Zealand Courts Research Articles

To whom will ye liken Me, And make Me equal? Reformulating the Role of the Comparator in the Identification of Discrimination

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts' approach to the formulation of comparator groups admits a lack of a clear methodology. The author argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of non-discrimination provisions and offending against the proper construction of s 19. Of particular concern is the involvement of matters of justification at the comparator stage. The judgments of the High Court and Court of Appeal in B v Chief Executive of the Ministry of Social Development and G B as Executor of the Estate of B of Whangarei v the Chief Executive of the Ministry of Social Development respectively are emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group Inc v Attorney-General have provided some guidance, but have not gone far enough. The author recommends that the courts defer to the claimant's choice of comparator, and decouple the identification of differential treatment from questions of causation.

Are data protection laws sufficient for privacy intrusions? The case in Hong Kong

An area of concern which relates to privacy intrusions in Hong Kong is the substantial changes that have taken place in recent years in relation to news gathering and reporting and the activities of local paparazzi. The issue that needs to be addressed is how intrusions of privacy can be protected in Hong Kong. The most significant reform to date has been the enactment of the Personal Data (Privacy) Ordinance which provides rules for the fair handling of information about living individuals. However, the Ordinance is concerned only with data protection and does not provide a general privacy right. This article demonstrates the inadequacies of existing legislation for general privacy protection and examines the possibility of developing a separate action for general privacy via a) an action of extended breach of confidence as demonstrated by the UK model and b) a sui generis cause of action as can be seen in the New Zealand courts.

Fitness to Stand Trial in New Zealand: Different Factors Associated with Fitness to Stand Trial Between Mentally Disordered and Intellectually Disabled Defendants in the New Zealand Criminal Justice System

Individuals on trial for an offence are expected to contribute to their own defence via liaison with their defence team and be able to participate meaningfully in the court process. Defendants who are unable to do so are deemed unfit to stand trial. The factors associated with fitness to stand trial within the New Zealand criminal justice system have not been closely examined. This study compared sociodemographic, offence-related, clinical and court-related factors associated with fitness to stand trial for 200 mentally disordered and intellectually disabled (ID) defendants assessed for the New Zealand Courts. The study found generic sociodemographic, offence-related and clinical factors were not significantly associated with fitness to stand trial. By contrast, court-related factors such as previous assessment of fitness to stand trial and previous finding of unfitness, and clinical factors such as previous diagnosis of ID and low cognitive functioning were significantly associated with unfitness to stand trial. Court liaison nurses' concerns about the defendant's ability to communicate and comprehend appeared to be reliable indicators of unfitness, suggesting that this may be a useful initial screen of eligibility before more formal assessment of competency and intelligence.

There is ‘hope for you yet’: The female drug offender in sentencing discourse

Language and gender research has, in recent years, emphasised the importance of examining the context-specific ways in which people ‘do gender’ in different situations. In this paper, we explore how women involved in drug offences, specifically methamphetamine manufacture offences, are constructed within the language of the courts. Thirty-six sentencing transcripts from the New Zealand courts were examined to investigate how such offences, committed by women, are understood. In order to explore the representation of female offenders, a critical discourse analytic approach was adopted. Such an approach recognises that linguistic modes not only create and legitimise power inequalities but also embody a specific worldview. Three gendered discourses were identified in the sentencing texts: (i) the discourse of femininity, reinforcing the socially prescribed female role; (ii) the discourse of aberration, concerning women who breach traditional gender role expectations and, (iii) the discourse of salvation, presenting aberrant women with an opportunity to become ‘good’ women once again. The findings illustrate the ways in which processes of gendering take place within a specific community of practice: the courtroom.

