Whiteboard for 30 October 2008

Recent cases
From the Times
Notices & notes
In the news
Regulation summary
Internet sites

Recent cases

ADMINISTRATIVE LAW - appeal from decision of HCJ on application for judicial review – in 2003 Housing New Zealand (HNZ), a Crown agent providing housing services for people in need, took over 1,600 properties from the Auckland City Council – on change of ownership, the late Mr Bradburn became a tenant of HNZ and his rent thereafter was calculated in accordance with the Housing Restructuring and Tenancy Matters Act 1992 (the Act) – the Act provided for market rents, and, where applicable, income related rents – Mr Bradburn's rent was of the latter kind - in 2004 Mr Bradburn challenged HNZ's decision to include his wages, from his part-time employment, in his assessable income for purposes of calculating his rent – Mr Bradburn unsuccessfully appealed to the State Housing Appeal Authority

Mr Bradburn then appealed to DC on the basis, inter alia, that neither HNZ, nor the Authority, had exercised the discretion provided by s43(4) of the Act which read "If satisfied that special circumstances justify its doing so, the company may, in its absolute discretion, set for and accept from a tenant of any HNZ housing a rent lower than the rent otherwise required by subsection (2) or subsection (3) to be paid for the housing by the tenant" – reference to "the rent otherwise required by subsection (2)" was a reference to income-related rents, as calculated under the Act – the reference to rents "required by... subsection (3)" was a reference to market rent - DCJ found HNZ should have given Mr Bradburn notice of his right to apply for special circumstances, in terms of s43(4), but had not done so - HNZ applied for judicial review – HCJ found, inter alia, there was an obligation on HNZ to ascertain whether special circumstances might exist, for purposes of exercise of its discretion in s43(4), by giving an applicant notice of an opportunity to apply for special circumstances, before it calculated an income-related rent under s43(1) and s43(2)

HELD: function of s43(4) was properly regarded as an enabling provision, empowering HNZ to initiate or effect rent reductions in limited (special) circumstances which, but for existence of s43(4), HNZ would be powerless to address - as s43(4) was simply empowering, Parliament could not have envisaged a scheme of applying for a "special circumstances" rent reduction and, accordingly, it could not have envisaged HNZ would be under a duty to notify tenants of their ability to apply – of course, Parliament would have wanted to ensure that those in need should have means of bringing those needs to the state's attention – HNZ's function in meeting those needs was met by its providing accommodation at below market rents, a function for which it was reimbursed by the Crown – in so far as that state assistance was insufficient, those in need should look to the Ministry of Social Development and the Social Security Act – it was not HNZ's function under s43(4) to alleviate financial need, as that would be to give HNZ tenants discretionary state assistance for general financial hardship, that was not available to private sector tenants – appeal allowed

Declarations made: (a) there was no legislative intent, express or implied, that "special circumstances" must be taken into account before income-related rent was calculated under s43(1) and s43(2); - (b) discretion conferred by s43(4) did not confer on an applicant for income-related rent a right to be heard as to exercise of that discretion; - (c) discretion conferred by s43(4) did not import an obligation on HNZ to give notice to applicants for income-related rent, that there was an opportunity to apply for exercise of that discretion.
Housing New Zealand v The District Court of Auckland (CA 644-07, 21 October 2008)

From the Times

DAMAGES - The claimant was in police custody when he had a seizure and fell from the top bunk bed that he was lying on (the seizure was caused by his withdrawal from drugs and alcohol). As a result of this event he suffered from severe brain damage and is now severely disabled. He had become addicted to drugs as a teenager. The lower court judge had found that because the claimant made the lifestyle decisions that he did, damages should be reduced by 15 percent because of contributory negligence. In this appeal the Court of Appeal held that the judge was entitled to find that the claimant was at fault in becoming addicted to drugs. However, the "addiction was not a potent cause of the injury." The claimant's fault in becoming addicted "was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff … to be properly regarded as a cause of the injury…. [T]he claimant's addiction was no more than part of the history which had led to his being a person whose medical and psychological conditions were as they were when he was admitted to … prison". The Court of Appeal ruled that "the claimant's injury was not partly the result … of his becoming addicted to drugs and alcohol as a teenager" and even if it had been it was not just and equitable to reduce the damages.
St George v Home Office [2008] EWCA Civ 1068

