Whiteboard for 7 August 2008
Recent cases
DISCIPLINARY TRIBUNALS - appeal by dentist against CA decision allowing disciplinary charges to be heard by Dentists Disciplinary Tribunal (the Tribunal) – appellant was a dentist who was tried by jury on four charges of indecently assaulting three female patients, whom he had sedated for the purpose of treatment – appellant was acquitted on all charges – after trial, complaints were made by patients to Dental Council – complaints were referred to respondent Complaints Assessment Committee, set up under the Dental Act 1988 (the Act) – respondent referred complaints to Tribunal – HC refused appellant’s application for order declaring, as invalid, respondent’s decision to put matters before Tribunal – HC decision was upheld on appeal – whether respondent’s decision to initiate disciplinary proceedings, insofar as they concerned allegations that were the subject of acquittal by jury, amounted to an abuse of process – standard of proof that applied to disciplinary proceedings under the Act, considered
HELD: (per majority): a flexibly applied civil standard of proof should be adopted in proceedings under the Act, and other similarly constituted disciplinary proceedings in New Zealand, unless there was a governing statute or other rule requiring a different standard – in law, rule against double jeopardy did not inhibit institution of proceedings before a disciplinary body – it was true there was a rule of policy that the use of a civil action collaterally, to attack a subsisting conviction of plaintiff, was usually an abuse of process – but this rule did not extend to questioning acquittals – there was no rule of law that prevented inquiry into some of the essential facts in issue in a criminal trial, where they were relevant to an accusation of a different character – where an element of a criminal charge was not necessarily resolved in the criminal process, and could found a finding of unprofessional conduct, it was not in principle an abuse of process for a later disciplinary inquiry to examine that element – nevertheless, there would be some situations in which it would be an abuse of a Complaints Assessment Committee’s discretionary power to refer allegations of aberrant conduct by a practitioner to Tribunal, because the scope of a disciplinary inquiry would simply replicate the exercise that a criminal court had undertaken, where that process had resulted in an acquittal – bodies such as respondent must be careful not to permit their processes to be used simply as a reserve means of punishing conduct of a criminal nature, after criminal proceedings had been unsuccessful – subject to one qualification, a complaint about 1987 incident of indecent touching, this was not the case here – in relation to all other particulars scope of intended disciplinary action was wider than that of criminal proceeding, particularly in relation to concerns over appellant’s allegedly excessive sedative dosing practices – whilst inquiry would traverse some of the same grounds as criminal proceeding it would be wider in scope – appeal allowed to extent that one allegation of professional misconduct in 1987 was not to form part of charge heard by Tribunal - in all other respects appeal dismissed
(NOTE): Anderson J would have dismissed appeal in its entirety – Elias CJ in dissenting judgment was of the view that facts justifying serious professional disciplinary charges should be established to satisfaction of Tribunal to standard of proof beyond reasonable doubt and that, in absence of some sufficient justification, a disciplinary charge which was coextensive with the commission of a crime, but in respect of which a criminal conviction had not been entered, was an abuse of the disciplinary power
Z v Dental Complaints Assessment Committee [2008] NZSC 55
From the Times
JUDICIAL REVIEW - This was a judicial review case brought by E after the Jewish Free School refused to offer E’s son a place at the school. It was held that religious schools faced with over-enrolment who gave priority to children sharing the same faith did not racially discriminate against non-members.
R (E) v Governing Body of JFS & Ors [2008] EWHC 1535 (Admin)
CRIMINAL LAW - The defendant was a British citizen who hacked into 97 US government computers and deleted data from these computers (including computers of the US Army, Navy, Air Force, Department of Defence and NASA. The case involved plea bargains. The defendant was offered a deal in exchange for not contesting the extradition process and agreeing to plead guilty. He was told a sentence of 3-4 years would be imposed and after 6-12 months he would be returned to the UK to serve the rest of his sentence. He was told that if he declined the offer he would serve 8-10 years, or longer, and would not be repatriated. The defendant refused the deal. The House of Lords held that a plea bargain offered by a foreign prosecutor where extradition was sought was not an abuse of process unless it was so extreme so as to amount to a threat of unlawful action with threatened the integrity of the extradition process.
McKinnon v Government of the United States of America [2008] UKHL 59
Notices & notes
Legal education in flux
A public lecture by Sir Kenneth Keith entitled "1883 to 2008: Law and legal education: Then and now" will be given at The University of Auckland Law School on Wednesday 27 August 2008. 6pm Stone Lecture Theatre, School of Law, 9 Eden Crescent, Auckland.
RAMs Montagues & Capulets 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..
Liquor licensing bill introduced
The Sale and Supply of Liquor and Liquor Enforcement Bill will give communities a greater say over when, where and how liquor can be sold.
