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LETTER
A weekly review of administration, legislation & law
OVERLAPPING TREATY The rhetoric from successive governments of full and final settlement of
CLAIMS: WAITANGI Treaty of Waitangi claims seems increasingly elusive. The Waitangi
TRIBUNAL Tribunal released four reports in December last year, including The
Hauraki Settlement Overlapping Claims Inquiry Report (Wai 2840,
- 28 January 2020 17/12/2019, 119 pp, www.waitangitribunal.govt.nz). The Tribunal found
Crown failures to undertake a proper overlapping claims process has
"created fresh grievances, fractured relationships and further delayed
the settlement process." In the letter to the Minister accompanying the
report, presiding officer, Judge Miharo Armstrong notes that it "is
dispiriting to note that many of our findings and recommendations about
the Crown's failure to properly deal with overlapping interests in
settlement negotiations ... echo those made in past Tribunal reports. It
is equally dispiriting to note the Crown's persistent failure to act on
those findings, some of which date back as far as 2003."

The report discusses previous Tribunal findings and recommendations on

the Crown's policies and processes for dealing with overlapping redress.
A recurrent theme of the Crown not engaging early enough with all
interested parties is noted. The Tribunal finds that if the Crown
engages with interested parties only after an agreement in principle has
been reached, it "will inevitably be less receptive to their input, as
it will have a vested interest in upholding" the already negotiated
offer with the settling group. Late engagement is also "destructive of
the Treaty relationship" restricting these groups' role "to that of
objectors or antagonists". Recurring Crown failure to adequately
communicate with, and share information among groups with overlapping
interests is noted. The Tribunal emphasises the importance of the Crown
being meticulous in its approach to awarding cultural redress in
contested areas, as cultural redress is particularly important for
continuing relationships. Crown failure to support a tikanga approach to
overlapping redress offers (a process that takes longer but is more
likely to achieve an enduring result), contributes to a deterioration of
relationships between groups. Finally, failure to treat interested
parties equally with the group with whom the Crown was negotiating, and
of the duty to protect all parties, is noted.

In a chapter asking if the Crown's approach to overlapping settlement

redress is treaty compliant, the Tribunal is particularly scathing about
The Red Book, the only publicly available statement of the Crown's
policies, processes, and practices. An opening disclaimer emphasises the
book's limitations and the Tribunal partly agreed with counsel that it
must look at the Crown's actions or inactions rather than the book.
Nonetheless, those actions cannot be divorced from the "only
Editor: Penny Pepperell Crown-created yardstick" groups can use to monitor the Crown's actions.
Ph. 04-472 4953
P.O. Box 5351, Wellington 6140 The Tribunal is concerned that the Red Book has not been amended
following very clear recommendations in the 2007 Tamaki Makaurau
Publisher: Settlement Process Report (30 TCL 23/1). The Crown's submission that the
NZ Financial Press Ltd book does not reflect some significant changes in practice is "precisely
Box 25942, St. Heliers, Auckland 1740
what concerns" the Tribunal. As the Crown does not necessarily apply the
Customer Services/Subscriptions: principles set out in the book, it is "misleading, at least by
[email protected] omission". The claimants in this inquiry "found themselves subject to a
mysterious and ever-changing pool of Crown practices, decisions, and
Copyright - No part may be personnel." If the Crown wants to "avoid continuous litigation, adverse
reproduced by any process
without prior written permission Tribunal findings, and delays in its settlement programme" it must turn
into practical action the "admirable sentiment" in the full title of the
Red Book, "Healing the past, building a future."
ISSN 0110-5655 43 TCL 2 (2002)
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THE COURTS LETTER

ACCIDENT COMPENSATION In HAMILTON v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 3109 per
- WEEKLY COMPENSATION Edwards J (27/11/2019) the HC allowed H's appeal from the DC decision
- SELF-EMPLOYED upholding ACC's assessment that 75% of H's income from her and her
- REASONABLE husband's company (wages, director's salary, dividends, shareholder
REMUNERATION advances, and loans from the 98% shareholding family trust corporate
- EMPLOYEE, DIRECTOR trustee) should be disallowed for determining weekly remuneration (AC
EMPLOYMENT Act, s 15 and Sch 1, cl 50). For purposes of AC Act, s 15(2) and (3),
the ACC had first to determine whether actual and deemed PAYE income
payments are a "reasonable representation" of a person's earnings "as a
shareholder-employee", then, if "no", assess and apply the total
remuneration as an employee of the company plus as a director and
determine whether that was a "reasonable remuneration" for the services
provided by a claimant as shareholder-employee and director. The latter
required determination of the tasks undertaken as employee and as
director, the time spent, and the reasonable remuneration for those
services. Profitability of the business was not relevant except in
assessing how a person's contribution to the profitability of the
company should be reflected in reasonable remuneration. Any benefit
beyond that, other than a payment received "directly" (emphasis in
original) was excluded from assessment of a claimant's earnings. ACC's
concern that s 15 could be used to maximise weekly compensation had
diverted ACC from the proper enquiry before it. The enquiry in s 15(3)
was to determine what was a "reasonable representation" of a claimant's
income irrespective of any structure set up that diverted income. Cl 50
had to be read in the light of s 15 and so also related to a "reasonable
remuneration". Here, ACC had started from the wrong premise in assessing
reasonable remuneration and so erred in law. That error was compounded
by adoption of 75% of net profits as reasonable remuneration (that
figure was derived from comparing the hours spent by Mrs H - the
claimant - compared with Mr H, ignoring the size of the business, the
number of employees and their contribution to profitability). (59 paras)

CANTERBURY In DEWES v IAG NEW ZEALAND LIMITED [2019] NZHC 2899 per Lester AJ
EARTHQUAKES (7/11/2019) the HC refused the fourth third party (QBE) leave to appeal
TRIBUNAL the HC decision, [2019] NZHC 2270, transferring the proceeding to the
- TRANSFER OPPOSED BY Canterbury Earthquakes Insurance Tribunal. QBE argued that the third
THIRD PARTY INSURER party proceedings it faces under the Law Reform Act 1936 should be
recognised as a standalone proceeding and not eligible for transfer. The
HC held that Parliament did not intend to use the term "proceedings" in
the Canterbury Earthquakes Insurance Tribunal Act 2019, s 16 (which
governs the transfer of proceedings to the Tribunal) "in the nuanced way
adopted by QBE". It would be for the Tribunal to decide whether removing
a third party is necessary for the fair and speedy resolution of the
claim. (46 paras)

