Whiteboard for 24 July 2008
Recent cases
COSTS IN CRIMINAL CASES - appeal against quantum of costs awarded pursuant to Costs in Criminal Cases Act 1967 (the Act) – in Aug 2005 Travelex had $390,000 stolen in a burglary of its Wellington Airport premises – burglar(s) used a key and security codes to open external and internal doors and to open safe – suspicion fell on appellant, an employee of Travelex, when a closed circuit television tape recording showed appellant, and another employee, apparently turning off recorder 12 hours before burglary, and when police discovered some of the security codes used by burglar(s) were appellant’s – appellant was charged with burglary – at trial, Judge discharged appellant, pursuant to s347 Crimes Act 1961, at conclusion of Crown’s case – post acquittal, appellant sought costs pursuant to Act and was awarded $8,072.80 – on appeal appellant challenged quantum of award - appellant had hired a private detective, whose investigations revealed that, if whole tape was viewed, it was clear video recorder had not been turned off by appellant, as alleged by police – this information was provided to Crown at least 4 weeks prior to trial – prosecution accepted private detective was correct – however, Crown elected to proceed to trial – at trial, it became clear security codes were not secure and were available to other staff members – key used by burglar(s) to gain access to premises also appeared to have been one that was lost some time before, by another staff member
HELD: Judge should have taken account, in assessing quantum, that through appellant’s independent efforts, she undermined a fundamental plank of Crown case – Judge’s focus on reimbursing appellant for private investigator costs was too narrow an approach – defence had effectively provided a rational explanation for prosecution case – proper police investigation would have revealed there was not sufficient evidence to charge appellant – given that conclusion, a costs award was justified beyond reimbursing private investigator’s costs and legal fees relating to security tape investigation – s5(1) of the Act allowed an award of a sum the Court considered “just and reasonable”, subject to any Regulations made under the Act – Regulations were promulgated in 1987 and provided for a scale of costs (last fixed in 1988) – Act and Regulations were intended to comprehensively define circumstances for which costs might be ordered in criminal cases, and their quantum – Regulations were intended to apply to all trials on indictment, as far as costs were concerned, irrespective of Court in which they were tried – there was no rational basis to distinguish between trials on indictment in HC and in DC – Parliament clearly intended scale costs should only be exceeded if grounds identified in s13(3) could be met (having regard to special difficulty, complexity, or importance of case, the payment of greater costs was desirable) – such grounds existed in this case – case involved a very substantial burglary of commercial premises – a large amount of money was stolen – significant planning had obviously gone into crime – investigation had some complexity, involving an analysis of security footage, multiple security codes, and the use of a key to enter premises – investigation understandably focused on those previously or presently employed by Travelex – all staff denied involvement in crime and so investigation was inevitably going to require skilled detective work – in combination these factors justified an award of costs above scale – however, indemnity costs were not justified – some relativity to scale must be kept – sum of $20,000, in addition to costs already awarded by Judge, properly met ends of justice – this was slightly less than 30% of appellant’s actual costs – appeal allowed – quantum of costs increased by payment of further sum of $20,000 to appellant.
R v Afato [2008] NZCA 208
FAMILY LAW - appeal against HC judgment dismissing appellant’s application to discharge an order to return a child to Tenerife, in the Canary Islands – return order was made following contested proceedings under those provisions of the Care of Children Act 2004 (the Act), which adopted Hague Convention on the Civil Aspects of Child Abduction (the Convention) as part of New Zealand’s domestic law: Part 2, sub-part 4 of the Act – whether there was jurisdiction for HC to discharge return order - given there were no statutory provisions empowering a Court to discharge a return order, application had been made under the inherent jurisdiction of HC – HCJ held that he lacked jurisdiction to make order sought, but indicated, if jurisdiction existed, he would have granted application – JUDGMENT OF THE COURT: appeal dismissed
REASONS OF THE COURT: whilst there was nothing in the Act, or in the Convention itself, that provided a procedure to discharge a return order, s119 of the Act conferred a discretion on a FC to issue a warrant to authorise a specified person to uplift the child, so that he or she might be returned in accordance with the order: s119(1) and s119(2) - FCJ could decline to make an enforcement order if a material change in circumstances had occurred since order was made – change would need to be of such significance that enforcement of order would be pointless – an example of the type of exceptional circumstance in which a Court might decline to enforce a return order would be the death of the parent at whose investigation the order was sought – inherent jurisdiction of HC could only be exercised in circumstances that fell within its proper scope, and when it did not conflict with legislative provisions – the Act incorporated an international Convention as part of New Zealand domestic law, and conferred originating jurisdiction on a FC or a DC – in those circumstances, to allow HC to exercise its inherent jurisdiction, would be contrary to Parliament’s clear intention to restrict originating jurisdiction to those Courts – further, the Act was a code (s13) – the rational for suggestion that HC should exercise its inherent jurisdiction lay in its supervisory role over inferior Courts – however, HC’s inherent jurisdiction was not available to assist a FC, when the latter was given express jurisdiction by a statute to exercise originating jurisdiction over all Convention issues - no adjectival jurisdiction was required – HCJ was right to hold HC did not have jurisdiction to make order sought – it was of concern that, in exceptional cases involving material changes of circumstance, no jurisdiction to discharge a return order existed – however, any lacuna in legislation could only be cured by Parliament – Parliament was urged to consider urgently whether to enact legislation, akin to that contained in reg19A of the Australian regulations, which provided for discharge of a return order – although HCJ had expressed view that, had he had jurisdiction to discharge return order, he would have exercised it, it was not considered the facts of the case came close to the type of exceptional situation in which, even if jurisdiction were to exist, it could properly be exercised to prevent return (such as death of the parent at whose instigation order was sought) – refusal to enforce return order could not be justified in this case and the Central Authority should take prompt steps to enforce it.