Compensating for Loss in Equity: The Evolution of a Remedy

Equitable compensation, founded in the inherent jurisdiction of equity, is becoming a more regularly awarded remedy in New Zealand courts. This paper examines the features of this remedy, first by a comparison between it and the statutory remedy of equitable damages, and secondly by a comparison between it and the common law remedy of compensatory damages in tort law. The panoply of remedies available in equity has traditionally been thought to reflect a fundamental eschewal by that jurisdiction of any whole-hearted embrace of the notion of compensation for loss. However, this is now changing rather rapidly, particularly in New Zealand. The time is opportune, therefore, for an examination of the developments and for an assessment of some of the issues arising. In seeking to do this, the paper adopts the following structure. The first section outlines the development of both equitable compensation and equitable damages, revealing that although both appear to be equitable remedies founded on the principle of compensating for loss, there are nevertheless essential differences between them. The second section examines matters relating to the scope of operation of equitable compensation. The third section takes up a major focus of present judicial and academic attention in the area, the relationship between equitable compensation and compensation in tort law. This focus has arisen as courts grapple (largely in cases dealing with claims in equity for breach of fiduciary duty and breach of confidence, where the circumstances often sustain claims in negligence or deceit as well) with the process of bringing the remedy of equitable compensation to an acceptable level of maturity. It is perhaps a trite observation that there is under way in New Zealand's law of civil obligations a movement towards increased remedial flexibility. Equitable compensation has a place in this development, but in order to be a trusted and effective remedy its parameters need to be more clearly understood.

How Much Use Should Amount to 'Genuine Use' of a Trade Mark?

A registered trade mark must be put to to ensure its survival on the trade marks Register. Just how much use, and what quality of use, will be sufficient to constitute genuine use has been a longstanding issue in trade mark law. For example, should the sale of two saris or eleven jackets, or even the sale of a single trademarked item over a three year period be sufficient to constitute genuine use? Under previous legislation it has been asserted that there was no de minimis standard of use. The key inquiry to determining bona fide use was whether the trade mark owner’s use was a pretense. This article contends that it is undesirable to transpose the same approach to the question of under the Trade Marks Act 2002. It is argued that a global approach that incorporates an objective assessment of the quality of the use is preferable and should be adopted by New Zealand courts and adjudicators.

Establishing an indigenous right to property through the ICCPR: can Awas-Tingni assist?

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.

Port State Jurisdiction in New Zealand: The Problem with Sellers

This article discusses the decision of the New Zealand Court of Appeal in Sellers v Maritime Safety Inspector [1999] 2 NZLR 44. It is not critical of the Court's approach to the use of international law in domestic courts, but instead argues that the decision represents an incorrect view of international law regarding a port state's jurisdiction over visiting foreign vessels. It argues that the Court was wrong to characterise New Zealand's maritime safety agency's use of s 21 of the Maritime Transport Act 1994 as an attempt to regulate such vessels on an extraterritorial basis, and that port states do possess the jurisdiction to introduce unilateral measures of the kind promoted by the agency in that case. The article argues that the decision in Sellers is exercising a negative impact over New Zealand's maritime regulatory efforts and that Parliament should address the issue by way of amending legislation.

Vicarious Liability and the Employment Rationale

This article argues that the employment relationship should remain the underpinning rationale for vicarious liability. The article draws a distinction between cases where liability is imposed because the defendant is an employer, and those where liability is based on agency. Other non-employment vicarious liability cases are distinguished using liability for breach of non-delegable duties. The article also considers English cases where vicarious liability has been extended to relationships with similar characteristics to employment, and argues that this approach should be preferred to the New Zealand Court of Appeal's approach in S v Attorney-General. At the end of the article there is a discussion of the relationship between exemplary damages and vicarious liability. It is argued that, although exemplary damages may be inappropriate in vicarious liability cases, they should be available for breach of a non-delegable duty. Such an approach may better explain some of the decided vicarious liability cases.

"Frustration" in the Court of Appeal

This article discusses the decision of the New Zealand Court of Appeal in Planet Kids Ltd v Auckland Council [2012] NZCA 562, [2013] 1 NZLR 485. The Court upheld the Council's argument that its contract with the appellants had been frustrated, and therefore it was released from the obligation to render the performance it had promised, notwithstanding that it had achieved in substance everything that it set out to achieve at the time of the contract. The author argues that the case was wrongly decided.

The State of Play of Tax Avoidance – The Decision in Alesco and the Commissioner’s Interpretation Statement

In March 2013, the New Zealand Court of Appeal delivered its unanimous decision in the appeal by Alesco New Zealand Ltd v. Commissioner of Inland Revenue (Alesco), finding that the arrangement was tax avoidance. On 13 June 2013, the Commissioner of Inland Revenue (Commissioner) issued an interpretation statement on the application of the New Zealand general anti-avoidance rule (GAAR). This document relies heavily on the much criticized Parliamentary contemplation test. This article reviews the key findings from the Alesco decision before critically examining the approach that the Commissioner intends to take with respect to invoking the GAAR as outlined in the interpretation statement.