CONTRACT In SAVVY VINEYARDS 4334 LTD v WETA ESTATE LTD [2019] NZSC 145 per
- INTERPRETATION Glazebrook, O'Regan and Ellen France JJ (12/12/2019), proceedings
- OPTION TO PURCHASE involving interpretation of an option to purchase grapes under long term
GRAPES UNDER SUPPLY supply agreements, the SC granted leave to appeal the CA decision,
AGREEMENTS [2019] NZCA 437, 42 TCL 37/3, on whether the CA was correct as to the
- LEAVE GRANTED TO effect on the parties' legal positions of the two earlier judgments
APPEAL dealing with whether the contract had been terminated, and the
interpretation of two key clauses. (12 paras)

CONTRACT In BROUGHAM v REGAN [2019] NZSC 143 per Winkelmann CJ and Glazebrook J
- AGREEMENT (12/12/2019) the SC granted leave to appeal the CA decision, [2019] NZCA
CONSTITUTING 401, 42 TCL 35/3, on whether the CA was right to allow the appeal to it
ENFORCEABLE in finding the guarantee of a loan where the agreement itself
GUARANTEE constituted an enforceable guarantee. (1 para)

COPYRIGHT In NGATI TAMA CUSTODIAN TRUSTEE LIMITED v PHILLIPS [2019] NZCA 647 per
- INFRINGEMENT Williams, Peters and Gendall JJ (13/12/2019) litigation between the
- DEED OF SETTLEMENT parties 2009-2013 over failure of a software start up had been settled
- BREACH in a deed of settlement providing P would discontinue and bring no
- SUMMARY JUDGMENT further claims against NT. Three years later P sent notices of "breach
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REFUSAL OVERTURNED and infringement of copyright" to NT who responded with summary judgment
proceedings. The CA granted NT's appeal from HC dismissal, [2018] NZHC
304, of its summary judgment application. On the proper interpretation
of the key clause, the claims made by P in his notices are covered by
the deed of settlement. "The parties cannot have intended that the
deed's effect could be avoided by conveniently vesting the right to
claim in a separate company which is controlled by P as its sole
director and owned by a family trust of which he is a trustee (but not,
he says, a beneficiary)." (76 paras)

COPYRIGHT In SEALEGS INTERNATIONAL LIMITED v ZHANG [2019] NZSC 147 per Glazebrook,
- INFRINGEMENT O'Regan and Ellen France JJ (13/12/2019) the SC refused leave to appeal
- SEALEGS the CA decision, [2019] NZCA 399, 42 TCL 34/3, allowing Zhang's appeal
- LEAVE REFUSED TO from the HC where Sealegs succeeded in its claims the second respondent
APPEAL had infringed its copyright in respect of an amphibious boat system.
Sealegs' complaint is that the CA misapplied the law on the facts and no
issue of public or general importance was raised. (6 paras)

COSTS IN CRIMINAL In BUBLITZ v R [2019] NZSC 139 per William Young and Ellen France JJ
CASES (9/12/2019) the SC refused leave to appeal the CA decision, [2019] NZCA
- QUANTUM 379, 42 TCL 33/3, rejecting the appeal by B and M from the quantum of
- LEAVE REFUSED TO costs awarded under the Costs in Criminal Cases Act 1967, after their
APPEAL first trial on charges relating to the collapse of finance companies,
- BUBLITZ was aborted. The SC commented that the Court may well wish to consider
at some point the extent to which the Criminal Procedure Act 2011, s 364
has a compensatory as well as a punitive purpose. (19 paras)

CRIMES In TU v R [2019] NZCA 632 per Kos P, Venning and Thomas JJ (10/12/2019)
- MURDER the CA upheld T's murder conviction where an insanity defence had been
- INSANITY DEFENCE rejected by jury (T was initially unfit to plead but responded to
REJECTED treatment at the Mason clinic and experts concluded that while mentally
- LATE AVAILABILITY impaired he was fit to stand trial). The CA discussed at length the
OF EXPERTS' REPORTS appeal grounds that the late availability of the two experts' medical
- NO IMPACT ON reports impacted on T's ability to prepare a defence and the Judge had
ABILITY TO PREPARE misinterpreted the evidence of the defence expert at the voir dire; and
DEFENCE trial counsel failed to pursue whether autism (sans psychosis) could be
a qualifying disorder for an insanity defence, but found them to have no
substance. The CA also rejected claims of prosecutorial misconduct and
criticism of the judge's summing up - an error in the summing up of the
prosecutor's submissions was not material. (72 paras)

CRIMES In LUNDY v R [2019] NZSC 152 per William Young, O'Regan, Williams,
- PROVISO Arnold and Miller JJ (20/12/2019) L, convicted of the 2002 murders of
- NO ERROR IN his wife and child, had been granted leave to appeal, [2019] NZSC 45, 42
APPLICATION TCL 17/3, on the approved question of whether the CA had erred in
- LUNDY applying the proviso to the Crimes Act 1961, s 385(1) and dismissing the
appeal despite finding messenger RNA (mRNA) evidence should not have
been admitted at L's retrial, The SC declined L's appeal (Matenga [2009]
NZSC 18 applied). The admission of mRNA evidence was not a fundamental
error and did not render L's trial unfair. The Crown case at trial did
not depend on this evidence. The SC was also satisfied of L's guilt
beyond reasonable doubt - there was no explanation for the presence on
L's shirt of central nervous system issue from his wife's brain. Other
aspects of the Crown case supported this conclusion - traces of blue and
orange paint, the same colour L painted his tools, found on the victims;
daughter's blood found on L's shirt; and evidence the murders had
been staged to look like a burglary gone wrong. (140 paras)

DEFAMATION In NOTTINGHAM v MALTESE CAT LIMITED [2019] NZCA 641 per Courtney, Brewer
- STRIKING OUT and Gendall JJ (12/12/2019) N appealed unsuccessfully from the HC
- LIMITATION decision, [2017] NZHC 1728, rejecting his claim to strike out defamation
- NOT A "MONEY CLAIM" proceedings against him on the basis the proceedings are time-barred
under the Limitation Act 2010, s 11 (defence to money claim). The CA
held that a defamation claim seeking declaratory relief and costs is not
a "money claim". (19 paras)
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EMPLOYMENT RELATIONS In A LABOUR INSPECTOR (MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT)

