Whiteboard for 5 June 2008
Recent cases
Employment law
Appeal to Court of Appeal (CA) from Employment Court (EC) on question of law - whether, in determining remedies under s124 Employment Relations Act 2000 (the Act), EC was permitted to take into account information which employer did not know about at the date of dismissal – appellant had been found to have been unjustifiably dismissed as Commissioner for Pitcairn Island – EC held that if certain emails had came to light before dismissal, the dismissal would have been justified – EC reduced appellant's award by 50% for contributing behaviour – development of law under s124 of the Act ("remedy reduced if contributing behaviour by employee"), considered – meaning of "the situation that gave rise to the unjustifiable dismissal" in s124 examined - relevance of subsequently discovered misconduct, discussed
HELD: (per Hammond J) in determining remedies under s124 of the Act, EC was permitted to take into account information which employer did not know about at date of dismissal – this proposition was subject to qualifications that subsequently acquired evidence relied upon for a deduction must be reasonably connected to reason(s) given for dismissal and that evidence must be proved to the satisfaction of Court – both of these conditions were satisfied in this case
HELD (per Chambers and Robertson JJ): words the "situation that gave rise to the personal grievance" meant, in this context, "the situation that gave rise to the unjustifiable dismissal" – as a matter of logic, only actions of the employee, about which the employer knew, could have contributed towards the employer’s wrongful decision to dismiss – there must be a "causal link between employee’s conduct and the situation which gave rise to the dismissal" (Paykel Ltd v Ahlfeld [1993] 1 ERNZ 334) – it was clear s124 was intended to operate in a similar way to a "contributory negligence" provision: if employee, by his behaviour, was partly the cause of employer’s hasty or ill-judged action (here, in dismissing employee), the then employee should have remedies to which he or she would otherwise have been entitled reduced – this meant Employment Relations Authority and EC were wrong to reduce appellant’s entitlements by 50% under s124 – this was because, in reaching that figure, they took the emails into account – the sending of the emails in no way affected, the employer’s decision to dismiss, as he was not aware of them – ECJ was entitled to take into account appellant’s "entirely negative attitude", which had been amply demonstrated prior to his dismissal and was entitled to make some reduction on account of that – however, subsequently discovered misconduct of a truly significant nature could be taken into account when determining remedies under s123 itself – subsequently discovered information could not be taken into account under s124, but could and should have been taken into account when determining wages, reimbursement and humiliation compensation under s123 – had matter been approached in this manner, appellant would have received a less compensation than he did – since there had been no cross-appeal by employer, the fairest course was to let matters stand
RESULT: appeal dismissed
Salt v Fell (Governor for Pitcairn, Henderson, Ducie and Oeno Islands) (CA 128-2008, 22 May 2008)
From the Times
Criminal law
The defendant was appealing against his convictions for assaulting police officers and for threatening behaviour. In this situation a police officer held the defendant by the arm. The issue was whether the police officers were acting in execution of their duty in arresting the defendant and whether a police officer, when arresting someone, must intend to exercise that power and believe they have the power to arrest. It was held that the officer had committed an assault. The court said that when a police officer restrains a person he/she commits an assault if he/she did not intend or purport to arrest the person. The police officer in this case never asserted to the defendant that he was being arrested. The defendant’s convictions were quashed.
Wood v Director of Public Prosecutions [2008] EWHC 1056 (Admin)
Damages
The claimants claimed damages for personal injury for being born with limb deformities which they said were the result of their mothers’ exposure to toxic chemicals during reclamation and decontamination of land in Corby. The defendant council argued that claims for damages for personal injury no longer existed (the defendants argued this as a result of dicta in the House of Lords cases Hunter v Canary Wharf [1997] AC 655 and Transco PLC v Stockport Metropolitan Borough Council [2004] 2 AC 1). The Court of Appeal held that those cases were only obiter statements as neither of the cases were based on claims on public nuisance or personal injury claims.
Corby Group Litigation v Corby Borough Council [2008] EWCA Civ 463
Immigration
It was held by the Court of Appeal that even though the Asylum and Immigration Tribunal had the authority to give an oral decision at the end of a hearing, it was the actual written determination that constituted the actual decision. Where an oral decision was inconsistent with the later written decision then a new hearing should be held.
