Whiteboard for 25 September 2008
Recent cases
CIVIL PROCEDURE - appeals in relation to strike-out proceedings in HC that concerned scope and application of immunity and leave provisions contained in s6 Mental Health Amendment Act 1935 (MHAA 1935) and s124 Mental Health Act 1969 (MHA 1969) – claim related to alleged historic abuse of former patients of Porirua and Lake Alice psychiatric hospitals in late 1960s and early 1970s – claimants advanced various causes of action including assault, battery, breach of fiduciary duty, breach of statutory duty and negligence – particulars of claims varied in each case but included allegations of physical assault, sexual abuse, inappropriate use of electro-convulsive therapy (ECT), and solitary confinement as punishment – both general and exemplary damages were claimed
As at 31 March 2008 281 similar proceedings had been filed in HC - Crown Health Financing Agency (CHFA) applied to strike-out proceedings in HC, claiming it was protected by statutory immunity under s124 MHA and s6 MHAA for any of the alleged acts that were performed "in pursuance or intended pursuance" of the legislation in force at time of alleged abuse - CHFA also argued claims should be struck out because proceedings were barred without leave of Court, which could not be sought more than 6 months after the alleged abuse
HELD (by unanimous decision): the leave and immunity provisions in MHA 1969 and MHAA 1935 were not repealed by the Mental Health Act 1992 - in addition to committed patients, all informal / voluntary patients were within the leave and immunity provisions, which also applied to proceedings that alleged CHFA was vicariously liable – the leave and immunity provisions covered more than acts or omissions in the committal process or acts or omissions expressly authorised by the legislation – in deciding whether or not leave was required, the actions, any accompanying words, the circumstances in which they allegedly occurred and any motivation ascribed must be examined - an act would be in pursuance of the legislation if it related to the committal process, the running of a psychiatric institution, or the care, treatment, control and protection of patients – act that amounted to an offence under the legislation could not be "in pursuance" of it – an act could be in "intended pursuance" of the legislation if a person could honestly, even if mistakenly, have believed that the acts or omissions related to the committal process, to the running of the institution, to the care and treatment of patients, or to necessary auxiliaries, such as control and protection of those both inside and outside of the institution - (by majority): in relation to procedure, if a defendant considered, in relation to any relevant proceedings, that leave should have been applied for, then he or she should apply to either have the question of leave dealt with as a preliminary issue and/or to strike out the proceedings – (by unanimous decision): should leave be required, and any leave application would have been timeous when proceedings were filed, then such proceedings should not be struck out – proceedings should instead by stayed until a leave application was filed and dealt with – if needed special leave should be granted on question of test to be applied for deciding if a leave application was necessary – case remitted to HC to be resolved in accordance with judgment.
Crown Health Financing Agency v P and B & Ors (CA 172-07, 16 September 2008)
From the Times
PROCEEDS OF CRIME - The appellants had been convicted of money laundering. It was held that there "are two ways in which the Crown can prove the property derives from crime, a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime."
R v Anwoir & Ors [2008] EWCA Crim 1354
SENTENCE - a sentencing case of a person for possessing a false passport.
R v Buriticia-Castrillon & Anor [2008] EWCA Crim 1972
Notices & notes
Are you smarter than Bernard Brown?
The Legal research Foundation invites you to ask yourself "Are you smarter than Bernard Brown?" - an evening of wine and fine food, music and quizzing to determine whom among the profession are more learned both in law and in life.
Wednesday 22 October, 2008. 7:00pm at The Northern Club, Wintergarden, Princes St, Auckland.
Walking Access Bill now law
This bill establishes the New Zealand Walking Access Commission to lead and co-ordinate the provision of public access to the outdoors especially around the coast, lakes, and along rivers.
Securities Markets Global Perspectives
A speech by Jane Diplock AO, Chairman, Executive Committee IOSCO & New Zealand Securities Commission at the CNMV 20th Anniversary (1988 - 2008) International Conference on Securities Markets Perspectives. Supervision and Regulation.
Reform of Securities Act 1978
Work is now underway to reform the 1978 Securities Act. Found here are details of the scope and areas for policy review.
RAMs Cocktail Challenge Extravaganza
ADLS invites Recently Admitted Members to a Cocktail Challenge Extravaganza hosted by Chapman tripp on Thursday 23 October 2008.