- DECLARATION OF v GILL PIZZA LIMITED [2019] NZCA 655 per Brown and Clifford JJ
EMPLOYMENT STATUS (18/12/2019) the CA granted leave to appeal on whether the EmpC erred in
- EMPLOYER ASSERTING finding that if a defendant asserts there is no employment relationship,
NO RELATIONSHIP the Labour Inspector must first seek a declaration of employment status
- LEAVE TO APPEAL from the EmpC under s 6(5) of the Employment Relations Act 2000 before
commencing or continuing a proceeding under s 228(1). (2 paras)

EMPLOYMENT RELATIONS In DIAMOND LASER MEDISPA TAUPO LTD v HUMAN RIGHTS REVIEW TRIBUNAL [2019]
- EXCLUSIVE NZHC 2809 per Grice J (31/10/2019) the HC dismissed DLM's application
JURISDICTION for judicial review of the Human Rights Review Tribunal (HRRT) decision
- PARENTAL LEAVE AND in which it dismissed DLM's application to strike out D's claim for
EMPLOYMENT damages for DLM's discrimination against her on account of her pregnancy
PROTECTION (including forcing her onto parental leave) which discrimination among
- HUMAN RIGHTS other events, she claimed, had forced her to resign. The HC held that
- DISCRIMINATION the issues were whether the Employment Relations Act 2000, s 161
- CLAIM IN HRRT (exclusive jurisdiction of ERA) ousted and trumped the jurisdiction of
- JURISDICTION the HRRT (Human Rights Act 1993, Pt 4), and, if not, how the
inconsistencies between the jurisdictions were to be to be reconciled,
given that there was no presumption that one was superior to the other
("Burrows and Carter Statute Law in NZ" (5th ed, 2015) at 22-23). The HC
found the reconciliation in the position of the Parental Leave and
Employment Protection Act 1987 vis-à-vis the ER Act, the NZBORA, s 19
(freedom from discrimination), and the principle that statutes were to
be interpreted so that their provisions were consistent with NZ's
international obligations (relevant provisions of the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW)
identified). The 1987 Act provided a basis for resolving disputes about
parental leave that differed from that under the ERA in material
respects. Such a dispute was not a "personal grievance" within the
meaning of the ERA. The nature of a Parental Leave dispute was such that
it could be based on a breach of the employment contract or a
discrimination depending on the grounds relied on, giving the parent a
choice of venue depending on what issues in fact arose (HRA, s 80(3)(d)
(HRC power to determine whether there was a more appropriate venue than
the HRC/HRRT) noted). D's claim was based on discrimination so the HRRT
refusal of a strike-out was not unlawful in the circumstances.
(70 paras)

EVIDENCE In R v JETSON [2019] NZHC 2919 per Dunningham J (8/11/2019) the HC ruled
- ADMISSIBLE admissible in J's trial for murder, with two others of a 65 year old
- DVD INTERVIEW man, J's DVD police interview only 24 hours after the alleged assault
- INTERVIEWING and before the victim died of his injuries in hospital. The HC held that
TECHNIQUE the combination of a "cursory observation and explanation" of J's NZ
- EXCLUSION Bill of Rights Act 1990 rights, along with the "demeaning and dismissive
DISPROPORTIONATE manner" in which the interview proceeded,and misrepresentations made to
J in an attempt to elicit particular answers, were not sufficient to
rule the statement inadmissible. J (despite cognitive weaknesses) did
understand his rights and exclusion would be a disproportionate response
to relatively minor criticism which can be made of the interviewing
technique. (84 paras) NB: Publication restrictions

EVIDENCE In R (CA89/2018) v R [2019] NZCA 638 per Collins, Simon France and Lang
- CELLPHONE SEARCHES JJ (12/12/2019) an appeal had been reopened by the CA in [2019] NZCA
IN SEXUAL OFFENDING 176, 42 TCL 19/3, after concerns that undisclosed evidence may have
CASE created a real risk the appeal outcome was affected. R sought to appeal
- POLICE HANDLING conviction for sexual offending against his 12 year old daughter where,
ERRORS integral to the daughter's evidence, were allegations he had shown her
- NOT UNDERMINING videos on his cell phone from a pornographic website. The CA found
EVIDENCE nothing has changed since the first appeal, indeed the trial, [2018]
- CRIMINAL PROCEDURE NZCA 341, 41 TCL 36/5. Even if there were errors relating to how the
- REOPENED APPEAL phone was handled by police (incorrectly connecting it to the internet
rather than making a copy), it was still necessary to link those errors
to any evidence sought to be relied on at trial. (34 paras)
NB: Publication restrictions
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EVIDENCE In ALEXANDER v POLICE [2019] NZHC 2920 per Nation J (8/11/2019) A

- INADMISSIBLE appealed successfully from a DC ruling admissible evidence of cannabis
- SEARCH WARRANT cultivation obtained through a search of his properties. The Judge had
ISSUE found the search warrant unlawfully issued and the evidence improperly
- ANONYMOUS AND obtained but admitted it on the Evidence Act 2006, s 30(3) balancing
UNTESTED INFORMANT exercise. A had a previous recent conviction for cannabis cultivation
and the HC accepted that police genuinely believed he was engaged in
further offending. But in seeking search warrants they were obliged to
provide the issuing officer with information to satisfy the officer
there were reasonable grounds for believing new offending was occurring.
The anonymous and untested informant here was potentially just relaying
rumour and gossip. The HC noted the public interest in a credible system
of justice but that this must be balanced against giving effect to human
rights and the rule of law. The inadequacies of information in the
warrant application were such that the breach of A's rights in searching
his home on the basis of an invalid warrant could not be classed as
minor. (68 paras) NB: Publication restrictions.