Jennifer Binns appointed District Court Judge
Jennifer Ann Binns, Barrister of Hamilton, has been appointed a District Court Judge..
Supreme Court Amendment Rules
The High Court Rules Committee is seeking comments on its proposed Supreme Court Amendment Rules 2008 and is inviting submissions from members of the profession on any aspects of the Rules by September 15. The rules amend the Supreme Court Rules 2004. Any appeal for which leave has been granted before the commencement of the new rules will be dealt with under the existing Supreme Court Rules 2004.
Foreshore and seabed Deed of Agreement with Ngati Porou
The government has initialled a Foreshore and Seabed Deed of Agreement with negotiating representatives of Te Runanga o Ngati Porou, on behalf of certain hapu of Ngati Porou.
Bar dinner
The Society is holding a bar dinner in honour of new appointments to the Judiciary.
The Honourable Justice Wylie
His Honour Judge Maude
His Honour Judge Paul
Friday 29 August 2008 at the Ellerslie Covention Centre, Greenlane. 7:00pm for 7:45pm dinner.
'Young' Resource Management Lawyers Assoc Event : The Great (or not so great) OE
Tuesday, 26 August 2008 at Minter Ellison Rudd Watts, Level 20, Lumley Centre, 88 Shortland Street, Auckland. An evening for young practitioners from all disciplines which addresses matters such as what is happening in the resource management field overseas, the benefits of overseas experience to working in New Zealand, careers paths and opportunities and pitfalls for young practitioners (the good, the bad and the ugly).
Trade Remedies under the New Zealand - China Free Trade Agreement
Under the New Zealand - China Fee Trade Agreement both parties retain their existing WTO rights and obligations on anti-dumping and countervailing duties procedures and on the use of global safeguard measure.
Capital Market Development Taskforce
The Capital Market Development Taskforce has been established to look at the current state of New Zealand's capital markets, the international context, future risks and opportunities and key changes necessary to deliver the best possible financial system for New Zealand.
Specific transport targets set
Specific targets have been set for the transport sector and they are detailed in two key documents just released - the New Zealand Transport Strategy 2008 and the first Government Policy Statement on Land Transport Funding. The two documents are part of a raft of changes to the transport sector contained in the Land Transport Management Amendment Act 2008.
Rules of Conduct and Client Care - implications for Barristers
The NZBA Council has reviewed the Rules and prepared a draft letter of instruction/engagement adapted from the NZLS forms.
Resource Management Negotiation Training by Gay Pavelka
Monday, 25 August 2008 at the Mount Richmond Hotel & Conference Centre, Vineyard Room, 676 Mt Wellington Hwy, Mt Wellington, Auckland.
This course is designed for people who need to build agreements over resource management issues such as: siting of facilities, conservation, access to land, building disputes, managing waterways, changing land use activities.
Cycle 7 of Financial Reporting Surveillance Programme released
The programme encourages issuers to improve the quality of their financial reports and in that way contributes to the integrity of New Zealand's securities markets.
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.
RAMs Boardroom Bash
Bell Gully invites Recently Admitted members (RAMs) to a Boardroom Bash on Wednesday 27 August 2008 at Vero centre, 48 Shortland St, Auckland for drinks and refreshments from 5:30pm to 8:00pm. Please RSVP to Eileen Yee.
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.
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.
IBA conference 2008
Buenos Aries 12-17 October
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.
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.
Lawyers needed for NZ Lawyers Cricket team
Lawyers are being sought to form a New Zealand Lawyers Cricket Team to play at the Lawyers Cricket World Cup in Cambridge, England, July 25 to 3 August 3, 2009. The team will be hosted by the Team Committee of the Bar of England and Wales Cricket Club. Wives and partners are most welcome to participate in the trip. Costs have still to be finalised. An Australian Cricket Lawyers Week will be held during late December early January 2009 to which NZ Lawyers are invited. Further information and application forms are available from John Dean.
In the news
"Sonny Bill served court order via txt". The New Zealand Herald, 6 August 2008
Scott-Howman, Andrew. "Firing someone for not speaking proper". The Independent, 7 August 2008, page 27
Internet sites
Beijing Olympics
The Official website of the 2008 Beijing Olympic Games has sections on Olympic education, Olympic culture and Olympic spirit. But also check out the resources put together by the Christchurch City Library which includes an Olympics backgrounder (information on the Olympics old and new and everything from TV coverage to the Olympic Museum), a section on Beijing controversies and more. AND New Zealand History online has also put together some really interesting pages on New Zealand's Olympic story.
Law Commission papers
Law Commission to review liquor laws
The Law Commission will undertake a comprehensive two-and-a-half year review of New Zealand's liquor laws to bring them into line with current community behaviours and concerns around the use of alcohol. The Terms of Reference for the review can be found on their website.