Refreshments from 5.30pm until 7.30pm.
at Level 35 ANZ Tower, 23 Albert Street, Auckland CBD
Please RSVP no later than Friday 17 October 2008 to Eileen Yee
Policies arising from New Zealand-China Free Trade Agreement
On 1 October 2008, the New Zealand-China Free Trade Agreement (FTA) will enter into force. Several immigration policies were agreed to as part of the negotiations.
First (Interim) Progress Report on the New Zealand Energy Strategy (NZES)
This is the first (and interim) progress report on the Strategy and the New Zealand Energy Efficiency and Conservation Strategy (NZEECS) covering the first eight months of implementation from October 2007 to 30 June 2008.
Financial adviser rules pass into law
Financial advisers will be subject to tighter rules of professional conduct and competence and will be supervised by the Securities Commission under a Bill just passed by Parliament. DLA Phillips Fox's Funds Management Update discusses the implications.
US Free Trade Agreement negotiations
The United States is to enter into comprehensive Free Trade Agreement (FTA) negotiations to become a full partner to the Trans-Pacific Partnership.
Commissioning rule to be repealed and parody satire review announced
An amendment to the Copyright Act that would repeal the commissioning rule has been introduced and a review on whether there should be a copyright exception for the purpose of parody and satire has begun.
Australia to collect New Zealand tax debt
Arrangements are now in place to allow New Zealand and Australia to help each other collect tax debts.
Next phase of broadcasting review announced
The Regulatory Review of Digital Broadcasting looks at whether the current regulatory regime for broadcasting and related sectors needs changing given the increasing convergence between broadcasting, telecommunications and the internet. The Cabinet paper summarising the results of a public consultation has been released, and the next phase of work has also been announced.
UN recognises NZ's extended seabed rights
New Zealand’s rights over approximately 1.7 million square kilometres of seabed have been confirmed by a special United Nations Commission.
Law change paves way for lower remittance costs
Cabinet’s has approved of a new regulation under the Financial Transactions Reporting Act to reduce the high costs of sending money between New Zealand and the Pacific.
"New Pathways in the Family Court"
Speech by the Principal Family Court Judge Peter Boshier discussing the recently passed Family Court Matters Bill and how the Bill changes the Family Court, both in openness, and in methods of doing its work.
Financial Law Update September 2008
Kensington Swan's regular update on the latest developments in financial services law.
Australian Lawyers Alliance Conference
2008 National Conference, 16 - 18 October 2008, The Langham Hotel, Auckland, New Zealand.
Topics include: Indigenour rights, Ethical dilemmas for lawyers, Dangers of forensic contamination and Human rights charters.
When to shred: Purging data saves money, cuts legal risk
Mary Brandel 's article in Computerworld looks at the risk in keeping data that you wouldn't otherwise be required to produce, but as long as it's discoverable, could be used as evidence against you.
AMINZ Auckland Breakfast Seminar
The speaker is Chris LaHatte on "Life on the Steppes – and how not to litigate there" Tuesday 14 October 2008, The Northern Club. 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.
Losing the forest for the trees: reductionism of the environment in law and policy"
Professor Klaus Bosselmann lectures on international environmental law. Tuesday 21 October 2008, 6:45pm - 8:45pm at the Faculty of Engineering, Symonds St, Auckland.
Construction Adjudication Symposium - Construction Contracts Act 2002
Tuesday 21 October 2008 9.30am to 3.00pm
Venue: The Northern Club, 19 Princes Street, Auckland
This seminar is presented by the Arbitrators’ and Mediators’ Institute of New Zealand Inc. as part of the Institute’s continuing professional development programme. This one-day seminar will cover topics relevant to adjudicators, lawyers and ADR students.
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".
"Defence appeal rejected in bridge collapse case" The New Zealand Herald, 25 September 2008 discusses New Zealand Defence Force v Berryman (CA 340/07, 25 September 2008)
"Court hands $560m lab contract back to Labtests" The New Zealand Herald, 25 September 2008 discusses Lab Tests Auckland Ltd v Auckland District Health Board & Ors (CA 154/07, 25 September 2008). A Bell Gully update looks at the case to date and in particular the Court of Appeal decision.
Herman, Michael. "Enron lawyers in record $688m payday". The Times Online, 10 September 2008
Internet sites
IBA pro bono website
The International Bar Association pro bono website has been created by the International Bar Association "to bring together the global community of professionals of every level who are involved in pro bono legal work on a local and on an international scale." It is a very comprehensive site with resources (for example, papers from conferences), articles written especially for the web site, information on events, discussion groups and various useful sets of links to other legal bodies worldwide. (From New on the Legal Internet, maintained by Delia Venables)