EVIDENCE In R v PIO [2019] NZCA 634 per Wild, Whata and Katz JJ (11/12/2019) the
- PROPENSITY Crown appealed unsuccessfully from a pre-trial ruling declining to admit
- INDECENT ACT ON 8 in P's trial for doing an indecent act on an 8 year old female relative,
YEAR OLD propensity evidence (a 2013 conviction for doing an indecent act on a 14
- EARLIER CONVICTION year old girl - P a bus driver at the time and girl a passenger),
RE 14 YEAR OLD Evidence Act 2006, s 43. The CA agreed the differences in the offending
- ASSUMPTION CHILD were significant and undermined the probative value. The significance of
SEX OFFENDERS the age difference was discussed and research challenging the judicial
DISCRIMINATE assumption that child sex offenders do not discriminate between
BETWEEN pre-pubescent and pubescent victims. Admission would be unfair and
PRE-PUBESCENT AND prejudicial. (25 paras) NB: Publication restrictions
- PUBESCENT VICTIMS

FINANCIAL SERVICE In FXBTG FINANCIAL LTD v FINANCIAL MARKETS AUTHORITY [2019] NZHC 2775
PROVIDERS per Cooke J (30/10/2019) FXBTG unsuccessfully appealed deregistration by
(REGISTRATION AND the FMA under the Financial Service Providers (Registration and Dispute
DISPUTE RESOLUTION) Resolution) Act 2008, s 18B. FXBTG provided general financial advisory
- DEREGISTRATION services and an online foreign currency exchange to customers in China
UPHELD and the HC held that this was the classic situation the provisions were
- NOTIONAL ENGAGEMENT enacted to address. Although FXBTG technically engages in financial
IN FINANCIAL services it is only in an entirely notional way (single employee on a
SERVICES computer in an Auckland apartment) and, on that basis, it has
represented it is regulated under NZ securities law (a misleading
impression). (62 paras

IMMIGRATION In CHAI v R [2019] NZCA 628 per Collins, Brewer and Gendall JJ
- FALSE AND (4/12/2019) C, a Malaysian national re-entering the country (earlier
MISLEADING visitor visa permits having expired) after changing his name by deed
INFORMATION poll and obtaining a new passport and eventually obtaining permanent
- EXPIRY OF VISITOR'S residency, had been found guilty by a jury on six of 23 charges (found
PERMIT not guilty of all charges of not disclosing his name had been changed by
- CHANGING NAME BY deed poll), Immigration Act 2009, s 142. The CA has allowed C's appeal
DEED POLL OBTAINING from two convictions (producing a work visa but related to a different
NEW PASSPORT AND visa), but upheld the remaining convictions. The appeal ground that the
LATER, RESIDENCY jury was put under undue time pressure (majority verdict), was rejected.
- JURY NOT PUT UNDER A misdirection on a jury question had led to the Crown conceding the two
UNDUE PRESSURE charges (which are set aside) were unsafe. Refusal to grant a discharge
without conviction was upheld. Six months' home detention (now expired)
was substituted for 7 months home detention. (71 paras)

IMMIGRATION In E (CA746/2017) v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION

- REFUGEE STATUS AND EMPLOYMENT [2019] NZCA 658 per Miller, Clifford and Courtenay JJ
- THIRD APPLICATION (18/12/2019) the CA allowed E's appeal from the HC decision [2017] NZHC
3175, 41 TCL 3/6, which dismissed E's application for judicial review of
an RPO's refusal to consider E's third application for refugee status
(the RPO refused to alter an interview date when E could not attend then
- Immigration Act 2009, s 140(3)). The CA reviewed the circumstances and
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decisions at all levels on E's three applications for refugee status and
found that s 140 of the 2009 Act took a wider view of second or
subsequent applications for refugee status than its predecessor s 129J
of the 1987 Act (the word "circumstances" was no longer qualified by the
phase "in the claimant's home country" or the word "personal", and the
phrase "to such an extent that the further claim is based on
significantly different grounds" was not repeated in any form; E's first
application was under s 129J, his second under both and his third under
s 140 alone). The expansion of s 140(1) encompassed not only "sur place"
claims but also claims founded upon fresh evidence, such as E's. That
expansion was necessary for NZ to fulfil its international obligations.
"Applicants who, in the first instance, fail to demonstrate a
well-founded fear would otherwise be prevented from subsequently
presenting clear and compelling evidence proving the substance of their
earlier claim: bona fide refugees would thereby be at risk of
refoulement. While there is an obvious need to prevent applicants from
simply repeating near-identical claims in order to delay the inevitable,
s 140(3) adequately guards against that possibility" (effect of changed
evidence on fact-finding noted). The HC erred in concluding that E's
third claim failed because E's new evidence did not reflect a change in
circumstances "on the ground". On the relationship between s 140(1) and
(3), the CA said that it was difficult to state the difference
precisely, but it "preferred" the formulation in BD (India) [2016] NZHC
1762, 39 TCL 34/5, to that in the "Immigration Law Review: Discussion
Paper" at [1192]. Since the new evidence corroborated that E had been
tortured as he had said reassessment of the evidence as a whole may
reasonably result in concluding that he had a valid claim to refugee
status. His claim was remitted to an RPO for reconsideration. (85 paras)

LAWYERS AND In MAINS v CHURCHMAN [2019] NZHC 3064 per Lester AJ (22/11/2019) the HC
CONVEYANCERS refused summary judgment to enforce an undertaking by C (a licensed
- CONVEYANCER conveyancer) to retain a sum in her trust account until the local
- DISCIPLINE authority gave a certificate of acceptance of an unconsented retaining
- UNDERTAKING wall and (if consent was required) work to a drive above the wall. The
- JURISDICTION HC held that (1) it was not,"[f]or present purposes", satisfied that
there was jurisdiction to enforce a licensed conveyancer's undertaking
(absence of authority supporting such jurisdiction, terms of Lawyers and
Conveyancers (Conveyancers: Conduct and Client Care) Rules 2008, r 7(1),
and Stewart v LCRO [2016] NZHC 916, [2016] NZAR 900, 39 TCL 20/6,
noted), and (2) it had not been shown that the conditions contained in
C's undertaking had been met. (53 paras)