SK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 495
Notices & notes
Government to consider expert panel to improve regulation
Commerce Minister Lianne Dalziel says she will recommend that the government consider a Select Committee recommendation to establish a high-level expert taskforce to investigate ways of improving the process for making and reviewing regulation.
Criminal Procedure Bill to progress
The National Party's decision to support the Criminal Procedure Bill and will now help the Bill move quickly through the final stages..
Cleary prize nominations/applications open
The Law Foundation now administers the annual Cleary Memorial Prize and applications are now being sought.
SPRIG committee meeting
The Small Practice Representation and Interest Group (SPRIG) committee of ADLS will be holding future committee meetings around the Auckland region.
The first of these meetings is to be held at the offices of Corban Revell, 20 Alderman Drive, Waitakere, commencing at 1pm on June 19, 2008. This session will consider remuneration and exit packages. Practictioners are encouraged to attend this informal discussion. Please RSVP to Eileen Yee
Companies Office client survey
The information you provide will help the Companies Office make improvements to their services. The survey will be available for completion until Friday 27 June 2008 and takes about ten minutes to complete.
Lawyers join Govt freephone for Blue Chip victims
Lawyers have offered to take part in the Companies Office freephone line to help victims of Blue Chip..
Broadband spectrum
A discussion paper on the operation of the Managed Spectrum Park (MSP) in the 2.5 GHz radio spectrum band has been released. Submissions close on 18 July 2008.
NZ Law Foundation International Research Fellowship
Applications for 2008 close on 1 September 2008.
Child Poverty Action Group case begins in the Human Rights Review Tribunal
The case is about a tax credit - the In-Work Payment - more recently dubbed the In-Work Tax Credit (IWP). CPAG says the IWP discriminates against children in beneficiary families who miss out on this particular form of child-related family assistance because of their parents' work or employment status.
Parental leave payment to go up
Support for families with new babies is increasing with changes to parental leave payments.
Bill introduced to modernise unit titles law
The Unit Titles Bill will bring existing legislation up-to-date and clarify the rights and responsibilities for both unit title owners and bodies corporate.
Bell Gully's Commercial Quarterly
The Autumn 2008 issue previews upcoming developments and summarise recent cases and legislation of interest.
Greater protection for tenants under new RTA bill
The Residential Tenancies Act amendment bill will give greater protection to vulnerable tenants and help both landlords and tenants to understand and enforce their respective rights.
New employment legislation - Three Bills and an Act
Buddle Findlay's employment update, reports on 4 different pieces of employment legislation which are in the pipeline.
Guardians of New Zealand Superannuation
The Auditor-General’s performance audit report on Guardians of New Zealand Superannuation: Governance and management of the New Zealand Superannuation Fund has been presented in Parliament this afternoon.
Platform for New Digital Future Launched
Communications and Information Technology Minister David Cunliffehas launched the structure that will become an important contributor to New Zealand’s digital future.
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.
Government to take action on illegal logging
The Labour-Progressive Government is to adopt a comprehensive package of measures to address the issue of illegally-logged wood products.
The goverment released two reports commissioned by the Ministry of Agriculture and Forestry on the impacts of illegal logging and options for addressing the problem, and the recent Cabinet paper outlining the strategy.
Revised Government Policy Statement on Electricity Governance released
The Government Policy Statement (‘GPS’) on Electricity Governance has been revised and updated to be consistent with the New Zealand Energy Strategy and New Zealand Energy Efficiency and Conservation Strategy, as well as to reflect changes that have taken place since the GPS was released in October 2004.
Update on proposed national grid regulations
Two proposed national environmental standards aimed at improving the management and security of the national grid will be reconsidered and reworked following public feedback.
Telephone monitoring improves public safety
Telephone monitoring technology recently implemented in prisons has paid dividends following new charges being laid against a prisoner after he was caught making serious threats against his partner.
