Whiteboard for 9 October 2008

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

Recent cases

ADMINSTRATIVE LAW - appeal against determination that decision of 1st respondents, three Auckland Regional District Health Boards, to award contract for laboratory services to appellant, was invalid and of no effect – scope of judicial review in public sector contracts – alleged conflict of interest and access to inside information of pathologist, B, also elected member of Auckland District Health Board (ADHB), involved in successful tender – extent of consultation required by DHBs under New Zealand Public Health and Disability Act 2000 (the Act) - appellant awarded contract for provision of community laboratory services in Auckland region after appellant and 2nd respondent, incumbent provider, submitted proposals in extended evaluation process – issues on appeal, inter alia, proper scope of judicial review in commercial decisions of DHBs, whether B had conflict of interest or was improperly advantaged by confidential or inside information and extent of 1st respondents’ obligations to consult primary health organisations or 2nd respondent in contract process – whether "soft" information concerning thinking and attitudes of key decision makers within the 1st respondents was capable of being confidential or inside information - supplementary judgment of Hammond J concerning proper scope of judicial review – "twilight" area of public sector contracting - pressing task for courts to ameliorate problem of current fog in judicial review particularly in area of substantive judicial review

HELD (inter alia): (1) while the Act effected sea change in management of public health services emphasizing public service aspect, commercial aspect not removed – relatively limited role for judicial review of commercial decisions indicated subject to statutory context - objectives in s22 and functions in s23 are social or public welfare type objectives and functions, however DHBs expected to act commercially to some extent and in some contexts, s25(2)(a) and (b) of the Act empowers DHBs to “negotiate and enter into” service agreements (no requirement to use competitive tendering process) and s87 broader in scope than corresponding provisions in Crown Entities Act 2004; – (2) neither Mercury Energy v Electricity Corporation of New Zealand or Pratt Contractors v Transit New Zealand supports broad based “probity in public decision-making approach” of type adopted in HC - here limited scope for imposition of further public law obligations of procedural fairness which may significantly limit DHB’s ability to participate fully in commercial negotiations – existence of other accountability mechanisms – troubled by Judge’s view that DHBs could follow statutory procedures in relation to conflicts of interest or use of inside information yet still be found to have breached public law obligations; - (3) terms “conflict of interest”, “transaction” and “interest in a transaction” in s6 of Act – person bidding in competitive tender for DHB contract will be interested in transaction as will person proposing to bid for contract which DHB is proposing to put to tender (s6(2)(c) - B’s general declaration of interest when elected sufficient in absence of firm proposal but not once had decided to take steps towards putting proposal to ADHB - B in position of conflict once he decided he would attempt to put together consortium to tender but delay in taking leave of absence was not problematic nothing occurring in intervening weeks to prejudice position; - (4) significant reservations as to whether “soft” information could constitute inside information for purposes of s57 of Act – strong policy arguments against - not necessary to finally determine - evidence does not justify conclusion that B had inside information not available to 2nd respondent when it made its final bid or that 2nd respondent was irretrievably prejudiced from time of initial tender – no improper use of inside information by B and 2nd respondent not at informational disadvantage; - (5) statutory obligation to consult where significant changes are to be made to services provided - here same service specifications sought delivered at lesser price – no duty to consult PHOs, GPs or 2nd respondent - statutory obligations to consult in some circumstances subject to judicial review but not Crown funding agreements and other Government documents – distinction between consultation undertaken as matter of good practice and statutory obligation to consult - appeal allowed – orders of HC that decision and contract invalid quashed
Lab Tests Auckland Ltd v Auckland District Health Board & Ors (CA154-07, 25 September 2008)

Notices & notes

Environment Judge appointed
Jane Evelyn Borthwick, Barrister of Christchurch, has been appointed an Environment Judge.

District Court Judge appointed
Gerard Martin Lynch, Barrister of Christchurch, has been appointed a District Court Judge.

New secondary tax rate announced
The Government has agreed to a new, bottom secondary tax rate of 12.5 per cent. The decision flows from the major package of personal tax cuts announced in Budget 2008.

Code of Practice for Retirement Villages
The new Code will set out both the rights of residents and the obligations of village operators to ensure greater clarity and protection. The Code takes effect in October 2009.

Regional Fuel Levy details announced
A range of significant Auckland transport projects, including Auckland passenger rail electrification, have been given a green light with the Government's decision to approve Auckland's regional fuel levy scheme.

Copyright (New Technologies) Amendment comes into force
The Copyright (New Technologies) Amendment Act 2008 will soon come into force. The amendments update New Zealand's copyright law to reflect current advances in digital technology.

The Biofuel Bill - Effective From 1 October 2008
The Biofuel Bill was passed on 3 September 2008 and its provisions came into effect from 1 October 2008. As the Biofuel Bill comprised provisions to amend other Acts, there will not be a "Biofuel Act", only amendments made to relevant Acts.

New rules of origin relating to the New Zealand-China FTA in force
Exporting to China? In order for New Zealand companies to access the preferential tariffs it offers, exporters must demonstrate that their goods qualify under the rules of origin set out in the New Zealand-China FTA.

Ngāti Apa (North Island) Deed of Settlement signed
Ngāti Apa (North Island) and the Crown have signed a Deed of Settlement. Under the Deed of Settlement, the Crown is obliged to introduce legislation to implement the settlement in the next twelve months.

Appointment of Senior Counsel
The Rt Hon Sir Geoffrey Palmer, David Heaney, Murray Gilbert, Jan McCartney, Jack Hodder, Simon Eisdell Moore and Christine Gordon have been appointed Senior Counsel.

Minimum family tax credit to rise
The annual amount of the minimum family tax credit that guarantees a family's after-tax income rises from $18,460 to $20,540 from 1 April 2009. The increase was approved by Order in Council yesterday.

Netherlands Antilles TIEA comes into force
A new tax information exchange agreement between New Zealand and the Netherlands on behalf of the Netherlands Antilles has entered into force. The agreement has effect from 1 January 2009.

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.

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.

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.

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.

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".

In the news

"Handwash doctor guilty of drink driving" New Zealand Herald, 9 October 2008.

Marks, Kathy "Justice at last for children of the Bounty" New Zealand Herald, 7 October 2008

"Court orders Petricevic Porsche to be sold" New Zealand Herald, 8 October 2008.

"Lawyer Sues His Firm For Failing To Deliver on its Promises" LawFuel

Regulation summary

Internet sites

New Societies and Trusts website
The new look Societies and Trusts website adds value to the New Zealand business community by better serving the voluntary sector and providing clear and up-to-date information to all. The revamped website is the best place to search for Incorporated Societies and Trusts, upload financial statements and maintain details. There is no change to the online services available on the website. The new site contains a host of new improvements including: improved information,
improved site navigation, better website searching, a wider range of customer support services and helpful links to other sites containing relevant and specialised information.

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