LAWYERS AND In SHAND v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 3105 per Palmer J
CONVEYANCERS (27/11/2019), where S (Law practitioner) has applied for judicial review
- DISCIPLINE of the LCRO and Standards Committee decisions on a complaint by C, but C
- PROCEDURE is taking no part in the proceedings and the LCRO and SC are,
- NO CONTRADICTOR conventionally, abiding the HC's order, the HC has ruled on the
- NZ LAW SOCIETY appropriate general role of NZLS to be the contradictor, and its status.
- GENERAL ROLE, The HC held that it was helpful and appropriate that the NZLS should
STATUS take up the role of contradictor. Procedurally, where there is no
- JUDICIAL REVIEW contradictor in a professional discipline appeal or judicial review, the
NZLS should file and serve on the practitioner and complainant a
memorandum on its willingness to act as contradictor. Its status would
be as counsel assisting the Court. A decision on NZLS's role could be
made at the first case management conference. It was unlikely that a
conflict of interest in the NZLS would arise, but, as a matter of
course, it should be available for the practitioner and complainant to
object to the NZLS role on the basis of a perceived conflict of
interest. NZLS was appointed as counsel assisting the HC in this case.
(16 paras)

NZ BILL OF RIGHTS In AHUJA v POLICE [2019] NZCA 643 per Gilbert, Dobson and Whata JJ
- RIGHT TO CONSULT (13/12/2019) A's breath alcohol conviction was set aside and an
LAWYER acquittal entered. The HC, [2019] NZHC 2010, 42 TCL 37/6, had rejected
- REASONABLE A's appeal that the evidential breath test result should be excluded due
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FACILITATION to breach of his right to consult a lawyer of choice, NZ Bill of Rights

- LAND TRANSPORT Act 1990, s 23(1)(b). The CA discussed the concept of reasonable
- BREATH ALCOHOL facilitation (the HC having found that allowing A to call his brother 3
or 4 times to attempt to contact his preferred lawyer, was reasonable).
The CA held that it was wrong here for the constable, prior to
commencement of the 10 minute period, to remove A's cell phone and
insist he could only exercise his right by speaking with the same duty
lawyer he had already spoken too. It was for A to decide who he wished
to consult. The evidence was improperly obtained for Evidence Act 2006,
s 30 purposes, there being a causal connection between admissibility of
the result and the exercise of the right to consult. The CA found no
effective remedy other than exclusion and an acquittal was directed.
(38 paras)

PROCEDURE In STOCKMAN v NZ ASSOCIATION OF COUNSELLORS INC (STAY) [2019] NZHC 3047

- PLEADING per Cooke J (21/11/2019) S, in the same proceeding, had both applied for
DEFICIENCIES judicial review of the treatment by NZAC of his complaint about a
- STAY REFUSED relationship counsellor and sued in tort (including for misfeasance of
- PRAGMATIC public office). NZAC applied unsuccessfully for a stay of the
DIRECTIONS MADE proceeding, arguing that the statement of claim was prolix (177 paras)
- JUDICIAL REVIEW and so badly pleaded that it was unreasonable to expect NZAC to respond
- TORT to it. The HC held that the proceeding had been commenced in 2017 and
not progressed, so there was little advantage in staying it now (the HC
had offered an opportunity for S to replead, but it had not been taken
up). S was entitled to have his claims assessed on the merits provided
the Rules have been complied with adequately. The HC found that there
had been adequate compliance with the rules for the judicial review and
related causes of action. They were directed to be set down for hearing.
Although NZAC had applied for a stay, its arguments were really for
striking out. The HC therefore (1) summarised the requirements for the
causes of action, (2) held that repleading would simply stretch out the
process, and (3) directed a timetable for filing a strike-out
application, filing a notice of opposition and for the strike out to be
heard at the same time as the judicial review and related causes of
action. (50 paras)

PROCEDURE PRIMARY SERVICES NEW ZEALAND LTD v FONAGY [2019] NZHC 3050 per Paulsen
- PROTEST TO AJ (21/11/2019) is confirmation that the jurisdictional basis for
JURISDICTION directing service in the Cook Islands of an application for a freezing
- SERVICE OF FREEZING order on OTL who was not party to the substantive proceedings was HCR r
ORDER APPLICATION 6.30. There was no basis under r 5.49 for the HC to entertain an
ON NON-PARTY OF appearance protesting jurisdiction from OTL and rr 6.27 and 6.28 had no
SUBSTANTIVE CLAIM application (Commissioner of Police v Vincent [2012] NZHC 2581 not
IN COOK ISLANDS followed). (58 paras)

RESIDENTIAL TENANCIES In WANT v PARBHU [2019] NZCA 674 per Kós P, Miller and Brown JJ
- ILLEGAL CONTRACT (19/12/2019) the CA dismissed W (tenant)'s appeal from the HC judgment
- RESOURCE MANAGEMENT [2018] NZHC 2079, 41 TCL 35/8, which allowed P(landlord)'s appeal from
- TENANCY IN BREEACH the DC judgment upholding the Tenancy Tribunal's decision that, since
OF CONSENT the tenancy agreement between P and W was in breach of the resource
- EFFECT ON TENANCY consent for the building, the tenancy agreement was unlawful and P
- ANDERSON V FM should refund to W all the rent and bond money she had paid on the
CUSTODIANS tenancy. The CA noted that the Residential Tenancies Act 1986 had been
OVERRULED amended to reflect the [2018] NZHC 2079 judgment, so that the CA's
judgment was no longer of general public significance. In accepting that
the judgment appealed from was correct, the CA made five points. The
text of the Act supported the approach in [2018] NZHC 2079 and went
against Anderson v FM Custodians [2013] NZHC 2423, 15 NZCPR 123, 36 TCL
39/6, which had been followed as binding on the TT and DC (the list of
exceptions in s 5(1) was intended to be exhaustive). FM Custodians was
contrary to the purpose of the Act. The scheme of the Act appeared to
embrace tenancy agreements that departed from strict regulatory
requirements rather than sending them to the DC (ss 36 and 45 noted as
examples of this). Section 137 did not support making agreements illegal

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for regulatory breaches (it was directed at contracting out of the Act -
as [2018] NZHC 2079 had held). (37 paras)

SECURITIES In HOUGHTON v SAUNDERS [2019] NZSC 148 per Glazebrook, O'Regan and
- INTERLOCUTORY Williams JJ (13/12/2019) the SC refused leave to appeal from two
DECISION interlocutory decisions in these proceedings involving a representative
- LEAVE REFUSED TO claim by investors for losses said to have been sustained as a result of
APPEAL untrue statements in an offer document for the IPO of Feltex shares. The
- FELTEX LITIGATION decisions concerned relate to the stage 2 trial - the first in which the
CA, [2019] NZCA 506, upheld the HC decision ruling inadmissible certain
expert evidence H wished to adduce as to the quantum of loss suffered by
investors, and the second where the CA, [2019] NZCA 404, upheld HC
refusal to strike out the respondents' defence relying on the Securities
Act 1978, s 63. (21 paras)