Getting the Deal Through – Insurance & Reinsurance in New Zealand
Scott Barker (partner) and Peter Niven (senior solicitor) of Buddle Findlay, have written the New Zealand chapter on Insurance & Reinsurance 2008 for the Getting the Deal Through series. This series provides comparative international analysis for corporate counsel and cross-border legal practitioners, addressing the most important issues and giving "first step" advice from local experts in major jurisdictions around the world.
Greater certainty for regulated businesses
The Commerce Commission has launched a significant new project to create a series of regulatory guidelines and principles that will apply to the regulated businesses in the electricity and gas sectors. A process paper released by the Commission today explains how it will set the new regulatory guidelines and how interested parties can be involved in the process.
Budget tax bill passed
The Taxation (Personal Tax Cuts, Annual Rates, and Remedial Matters) bill introducing tax changes announced in the Budget 2008 has been passed in Parliament. It gives effect to personal tax cuts that are to be phased in over three and a half years and makes complementary changes to Working for Families tax credits. For more information see Guide to the tax changes proposed in the Taxation (Personal Tax Cuts, Annual Rates, and Remedial Matters) Bill - and the bill.
Commission of Inquiry into Police Conduct
Fourth quarterly report on the Implementation of recommendations by the Ministry of Justice and the Independent Police Conduct Authority as at 31 March 2008.
Fulbright award applications due
Fulbright New Zealand Senior Scholar Awards are for academics, artists or professionals with distinction to lecture and/or conduct research in the US. Applications are encouraged from any discipline of New Zealand studies and this could include some aspects of New Zealand law.
Introduction to Dispute Resolution: 5 day programme
11 - 15 June 2008, Auckland
This 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.Employment Law Bar Dinner
The Employment Committee invites you to the Employment Law Bar Dinner at the Northern Club, 19 Princes St.
Thursday 12 June 2008
6:30pm pre-dinner drinks and 7:30pm dinner.
Hon Justice Anderson retirement dinner
Auckland District Law Society and the New Zealand Bar Association are holding a dinner in honour of Hon Justice Anderson's retirement from the Supreme Court.
Friday 13 June 2008, at the Northern Club, Princes St, Auckland.
7:00pm for 7:45pm Dinner.
RAMs Boardroom Bash
Kensington Swan invites Recently Admitted Members (RAMs) to a Boardroom Bash on Wednesday 25 June 2008.
Drink & refreshments form 5:30pm until 8:00pm at 18 Viaduct Harbour Ave, Auckland.
Given the overwhelming response and success of RAMs events, numbers will be strictly limited. Please RSVP no later than Friday 20 June to Eileen Yee.
Judge for yourself - Atwaters Musicworks concert
Auckland District Law Society and Atwaters Musicworks presents Judge for Yourself a concert showcasing the musical talents of ADLS members on Sunday 29 June 2008 at The Maidment Theatre, Auckland University, 2.00 pm.
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.
In the news...
Donovan, Brooke. "Law change aims to save crime victims grief". The New Zealand Herald, 3 June 2008, page A3
"Delamere considers appeal after judge dismisses bid for costs". The New Zealand Herald, 5 June 2008, page A8
Internet sites
Law in Popular Culture Collection
The Tarlton Law Library at the University of Texas School of Law hosts this collection, which focuses on law in popular culture. The goal of the collection is "to provide as broad a picture as possible of the image of the lawyer in the United States and British Commonwealth." The collection consists of works of fiction in all genres as well as legal humor, plays, and feature films. If you can't make it to Austin to check out these materials in person the site provides quite a bit for the virtual visitor. There are a number of E-texts available including "Collins to Grisham: A brief history of the legal thriller" as well as an entire bibliography of e- texts which tell "the lawyer's story." Visitors may also want to check out the fun section entitled "Lawyerly Quotations from Popular Culture". In addition, the site provides a number of movie posters, movie stills, and lobby cards to peruse.
(From The Scout Report, Copyright Internet Scout Project 1994-2008)
Law Commission papers
A new Inquiries Act (NZLC R 102)
The Commission's latest report reviewing and updating the law relating to public inquiries in New Zealand has been tabled in Parliament. The central piece of legislation considered in the Report is the Commissions of Inquiry Act 1908, which sets out the overarching framework and powers of commissions of inquiry and royal commissions.