Whiteboard for 3 July 2008
Recent cases
TRANSPORT LAW - excess breath alcohol (drink driving) – appeal against conviction - whether, in relation to a charge of refusal to accompany an enforcement officer without delay, when required to do so (under s59 Land Transport Act 1998 (LTA)), it was necessary for Crown to prove breath screening test was conducted in manner set out in Transport (Breath Tests) Notice (No. 2) 1989
HELD: no need to prove anything more than that tests were administered in fact, and a result was obtained using an approved device, accompanied by a certificate of compliance - DCJ was incorrect to determine, given provisions of s64 LTA, that information, containing a charge under s56(1) LTA, should be dismissed on basis prosecution had failed to prove both breath screening test and evidential breath test had been carried out in accordance with Notice – DCJ was also incorrect to determine, given provisions of s64 LTA, that information, containing a charge under s59(1)(b) LTA, should be dismissed on basis prosecution had failed to prove breath screening test described in s69(1)(a) LTA had been carried out in accordance with Notice.
Full Court of HC was incorrect to determine, in assessing history of blood alcohol legislation, that an Officer could not lawfully obtain an evidential breath test result without taking appropriate steps in appropriate manner – since 2001 Amendment to LTA, the only requirement was for Officer to give evidence of carrying out a breath screening and evidential breath test in fact, unless an evidential foundation of relevant bad faith had been laid (in which case lack of bad faith must be proved) – it was not an essential element of a charge of driving with excess breath alcohol, when the validity of the breath test had not been challenged by the defence, that prosecution adduce evidence to prove procedures set out in relevant gazette notice had been complied with – indeed, defence had no ability to challenge validity of breath test on basis of non-compliance with Notice – there was no evidentiary burden on defence to raise, in course of Crown case, whether test in question, be it breath screening or evidential breath test, was in fact carried out in prescribed manner – placing an evidential burden on accused would suggest that manner in which test was administered was no longer an element of offence, but a defence in its own right – nothing in working of LTA would justify this conversion of an element of the offence to a defence, which accused must put in issue – appeal dismissed
R v Aylwin (CA 227-08, 6 June 2008)
From the Telegraph
AUDITORS - the appellants were a firm of accountants who carried out audits of the respondent company. The appellants failed to detect fraud by an individual who, at the relevant time, was the sole directing mind of the respondent. The respondent was ordered to pay damages to banks from which the money had been obtained. The respondent’s claim against the appellant was brought by their liquidators. There were two issues in this case. First, whether the ex turpi causa maxim prevented the respondent suing in respect of its losses, which were caused by an individual who was the respondents directing mind. Secondly, whether the maxim provided a defence to the appellant when the detection of dishonestly was one of the reasons the appellants had been employed. It was held that the individual, who was the sole directing mind of the respondent, had procured the respondent to enter into the fraudulent transactions with the banks. The respondent was not the target or victim of its agent’s dishonesty but was the actual fraudster. The respondent’s claim failed because of the application of the ex turpi causa principle. The respondent’s claim had been based on its own illegality and fraudulent behaviour. The appeal was allowed.
Moore Stephens (A Firm) v Stone & Rolls Ltd (in liquidation) [2008] EWCA Civ 644
MEDICAL MISADVENTURE - this case involved duties of care, medical treatment and negligence, premature births, brain damage and cerebral palsy. The claimant suffered brain damage which led to cerebral palsy after his mother gave birth to him at the defendant hospital. The issue was whether the defendant had been negligent in failing to act on indications that the claimant should be delivered by caesarean section which would have avoided hypoxic damage.
Boustead v North West Strategic Health Authority [2008] EWHC B11
Notices & notes
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.
"Legal issues" lectures
Winter Week on Campus (7-11 July) features morning and afternoon lectures by distinguished University of Auckland staff. Law School academics will be to the fore giving all four lectures on "Legal issues" (Rm 018, Clocktower Bldg No. 105, 22 Princes St), one of six streams in the popular annual programme which anyone interested can attend.
- "Disclosure in court of a criminal defendant’s previous convictions, similar offending and bad character". Associate Professor Scott Optican - Monday 7 July 1:30-2:30pm
- "Finders keepers?" Associate Professor Paul Myburgh. Tuesday 8 July 1:30-2:30pm.
