealand (AMINZ) programme is intended for people who have some qualifications, or experience that is relevant to the practice of Dispute Resolution and who would like to enhance their knowledge and to enter the AMINZ pathway to credentialing. The programme will cover the syllabus requirements for Associate membership of AMINZ, which focus on advice on and participation in ADR processes.
New chair of the Copyright Tribunal
Professor Susy Frankel has been appointed Chair of the Copyright Tribunal for a term of one year.
Court statistics 2008
The Courts of NewZealand website now supplies caseload statistics for the Supreme Court, Court of Appeal and High Court.
Imputation discussion document released
A government discussion document seeks views on whether the law should allow limited streaming of imputation credits to those who can use them and refunds of credits for charities and other tax-exempt entities. The closing date for submissions is 10 October.
Securities Commission Update
Speech by Chairnmn of the Securities Commission, Jane Diplock, on Thursday 21 August 2008.
The Waitakere and Manukau Family Violence Courts: An evaluation summary
This report summarises major findings from recent evaluative work focusing on the court processes of the Manukau and Waitakere Family Violence Courts.
Guantanamo Bay: Legal Black Hole
Former United States Supreme Court Justice, Sandra Day O'Connor delivered a lecture on Guantanamo Bay at the Victoria Law School on 23 July. The lecture was attended by over 400 people. View a video of the lecture.
Minter Ellison looks at the employment related changes in the latest tax bill
The Taxation (International Taxation, Life Insurance, and Remedial Matters) Bill (the Bill) had its first reading in Parliament on 6 August 2008. The Bill proposes a number of important, employment-related changes, including in relation to KiwiSaver.
Govt wants feedback on regulation of franchising
The government has released a discussion document inviting those in the franchise sector to comment on whether franchising in New Zealand needs its own regulatory framework or whether the current voluntary regime offers sufficient protections.
Bell Gully's Sports Law Update
A review of current legal issues in the sporting arena, featuring Ambush marketing and the Olympics – lessons for New Zealand, Behavioural issues – impact on sponsorships and more.
Road User Charges Review Group named
Transport Minister Annette King has confirmed the members of an independent group to review Road User Charges.
Deed of Settlement with Taranaki Whanui
The Port Nicholson Block Claims Team have signed a Deed of Settlement with the Crown settling all the historical Treaty claims of Taranaki Whānui at a ceremony at Wellington’s Pipitea Marae.
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
"Drug dealer's sentence cut due to tragedy" The New Zealand Herald, Thursday August 28, 2008 discusses Jarden v R (SC 14/2008, 28 August 2008)
."No Warehouse court appeal for Foodstuffs" The New Zealand Herald, Wednesday August 27, 2008.
"Court upholds quashing of student's expulsion" The New Zealand Herald, Wednesday August 27, 2008
Edward Gay, Edward. "Judge restricts online reporting of case" The New Zealand Herald, Monday August 25, 2008
Koubaridis, Andrew "Bloodshed fears over weapons in courts" The New Zealand Herald, Friday August 22, 2008
"Carter Holt worker awarded $40,000 for unjust sacking" The New Zealand Herald, Wednesday August 20, 2008
Internet sites
New look IPONZ website
Improvements to the site make it easier to navigate, search for information and perform transactions online. Over the next six months the site will progressively add new online services. The office would like to receive your feedback on the changes.
Human Rights from the National Archives
This site covers 800 years of human rights in the UK explored using original documents from The National Archives. There is a list of all documents related to Human Rights since the Magna carta and the site provides both pictures of the documents and transcriptions or translations. There is a description of the events of each time period and also a glossary of the terms used (e.g. Demesne, Enclosure, Interregnum etc).