B v C [2008] NZCA 198
From the Telegraph
CONFIDENTIALITY - The defendant was a former solider whom, upon joining the UK Special Forces, had signed a confidentiality agreement providing that the defendant would not disclose information and material relating to the Special Forces without express written authority from the Ministry. Since the defendant had been discharged he had made public statements about his service and had never asked for permission to do so. The issue in the case was whether the defendant was allowed to exercise his own judgment in deciding what information was covered by his duty of confidence. The court held in the claimants favour. It was held that under the contract the Ministry of Defence had a right to make judgments about any proposed disclosure. The defendant was under a contractual obligation to apply for prior authority.
Ministry of Defence v Griffin [2008] EWHC 1542
SEXUAL ABUSE - This case involved alleged sexual abuse by the appellant child against his younger sister.
R (A Child) v Devon CC [2008] EWCA Civ 817
Notices & notes
Online training at the ADLS Library & Research Centre
Learn how to research in Laws of New Zealand, Halsbury's Laws of Australia and UK, and in All ER with Sarah-may Vaealiki from LexisNexis.
Wednesday 6th August at 1pm at the ADLS Library, High Court Building, Parliament St, Auckland.
Refreshments will be provided. Please RSVP to Janice Woolford.
Annual Reprints Survey
The Parliamentary Counsel Office is currently consulting on its annual reprints programme for 2008-2009. Let them know what you think should be reprinted over the forthcoming year.
The survey response form can be completed online at or by downloading the pdf and mailing or faxing it back to us.
Lawyers and Conveyancers Act rules and regulations
The following rules and regulations are now available:
- LCA (Conveyancers: Registration and Practice) Regulations 2008 (SR 2008/189)
- LCA (Conveyancing Practitioners: Complaints Service and Standards Committee) Regulations 2008 (SR 2008/187)
- LCA (Conveyancing Practitioners: Fidelity Fund) Regulations 2008 (SR 2008/191)
- LCA (Disciplinary Tribunal) Regulations 2008 (SR 2008/184)
- LCA (Lawyers: Admission) Rules 2008 (SR 2008/195)
- LCA (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (SR 2008/186)
- LCA (Lawyers: Fidelity Fund) Regulations 2008 (SR 2008/190)
- LCA (Lawyers: Practice Rules) Regulations 2008 (SR 2008/188)
- LCA (Lawyers: Senior Counsel and Queen's Counsel) Regulations 2008 (SR 2008/194)
- LCA (Legal Complaints Review Officer) Form and Fee Regulations 2008 (SR 2008/185)
- LCA (Trust Account) Regulations 2008 (SR 2008/183)
Prof Duncan Webb NZ's First Legal Complaints Officer
Canterbury University law professor Duncan Webb has been appointed the country's first Legal Complaints Review Officer.
Fisheries legislation introduced
A bill to address concerns raised by the High Court has been introduced into Parliament. The amendment is needed so that new catch limits can be set before the start of a new fishing year on 1 October.
Bills introduced to Parliament
Fisheries Act 1996 Amendment Bill (No 2)
Patents Bill
Reserves and Other Lands Disposal Bill
David McNaughton appointed District Court Judge
David John McNaughton, Solicitor of Auckland, has been appointed a District Court Judge.
Criminal Procedure (Simplification) Project Testing in Manukau and Tauranga District Courts
The Criminal Procedure (Simplification) Project is designed to review, and implement improvements to criminal procedure in the summary and indictable jurisdictions. It is a joint project between the Ministry of Justice and the Law Commission.
Tribunal Reform programme
The Government's consultation paper "Tribunals in New Zealand: the Government's Preferred Approach to Reform" has been issued..
Law’s curb on totalitarianism
Professor Martin Krygier, here as the NZ Law Foundation Distinguished Visiting Fellow for 2008, will speak on "Misconceiving the rule of law: Why those who have it find it hard to understand and those who need it find it hard to get". Thursday 7 August, 6.15pm, Stone Lecture Theatre, School of Law, 9 Eden Crescent, Auckland.
China Free Trade Agreement Bill passed
The New Zealand-China Free Trade Agreement Bill will bring the FTA into force on 1 October.