SENIOR COURTS In SIEMER v NZ LAW SOCIETY [2019] NZHC 3075 per Palmer J (25/11/2019)
- CIVIL RESTRAINT the HC confirmed that the HC has jurisdiction to rule on the effect of a
ORDER vexatious litigant order (Judicature Act 1908, S 88B) holding that (1)
- JUDICATURE it was to be treated as having originated under Senior Courts Act 2016,
- VEXATIOUS LITIGANT s 166 (Siemer v MoJ [2018] NZHC 646, 41 TCL 15/7, adopted) and (2) it
ORDER was therefore to be treated as a finite order (Rafiq [2019] NZHC 1193,
- EFFECT 42 TCL 229, adopted). It was consistent with NZBORA, s 27(2) that the
- JURISDICTION TO duration of a s166 civil restraint order should be no more than
AMEND reasonably necessary to achieve its object (Brogden [2001] NZAR 809
(CA), 24 TCL 28/4). The application of the above holdings to S has been
timetabled for a further hearing. (33 paras)

SENTENCING In JESEN v R [2019] NZCA 581 per Courtney, Mallon and Moore JJ
- PREVENTIVE (11/12/2019) J, who pleaded guilty to sexual offending over a 17 year
DETENTION period against 5 members of his extended family (J commencing offending
- SEXUAL OFFENDING when he was a young teenager), appealed successfully from the sentence
AGAINST FAMILY of preventive detention imposed on him. The CA noted a jurisdictional
MEMBERS COMMENCING issue not brought to the sentencer's attention of J being under 18 for
WHEN A YOUNG the first part of the offending, and held that it followed he was not
TEENAGER eligible for preventive detention for the early offending. Assessing the
likelihood of J offending in the future to justify preventive detention,
the CA found a risk of offending against young girls in a spontaneous
and opportunistic way regardless of his relationship with them; and a
more significant risk of sexually offending against adult women with
whom he is in a relationship. On the second part of the inquiry, whether
rehabilitation could reduce that risk to an acceptable level, the CA
found that J is beginning to accept responsibility for his offending and
noted the availability of other protective mechanism such as ESOs. 17
years imprisonment was substituted with an MPI of 8 and a half years.
(76 paras) NB: Publication restrictions

SENTENCING In SINGH v R [2019] NZCA 627 per Wild, Whata and Katz JJ (9/12/2019) the
- RAPE CA reduced sentences imposed on BS and HS for the rape of same
- DISCOUNT FOR complainant of 8 years 4 months and 8 years 6 months by 6 and 5 months
FOREIGN NATIONAL respectively to give a greater discount for personal circumstances: BS's
STATUS relative youth (20 years at the time) and to reflect both appellants'
foreign national status and the disproportionate effect a lengthy
sentence would have on them (Zhang v R 2019] NZCA 507, 42 TCL 41/1).
(15 paras)

SOCIAL SECURITY In LARKIN v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 3085 per Clark
- ATTENDANT CARE J (26/11/2019) L had suffered brain damage at his birth in 1992. An ACC
- BACKDATING claim was made in 2005 and on 2/3/2011 the DC found that his brain
- TRANSITIONAL damage was caused by a delay in deciding on a caesarean birth. Attendant
PROVISIONS care was provided from 16/11/2011. Compensation for attendant care was
agreed by ACC back to commencement of the AC Act 2001 (so limited by s
83(3) unless transitional provisions ss 374 and 376 applied). The HC has
dismissed L's appeal from the DC decision that upheld ACC's refusal to
backdate compensation further to 1/7/1993 (commencement of the ARCIC Act
1992 - ARCIC Act 1992, s 149 - as the 1992 Act transitional s 149 did
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not apply to L). The HC rejected the argument that the distinction in
ARCICA, s 149(1) and (3) (persons entitled to compensation and persons
in receipt of compensation) was a legislative oversight and should be
interpreted to include L by inserting "should have / or was entitled to
receive" (Campbell (CA) 27 TCL 13/2, Bosman [2007] NZCA 482, 30 TCL
44/2, NZGT v Pora [2007] NZAR 1 (CA), 29 TCL 48/6, applied; INCO Europe
[2000] 2 All WR 109 (HL) discussed). L's problem lay in the 2001 Act
providing transitional rights in respect of the 1972 and 1982 Acts but
not the 1992 and 1998 Acts, the latter two of which were based on an
insurance concept of ACC not a compensatory one. (40 paras)

TREATY OF WAITANGI In NGĀTI TE ATA v MINISTER FOR WAITANGI TREATY NEGOTIATIONS [2019] NZCA
- SETTLEMENT 580 per Clifford, Courtney and Wild JJ (19/12/2019) the CA dismissed
- INTERPRETATION, NTA's appeal from the HC judgment [2017] NZHC 2058 which had held that
BREACH the MoWTS's decision to vest certain land, to which NTA had a right of
- IMPLIED TERMS first refusal under the Ngā Mana Whenua o Tāmaki Makaurau Collective
- JUDICIAL REVIEW Redress Act 2014, should be vested in another iwi (NT) under s 120 the
- JUSTICIABILITY 2014 Act, was "in a judicial review sense and on the basis challenged"
- UNREASONABLENESS lawful. On the first argument before the HC (that s 120 was only a
"notice" provision and did not authorise removal of NTA's right of first
refusal), NTA's oral submissions argued a different point, ie, that the
MoWTS's action "constituted his self-appointment as arbiter of competing
mana whenua claims for which [there was] no power" in the 2014 Act. The
CA first agreed with the HC that no disposal of land under the 2014 Act
was involved (disposal occurred separately when, pursuant to a Treaty
settlement, land was vested in NT). The CA referred to and outlined a
possible argument that had not been made, but expressly gave no views on
its strength. On the second argument (that the MoWTS had not "acted in
good faith and reasonably"), the CA again agreed with the HC that he had
not acted "unreasonably". It also agreed with the HC that in judicial
review of claimed breaches of the Treaty of Waitangi there was room for
heightened scrutiny giving "greater significance" to mana whenua rights
based on tikanga (the HC had said at [71] that "operation of s 120 was
not intended to facilitate breach of the Crown's duties under the Treaty
to other iwi and hapū with genuine tikanga based interest in land in
dispute"). In this respect, the CA made particular note of support for
its position in Ngāti Whātua Ōrākei [2018] NZSC 84, [2019] 1 NZLR 116,
42 TCL 11/7, at [64], [69] and [92]. It is important to note that the
HC's holding that NTA's claim was justiciable, ie, that "it was properly
subject to judicial review", was neither challenged before nor commented
on by the CA. (43 paras)