Counterintuitive Expert Psychological Evidence in Child Sexual Abuse Trials in New Zealand

The Evidence Act 2006 came into law in New Zealand in 2007. Among the many reforms was an amendment to the law pertaining to expert opinion evidence. In keeping with other jurisdictions, New Zealand adopted the “substantial helpfulness” test in relation to the admissibility of expert evidence. Since 2008, the courts have regularly admitted what has been termed “counterintuitive” expert psychological evidence in child sexual abuse trials, and appellate courts have upheld the use of this evidence. Such evidence has the purpose of educating juries, with particular reference to commonly held misconceptions about child sexual abuse. We discuss what is meant by the term counterintuitive evidence, why such evidence has been deemed helpful and the types of counterintuitive evidence currently given by psychologist expert witnesses in the New Zealand courts.

CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

Civil litigation negligence now stands on a surer footingfollowing cases from Canada, England and elsewhere which lay emphasis on theadversarial system rather than the structure of the profession, and immunityhas now been almost completely abolished by judicial decisions. In Malaysia,the basis of legal professional liability is expected to be re-aligned to beconsistent with the other common law countries that have abolished immunity.The questions that necessitate consideration are therefore acts that wouldconstitute negligence and those that are excusable, the relevant defences, and,of course, the alternative sanctions to civil litigation for this type ofnegligence. The fused nature of the profession in Malaysia, perceived to bemore burdensome to its members, raises the question of the appropriate standardof the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to theMalaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession,engages in litigation or ‘contentious business’ as defined in s. 3 of the LegalProfession Act 1976.) {The writer is of the firm view that criminal casesshould be considered separately from civil cases because of the difference inthe law of procedure relating to the preparation of a case for presentation incourt and the public policy considerations peculiar to each type of case asseen in the approach taken by the House of Lords in Arthur J.S. Hall vSimons in which separate judgments were delivered for each type of case.And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in whichthe New Zealand Court of Appeal did not consider the position in criminalcases.}

'Frustration' in the Court of Appeal

This article discusses the decision of the New Zealand Court of Appeal in Planet Kids Ltd v Auckland Council [2012] NZCA 562; [2013] 1 NZLR 485. The Court upheld the Council’s argument that its contract with the appellants had been frustrated, and therefore it was released from the obligation to render the performance it had promised, notwithstanding that it had achieved in substance everything that it set out to achieve at the time of the contract. The author argues that the case was wrongly decided.

Fitness to Plead – Best Interests Versus Autonomy: Does a Defendant's Paranoia Matter?

In the Solicitor-General v Dougherty [2012] NZCA 405 the New Zealand Court of Appeal has reviewed the relevance of a “best interests” component in determining unfitness to stand trial. The respondent, convicted on multiple counts of Goods and Services Tax (GST) fraud, had developed a delusion that he was being persecuted by the Inland Revenue Department, leading the trial judge to conclude that he could not, for that reason, give adequate instructions to his lawyers. He was found unfit to stand trial. On an appeal by way of case stated, the Court of Appeal characterized the legal issue as being whether “decisional competence” was part of the fitness assessment. In deciding that it was not, the Court affirmed existing law represented in R v Power CA187/96, 22 October 1996, to the effect that a high threshold of fitness, including a “best interests” component, would derogate from the fundamental principle that accused persons are entitled to choose their defences and present them as they choose. It concluded that there was no statutory support for a change in relation to decisional competence in New Zealand, and did not consider the Courts should implement one.

CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

Civil litigation negligence now stands on a surer footing following cases from Canada, England and elsewhere which lay emphasis on the adversarial system rather than the structure of the profession, and immunity has now been almost completely abolished by judicial decisions. In Malaysia, the basis of legal professional liability is expected to be re-aligned to be consistent with the other common law countries that have abolished immunity. The questions that necessitate consideration are therefore acts that would constitute negligence and those that are excusable, the relevant defences, and, of course, the alternative sanctions to civil litigation for this type of negligence. The fused nature of the profession in Malaysia, perceived to be more burdensome to its members, raises the question of the appropriate standard of the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to the Malaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession, engages in litigation or ‘contentious business’ as defined in s. 3 of the Legal Profession Act 1976.) {The writer is of the firm view that criminal cases should be considered separately from civil cases because of the difference in the law of procedure relating to the preparation of a case for presentation in court and the public policy considerations peculiar to each type of case as seen in the approach taken by the House of Lords in Arthur J.S. Hall v Simons in which separate judgments were delivered for each type of case. And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in which the New Zealand Court of Appeal did not consider the position in criminal cases.}