Anti-Money Laundering and Countering the Financing of Terrorism update
Associate Minister of Justice, Hon Clayton Cosgrove, has directed Ministry of Justice officials to continue Anti-Money laundering/Counter Terrorist Financing policy development on a time line that now targets introduction of the legislation in April 2009.
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.
New Essential Skills work policy for overseas workers
A new temporary work policy for overseas workers to protect lower-skilled local workers and encourage the recruitment of high-skilled overseas workers is being introduced. The new Essential Skills policy will replace the current General work policy from 28 July 2008, and will see applications for work permits in lower-skilled and higher-skilled occupations treated differently.
Easier online access to govt agencies
New Zealanders will gain personalised online access to a wider range of government services, following a new whole-of-government direction.From now on, Crown agents will be required to sign up to the Government Logon Service and Identification Verification Service (“igovt”) when they introduce new on-line services. Up until now, only Public Service Departments have been required to participate in the igovt services.
New Zealand Transport Agency board announced
The New Zealand Transport Agency will come in to being when Land Transport New Zealand and Transit New Zealand are disestablished on 1 August.
Proposed National Policy Statement for Freshwater Management
The Government has announced a proposed National Policy Statement for Freshwater Management. A Board of Inquiry has been appointed to publicly notify and undertake a formal consultation process on the proposal.
Closing date for submission of historical claims to the Waitangi Tribunal
In December 2006, the Treaty of Waitangi Amendment Act set a deadline of 1 September 2008 for the submission of all new historical claims to the Waitangi Tribunal. The Tribunal will not be able to register or inquire into any new historical claims submitted after that date.
Report finds local government legislation is sound
The Local Government Commission Summary report on the Local Government Act 2002 and the Local Electoral Act 2001 has been released.
Immigration Bill reported back
The Immigration Bill reported back by the Transport and Industrial Relations Committee will replace the outdated, inflexible Immigration Act 1987.
New regulations to help get P cases moving
Regulations, made under the Criminal Procedure Act, which came in effect on Friday 18 July mean that Class A drug cases, including methamphetamine cases, can now be heard in the District Court, instead of always being sent to the High Court.
Reducing company tax return complexity
A consultation paper on company tax return has been issued. The proposals include rationalising various end-of-year tax forms into a single form, a more tailored reporting approach for companies, and a move to compulsory electronic filing of company income tax returns.
Public Defence Service will employ permanent staff
Justice Minister Annette King has authorised the Legal Services Agency (LSA) to employ permanent salaried staff to provide the Public Defence Service (PDS) legal services piloted in Manukau and Auckland courts since May 2004.
Buddle Findlay litigation newsletter
The Buddle Findlay July 2008 litigation newsletter (insolvency edition) on current issues.
Child, Youth and Family service charter and complaints process
Child, Youth and Family has a new service charter and enhanced complaints process.
Early days for flexible working
Polly Botsford looks at the UK experience and asks whether a decent work-life balance is possible in the legal profession.
Arbitrators' and Mediators' Institute of NZ Conference
1-3 August 2008 - Montana Brancott Winery, Blenheim, Marlborough, New Zealand.
Justice Goddard to give Ethel Benjamin address
Dunedin Art Gallery at 12.30pm for a 1pm start on Thursday 14 August.
New Zealand Governance Centre Inaugural Conference
Friday, 15 August and Saturday, 16 August 2008
The Legal Research Foundation is offering its support to this inaugural conference hosted by the New Zealand Governance Centre.The New Zealand Governance Centre has been established as an interdisciplinary Centre that will undertake and promote research in governance including corporate governance, the governance of small and medium sized enterprises, and not for profits, Maori governance, and leadership.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
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.
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.
IBA conference 2008
Buenos Aries 12-17 October
Early bird registrations close on 25 July 2008.
21st LawAsia Conference 2008
29 Oct - 1 Nov 2008, Kuala Lumpur Convention Centre
Judges, lawyers, academics and others interested in legal issues affecting the Asia Pacific region are invited to attend LAWASIA’s premier conference.
In the news
"Employment breaks bill set to become law". New Zealand Herald, 22 July 2008, page A6
Pierce, Andrew and Gammell, Caroline. "Max Mosley orgy ruling will allow 'adultery without fear of exposure'". The Telegraph, 24 July 2008 discusses Mosley v News Group Newspapers Ltd [2008] EWHC 1777
Bennett, Adam. "Investigators swoop on Hanover". New Zealand Herald, 25 July 2008, page A1
Gower, Patrick. "P cases shunted to District Court". New Zealand Herald, 21 July 2008
Bishop, John "The Pecking Order" (analyses the Lawyers Survey of top law firms) National Business Review, 25 June 2008
Internet sites
New Alerts service for the Parliament website
Alerts helps you keep up-to-date with new content on the Parliamentary website. It delivers a daily or weekly email telling you about new content that matches your choice of keyword, subject and/or document type. For example you could choose to receive an Alert for all the questions for written answer that include the word "school" , or that are directed to the Ministry of Social Development, or anything published on a particular bill. An RSS feed will be available soon.
Improving our law: news and views from the New Zealand Law Commission July 2008 Newsletter 3