Notices & notes

The Role of Experts in Construction Disputes
Society of Construction Law Inc Presents: The Role of Experts in Construction Disputes. The Hon Justice Heath will be speaking on the role of experts in construction disputes.
Auckland 26 November 2008.

Draft requirements paper on regulatory financial reporting by Telecom
The Commerce Commission has issued a draft paper on the regulatory reporting requirements for the accounting separation of Telecom. The draft paper outlines the financial information that Telecom must provide and the conditions it must follow when preparing this information.

NZ submission on mutual recognition
New Zealand's submission to the review "Australia's Future Tax System" presented the case for introducing trans-Tasman mutual recognition of imputation and franking credits. The submission was made at the invitation of the Australian Treasurer in July, when both governments announced they were open to the idea of moving towards mutual recognition for imputation purposes of company taxes paid in the other jurisdiction.

Recent library purchases
The library has recently purchased several interesting texts. Take a look at the list - you are sure to find something useful.

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".

Economies continue to grow with emissions trading schemes
A report released today by the Australian government has confirmed that a country's economy will continue to grow with an emissions trading scheme, and it's cheaper to act sooner rather than later.

Brookers Tax Law Update 2008
Make sense of the Taxation (International Taxation, Life Insurance and Remedial Matters) Bill 2008.
5 November 2008, 5:20pm to 8:30pm
Norman Shieff Room & Roof Garden, Chancery Chambers, 2 – 8 Chancery Street, Auckland.

New Zealand Pegasus Scholarship Programme 2009
The Pegasus Scholarship Trust offers the opportunity for two New Zealand litigation practitioners, who have been in practice for not more than five years, as at the 1st February 2009, to work in barristers’ chambers in London for a period of 6 weeks. Applications close 14 November 2008.

Change to redundancy laws possible
Rob Towner and Susannah Leslie from Bell Gully look at the Labour Party's recently announced industrial relations policy, which could dramatically alter an aspect of redundancy law that has been well-established over the past two decades.

New power of attorney regime: appropriate safeguards for elder abuse or overkill?
Kensington Swan lawyers look at the more rigorous process for the granting of enduring powers of attorney which came into effect on 26 September 2008 under the Protection of Personal and Property Rights Amendment Act 2007.

2008 NZLS Legal Challenge
This annual 5 km road race is run as part of the Push Play Corporate Challenge held in November. The Auckland race, held in the Domain, will be run on Wednesday evening 19 November with a start time of 6.30pm.

AMINZ Mediation Forum - Auckland
Wednesday 26th November 2008 9:30am to 3:00pm
The Forum format will provide you with discussion and advice on current topics relating to your everyday practice. The interactive forum will provide people working in the area of mediation with an opportunity to deal with difficult issues they encounter.

In the news

"Real estate company fined for misleading "buyer enquiry over" ads. Commerce Commission Release no 51, Issued 29 October 2008.

"Google settles copyright lawsuits with publishers, authors for $125M". Computerworld, 28 October 2008

"Sacking of teacher judged fair". New Zealand Herald, 25 October 2008, discusses Lewis v Howick College Board of Trustees (ERA, Auckland, AA359/08, 17 Oct 2008)

Regulation summary

Internet sites

Audiovisual Library of International Law
The United Nations Office of Legal Affairs (OLA) has launched an "Audiovisual Library of International Law" . The website has three main parts: the Historic Archives; the Lecture Series; the Research Library. The Audiovisual Library aims to provide free, scholarly resources to students and practitioners around the world, particularly in regions where there are few resources for the study of international law.

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