Systemic operational risk: smoke and mirrors

Christmas 2009 did not bring much festive cheer to the shareholders of Australia's largest banks. On December 23, the so-called four pillars announced simultaneously that their subsidiaries in New Zealand had settled with the New Zealand Inland Revenue Department (IRD) in respect of long-running litigation that resulted in payments of unpaid tax and interest totaling some NZ$2.2 billion. The settlement followed a finding in October 2009, in the High Court of New Zealand, in favor of the local tax authorities regarding a series of "structured finance transactions", which the IRD claimed were specifically designed to avoid paying tax in New Zealand. The transactions in dispute, which numbered only around thirty across the four banks, were, at face value, highly complex and intricate, but, when stripped of the "smoke and mirrors" were little more than standard commercial loans. The profitability, or otherwise, of these disputed transactions depended very much on how profits, losses and tax were accounted for. Because of various tax treaties between New Zealand and Australia, the Australian parents of New Zealand banks are able, under certain circumstances, to offset operating losses against profits being repatriated from New Zealand. This, in effect, could turn a loss-making transaction into a powerful device for shielding profits from tax. The Inland Revenue argued that this tax benefit was, in fact, the "tax tail that wagged the commercial dog" in such transactions. New Zealand courts at various levels agreed with this interpretation and unanimously found that the banks concerned were using these transactions to avoid paying tax. This paper argues that the losses to the Australian banks incurred as a result of the New Zealand tax scandal were, for the most part, a result of systemic operational risk, and, in particular, legal risk. Using examples from published court cases, the paper identifies some of the legal risk that arose using these transactions. The paper then suggests proactive approaches to systemic risk management that should help detect and minimize the impact of similar scandals in future.

Questioning Child Witnesses in New Zealand's Criminal Justice System: Is Cross-Examination Fair?

The way in which children are questioned in forensic contexts can impact on the accuracy of their responses. Past studies have shown that children were often questioned in the New Zealand courts in ways that profoundly contradict best practice. This study analyses the questions posed to 18 child witnesses by forensic interviewers, prosecutors, and defence lawyers during criminal trials held in New Zealand courts in 2008. The results suggest that, as was found in earlier studies, many of the questions posed to children during cross-examination in particular were inconsistent with best practice in terms of eliciting full and accurate information from children. Indeed, the heavy reliance on closed, leading and complex questions, along with other common practices, casts doubt on the forensic safety of cross-examination, calling into question its fairness for children. The implications of these results for policy and practice are explored.

The Precautionary Principle in the New Zealand Fisheries Act: Challenges in the New Zealand Court of Appeal

The New Zealand Fisheries Act 1996 was enacted with the express purpose of protecting the marine environment. Notably, it incorporates the concept of precaution. In 2002-2004 NZ courts decided three cases on the section that incorporates precaution. All these cases struck down decisions where the Minister of Fisheries purported to rely on precaution to support measures protecting marine mammals from the effects of commercial fishing activities.This paper considers the 2004 Court of Appeal decision and assesses its implication for the use of the precautionary principle. The paper first outlines the precautionary principle in international law, and then in New Zealand law. It next describes its incorporation in the Fisheries Act, before focusing on the Court of Appeal decision. The paper concludes with observations that the section incorporating precaution is effectively being used contrary to its intended purpose. This suggests lessons for anyone considering statutory incorporation of the precautionary principle for purposes of environmental protection and is relevant to the regulation of the commercial use of any natural resources.This paper was first written in 2005, presented as a conference paper in 2006, and is the basis for another paper (work in progress) on developments in this area 2010-2012.

Child Witnesses' Access to Alternative Modes of Testifying in New Zealand

In 1990, New Zealand became the first common law country to introduce a comprehensive legislative package of reforms for child witnesses, including provision for children to testify via alternative modes, namely, admitting video-recorded forensic interviews as the child's evidence-in-chief and testifying at trial via closed-circuit television (CCTV) or screened from the accused. Since the 1990s, there has been no empirical research examining child witnesses' access to these modes in New Zealand courts. The purpose of this article is to fill that gap by examining children's access to alternative modes of giving evidence and determining how many applications are contested by the defence. Attention then turns to the issues surrounding the impact of alternative modes on perceptions of children's testimony, before considering whether New Zealand might introduce a statutory presumption in favour of CCTV and pre-recorded testimony in the interests of enhancing children's ability to provide best evidence and improving efficiency in trial processes.