- Guantanamo Bay and the ‘War on Terror’" John Ip. Wednesday 9 July 1:30-2:30pm
- "The admissibility in criminal trials of evidence obtained illegally by the police". Associate Professor Scott Optican. Thursday 10 July 1:30-2:30pm
The Employment Relations (Flexible Working Arrangements) Amendment Act 2007 now in force
This act gives employees with caring responsibilities a statutory right to request flexible work. The Act will change the way some employees and employers make and respond to requests for flexible working arrangements.
SPRIG meeting in Albany
The next meeting of the society’s Small Practice Representation and Interest Group (SPRIG) will be held on Thursday, July 17 at 1pm at Davenports Harbour, Albany. Practitioners are invited to attend and listen to the society’s Director of Professional Relations, Andrew Burger, talk about the practical implications of the new rules under the Lawyers and Conveyancers Act. Lunch will be provided and there will be no charge for members. RSVP to Eileen Yee.
Business tax reforms focus of bill
The Taxation (International Taxation, Life Insurance, and Remedial Matters) Bill introduces a number of major business tax reforms.
Privacy Bill helps trade and enhances personal rights
Privacy Commissioner Marie Shroff has welcomed the introduction of the Privacy (Cross-border Information) Amendment Bill, saying it would have benefits for New Zealand’s trading opportunities and enhance personal rights.
Finance Minister's policy update
Finance Minister Michael Cullen's update to the Deloitte Tax Seminar included a description of the follow-up work on RWT and PIE tax rates that is being done as a result of the personal tax cuts announced in Budget 2008. He also described business tax reforms contained in the bill introduced today and the process set up to deal with unintended law changes that result from the recent rewrite of the Income Tax Act.
Exclusive Economic Zone environmental effects legislation
The Cabinet paper on proposals for Exclusive Economic Zone environmental effects legislation is now available..
Have you missed Parliaments question time?
Parliament TV replays question time and Thursday’s debates, enabling viewers who miss the live coverage to watch later in the evening.
Commerce Commission consults on process guidelines for merger and acquisition clearance applications
The business community is being asked for input on a set of process guidelines the Commerce Commission plans to publish, giving guidance to businesses seeking clearance for a merger or acquisition. Submissions close 30 July 2008.
Magna Carta and the New Zealand Constitution
An address by The Hon Justice Baragwanath to the English Speaking Union on 29 June 2008.
NZBA comments on the "One Society" model
Jim Farmer QC's letter to John Marshall, President of NZLS, and Keith Berman, President of ADLS.
Address to the Australian Women Lawyers’ Conference
A speech by The Rt Hon Dame Sian Elias, Chief Justice of New Zealand at the Australian Women Lawyers’ Conference on Friday 13 June.
Disability Issues Bill to enable UN Convention ratification
The Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill removes inconsistencies within current legislation that will enable New Zealand to ratify the Convention.
Justice Goddard to give Ethel Benjamin address
Dunedin Art Gallery at 12.30pm for a 1pm start on Thursday 14 August.
Fiji Law Society annual convention and South Pacific Law Conference 2008
Westin Hotel and Resort on Denarau Island, Nadi 17th – 19th July 2008
The theme for this year’s Convention “The Rule of Law in Ethnically Diverse Societies" examines the role the law presently plays and or could play in managing the rights, interests and aspirations of the diverse communities that comprise our country and to maintain the delicate checks and balances that need to exists like in an ecosystem to maintain and sustain life.
IBA conference 2008
Buenos Aries 12-17 October
Early bird registrations close on 25 July 2008.
Maintaining and renewing the rail network
The Auditor-General’s performance audit report on Maintaining and renewing the rail network has been presented to Parliament..
Arbitrators' and Mediators' Institute of NZ Conference
1-3 August 2008 - Montana Brancott Winery, Blenheim, Marlborough, New Zealand.
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.
NZ Law Foundation International Research Fellowship
Applications for 2008 close on 1 September 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.
Interent sites
New Gazette launches
The Law Society Gazette has unveiled a modern new look for its magazine and website. Online the Gazette is radically changed, with all sections of the magazine represented. Most importantly, each area of Gazette coverage is now easily accessible - they have flattened the site's structure to make things easier to find, and the home page has everything we do right at the top of the page. Changes to content a new In Business section, created to help practitioners run their firms better.
Law Commission papers
Law Commission's Statement of Intent 2008-2009
The Law Commission’s aim is to “promote the systematic review, reform and development of the law of New Zealand”.