WEATHERPROOF HOMES In AUCKLAND COUNCIL v BODY CORPORATE 202692 [2019] NZCA 635 per Cooper
RESOLUTION SERVICES and Collins JJ (11/12/2019), proceedings involving a leaky building
- EFFECTS BEYOND complex, the CA refused the Council and engineer leave to appeal from
WATER PENETRATION the HC decision, [2019] NZHC 1976, 42 TCL 42/9) dismissing their
- LIMITATION applications to strike out certain claims against them. The CA accepted
- BUILDING the proposed appeal raised important issues - the extent, if any, to
- LEAVE TO APPEAL which s 37 of the Weatherproof Homes Resolution Services Act 2006
REFUSED impacts on the limitation provisions of the Building Act 2004 and the
extent to which the SC decision in Lee v Whangarei District Council
[2016] NZSC 173, 39 TCL 30/10, applies, however, leave should not be
granted to appeal the decision before trial as there are important
unresolved factual issues. (17 paras)

WILLS In RE TUCKER (DEC) [2019] NZHC 2928 per Doogue J (8/11/2019) the HC
- VOID FOR UNCERTAIN declared void for lack of certainty, a codicil to a will making it a
- CODICIL MAKING GIFT condition of the gift to the grandchildren of excluding any living in a
CONDITIONAL ON de facto, civil, union, gay or lesbian, lifestyle (Re Lichtenstein
SPECIFIED LIFESTYLE [1986] 2 NZLR 392 (HC) applied). (27 paras)

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CHANGE TO ONLINE The Capital Letter has been sold to Freeman Media Ltd. The new ownership
FORMAT takes effect from 1 February 2020. Publisher Matt Freeman says that
exciting plans for the publication include a move to an online format
and subtle expansion of the editorial scope. Freeman Media is based in
Wellington and employs 19 staff. www.freemanmedia.co.nz. Any early
feedback or suggestions for the revamp are very welcome. Please email
[email protected]

CHILDREN'S Children's Commissioner Andrew Becroft has released statistics showing

COMMISSIONER there are persistent and intergenerational inequities in the removal of
- REMOVAL OF PEPI pēpi Māori into State custody. The data also shows assessments and
MAORI INTO STATE removals of pēpi Māori are happening earlier. There is an increasing
CUSTODY trend towards making decisions before birth to take babies into custody
- STATISTICS after they have been born, and this trend is greater for Māori than
non-Māori. The statistics have been published alongside some information
resources to help people understand what happens when reports of care
and protection concerns for 0-3-month-olds are made to Oranga Tamariki.
The resources have been developed as part of a review currently underway
into what needs to change to allow pēpi Māori aged 0-3 months to remain
in the care of their whānau when Oranga Tamariki have been notified of
care and protection concerns. The first substantive report arising from
the Office's review will be published in March and will include whānau
voices, a literature review, and further care and protection data. This
report will also identify high level areas for change that will be
explored further in a second report. This second report will include
detailed recommendations and is likely to be published later in 2020.
(Children's Commissioner, media statement, 16/1/2020.)

DISTRICT COURT Twenty-one new District Court judges have been appointed in a move that
- JUDGE APPOINTMENTS will improve access to justice and boost diversity on the bench. The new
judges include replacements for retirements and 10 new positions. Ten of
the new judges are Māori, eight Pākehā, one Māori/Chinese, two Samoan,
and twelve are women. Once the new judges are sworn in, the number of
District Court judges will increase from the current 155 to 172. The 14
judges who can immediately be named, with the remainder to be announced
later this year, are Turitea Bolstad, barrister of New Plymouth, to be
based in Gisborne; Michelle Duggan, of Nelson, to be based in
Christchurch; Hana Ellis, Barrister of Auckland,to be based in
Whangārei; Tony Greig, barrister of Rangiora, to be based in New
Plymouth; Nicola Grimes, barrister and solicitor of Nelson, to be
based in Hamilton; Quentin Hix, barrister and solicitor of Timaru,
to be based in Christchurch; Michelle Howard-Sager, barrister and
solicitor of Whanganui to be based in Kaikohe; Gordon Matenga,
coroner of Hamilton, to be based in Hastings; Alison McLeod,
barrister and solicitor of Havelock North, to be based in
Invercargill; Bruce Northwood, barrister and solicitor of Auckland,
to be based in Palmerston North; Rachel Paul, barrister and
solicitor of Ohope to be based in Hamilton; Brandt Shortland, a
coroner for Te Tai Tokerau with iwi affiliations to Ngāti Hine - Te
Orewai, Ngāpuhi, Ngāi Te Rangi and Ngāti Ranginui, to be based in
Kaikohe; Kiriana Tan, barrister of Hamilton, to be based in
Manukau; and Robyn von Keisenberg, barrister of Auckland, to be
based in Auckland. (Attorney-General David Parker, media statement,
21/1/2020.)

ECONOMIC DEVELOPMENT The new Creative and Cultural Events Incubator, which is funded through
- MAJOR EVENTS FUND the Major Events Fund, will open on 1/3/2020. "Creative and cultural
- CREATIVE AND events have historically received less support under the Major Events
CULTURAL EVENTS Fund than sporting events ... The Incubator will give priority to events
- NEW INCUBATOR that celebrate our culture and diversity, and have a vision to be major
events of international significance ... Up to $1.5 million is available
through to June 2022 for creative and cultural events that meet the
criteria and, in particular, events with a focus on Māori and Pasifika
arts and culture." Investment criteria are available on the Major Events

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website. (Economic Development Minister Phil Twyford, media release,

22/1/2020.)

ELECTORAL The Justice Committee's report Inquiry into the 2017 General Election
- INQUIRY INTO 2017 and 2016 Local Elections (1.7A, December 2019, see 48 TCL 48/1) includes
GENERAL ELECTION a chapter on foreign interference in NZ elections. Its discussion on
AND 2016 LOCAL "how to protect New Zealand's democracy from inappropriate foreign
ELECTIONS interference", includes the hacking of computer systems, the spread of
- FOREIGN disinformation, social media, election advertising, political donations,
INTERFERENCE the vetting of electoral candidates, foreign lobbying and disaspora
communities. Evidence was received by the committee from the NZ Security
Intelligence Service (NZSIS) and Government Communications Security
Bureau (GCSB) that "interference in New Zealand's elections by a state
actor was, and remains, plausible". The report notes that the risk of
hacking makes online and electronic voting systems unsafe and the GSCB
"made it very clear that it has ongoing concerns about the security
implications of proposals to pilot or introduce online voting for local
body elections." The committee recommends retention of manual or
paper-based voting systems in local and general elections for the
foreseeable future It also recommends an offence to prohibit hacking
into computer systems owned by Parliament, local authorities, the
Electoral Commission, election service providers, election officers,
political parties, candidates, or members of Parliament with the aim of
intending to affect the results of an election. In relation to
disinformation ("fake news") targeting voters, the committee gives
approval to a recent inquiry by a select committee of the UK Parliament
(14/2/2019) that made recommendations including creating an independent
regulator with statutory powers to monitor relevant technology companies
and ensure that they comply with a compulsory Code of Ethics. Foreign
donations are extensively discussed; an Electoral Amendment Bill banning
donations over $50 from persons was introduced and passed through all
stages, 42 TCL 47/14, before the release of the committee's report. In a
section headed media pluralism, the committee notes that media
regulation has not kept up with the rise of the internet and we "were
pleased to learn that the Government is reviewing the regulation of
media content across all platforms". National members "are cautious and
concerned at Government plans to extend regulation of the media [and
about] reports of the Government creating a new unit within the Ministry
of Justice to monitor and manage public debate on the upcoming 2020
referendum ... some overseas jurisdictions have used the issue of fake
news and hate speech to shut down legitimate criticism of government."

HEALTH The Government has announced details of changes to Funded Family Care,
- FUNDED FAMILY CARE including an annual average pay boost of $2,246.40 for funded family
- REFORM PACKAGE carers. Pay rates for family carers will be lifted from the minimum wage
to $20.50-$25.50 per hour from 14/4/2020 with the higher rates for
qualified family carers; eligibility for the scheme will be expanded to
include spouses and parents of young children with high or very-high
needs; and the requirement for an employment relationship between
family members where families don't want it will be removed. Part 4A of
the New Zealand Public Health and Disability Act 2000, which currently
prevents New Zealanders from taking claims on the basis of unlawful
discrimination to the Human Rights Commission or before the courts will
be repealed. (Associate Minister of Health Jenny Salesai, media release,
19/1/2020.)

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The House is in recess and will resume on 11/2/2020.

SELECT COMMITTEES As at 27/1/2020, there remained time for submissions to be made on the
- BILL SUBMISSION following bills before select committees: Public Service Legislation,
DATES Sexual Violence Legislation, 31/1/2020, Films, Videos, and Publications
Classification (Commercial Video On-demand) Amendment, 5/2/2020,
International Crimes and International Criminal Court Amendment, Land
Transport (Rail) Legislation, Land Transport (NZTA) Legislation
Amendment, 7/2/2020, Racing Industry, 11/2/2020, Asia Pacific Economic
Co-operation (APEC 2021), Protection for First Responders and Prison
Officers, 12/2/2020, Education and Training, Holidays (Bereavement Leave
for Miscarriage) Amendment (No 2), Urban Development, 14/2/2020,
Secondary Legislation, Taumata Arowai - the Water Services Regulator,
4/3/2020, and Infrastructure Funding Financing, 5/3/2020.

GENERAL REVIEW (CONTINUED)

MAORI DEVELOPMENT Government's second s 81 of the Treaty of Waitangi Act 1975 report on
- S 81 REPORT ON Waitangi Tribunal claim progress highlights the importance of emerging
WAITANGI TRIBUNAL contemporary claims as well as historic claims. As an example of the
CLAIM PROGRESS shift towards contemporary and kaupapa (thematic) Treaty claims, the
'Hauora: The Report on Stage One of the Health Services and Outcomes
Kaupapa Inquiry' (Wai 2575), 42 TCL 28/10, was one of two reports
released in 2019. "In September, the Prime Minister announced that New
Zealand history will be taught in all schools and kura by 2022, which
will include Te Tiriti o Waitangi, the New Zealand Wars and our full
history. This commitment recognises there is a need to rectify omissions
in our historical discourse that have affected how we see ourselves as a
nation. Contemporary kaupapa inquiries on Māori military veterans, the
Takutai Moana Act and Mana Wāhine, are underway. (Minister for Māori
Development Hon Nanaia Mahuta, media release, 18/12/2019.)

NZ STANDARDS APPROVAL Vicki Lee Corke (Vicki Lee), of Greytown, has been appointed as a member
BOARD of the New Zealand Standards Approval Board, for a term commencing on
- APPOINTMENT 24/1/2020 and expiring on 23/1/2023. (NZ Gazette, 17/1/2020.)

TE TAURA WHIRI I TE Wayne Panapa has been reappointed as a member of the Board of Te Taura
REO MĀORI Whiri i te Reo Māori for three years from 29/11/2019. (NZ Gazette,
- BOARD REAPPOINTMENT 23/1/2020.)

WHANAU ORA Funding in Whānau Ora is to be boosted by an extra three million dollars
- FUNDING INCREASE that will go directly to Whānau Ora Commissioning Agencies. Including
previous funding boosts, the Agencies will now receive $87 million this
year between them. "Whānau Ora supports families to achieve their
aspirations. It places whānau at the centre of decision-making and helps
them to build a more prosperous future through navigational support and
the provision of services including home repairs, financial planning,
educational opportunities and health support, just to name a few." In
2018 an independent review found that, as an approach, Whānau Ora works.
It also identified increasing demand for Whānau Ora and suggested
exploring other commissioning options - specifically local commissioning
in the North Island. This would mean funding community organisations
directly to invest in whānau and support them to achieve their
aspirations. (Minister for Whānau Ora Peeni Henare, media release,
23/1/2020.)

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