Friday, 17 December 2010
Thursday, 16 December 2010
Thursday, 25 November 2010
Friday, 12 November 2010
This was an admiralty case in which the defendant sought a stay of the case because there was a better forum, being the courts of Australia, and where it was argued, the Australian law applied to the contract. Justice Gendall observed 2 things which may be important for choice of courts, that the Australian litigation would cost more than New Zealand litigation, and that the growth of videoconferencing means the arguments about the location of witnesses to support a change of court, may not have the same weight any more. He declined the stay enabling the plaintiff to continue in the New Zealand High Court.
As an aside, this means it will be in the Nelson Registry, which when I last attended had a very friendly refrigerator with beer and wine left for the lawyers on an honesty system. That alone, if it still exists, must be a compelling reason for keeping the forum as the Nelson High Court, although I suspect Justice Gendall may not have factored this in.
It is a while since I argued the decision in Air Nauru v Niue Airlines Ltd -  2 NZLR 632, where these issue were argued in the context of liquidation proceedings, which effectively trumped the exclusive jurisdiction clause in the contract.
Sunday, 7 November 2010
Friday, 5 November 2010
Tuesday, 2 November 2010
And as a supplement, Proposition 19 did not pass, so we will not know if this would have worked.
From the LA Times
|Proposition - 19 - Legalize Marijuana - Ballot Issue|
|California - 24845 of 24845 Precincts Reporting - 100%|
Thursday, 28 October 2010
Wednesday, 27 October 2010
Friday, 22 October 2010
Wednesday, 20 October 2010
Monday, 18 October 2010
We need to understand that a chunk of our prison population is there because they have education problems of differing degrees, including illiteracy, dyslexia, and even deafness preventing them from understanding what they were taught. So the solution is to punish them by placing them in groups with similar problems, in a place where they don't get much chance to repair their shortcomings. At least we do not execute them or chop off hands, but sometimes I think execution would be preferable for me rather than being locked up for 20 years. Chris Kahui was acquitted, but the profile he presents is similar to many who fall through the education cracks into jail.
Friday, 15 October 2010
"Pleading under the new Rules Committee members have found the prescribed forms that stand in for pleadings under the new system to be very much worse than the old system. The forms are long, repetitious, and difficult to fill out. They do not match each point of the claim with the reply by the defence and so make it harder to identify what is actually in issue. Compared to the exchange of pleadings from previous practice, the forms are slower, and more cumbersome to prepare. They fail to define the core issues in dispute. The additional complication increases expense."
I think the form preparation was captured by Justice staff without any practical experience. What ever was wrong with statements of claim and defence? The issue was not the forms but the gaming, and these new forms must confuse the majority. I could design better forms in a few hours work, although they didn't ask me....
Seriously, there are real problems with the levels of complication. The Disputes Tribunal forms on the other hand are simple and easy to use, and I am increasingly impressed with the rapid and fair approach of this part of the system They are not bogged down with the forms and complex procedure, but just get on with the job. I think Judge Peter Spiller has done a great job of moving the Tribunal into the 21st century, but the new District Court Rules take us back to Jarndyce v Jarndyce.
Thursday, 14 October 2010
Friday, 27 August 2010
Monday, 9 August 2010
Friday, 30 July 2010
Thursday, 22 July 2010
Thursday, 15 July 2010
Tuesday, 13 July 2010
"A last word
 Any reader with the fortitude to have reached this point of an already overly long judgment will inevitably come to the view that it would be naïve in the extreme to urge that this judgment not be appealed, in light of the amounts at stake and the tensions in the relationship between the parties. Nonetheless, I take the unusual step of recording my view that the issues this judgment leaves the parties to grapple with ought to be resolved by negotiation between them, and not by further litigation. I venture that view not as a Judge apprehensive that the Court of Appeal might arrive
at a different view on any of the material issues. Rather, I do so as a New Zealander concerned that the resource vested in these parties by virtue of the permit they have from the Crown deserves to be managed without the significant inefficiency caused by the distraction of this dispute.
 There was general consensus among the expert economists that a GBA is, in all rational evaluations, inevitable. Professor Richardson agrees with that. Even on Todd‘s view of the dispute, flexibility of off-take has substantial value and after the very thorough airing all Todd‘s arguments have had, the prospects of securing any basis for disproportionate off-take without enforceable arrangements to redress the physical and/or financial consequences of doing so are surely negligible.
 This is a significant business relationship that needs a thorough breath of fresh air. That is possible in the context of renewed attempts to agree a GBA but seemingly impossible whilst the competing positions advanced in the litigation continue to be pursued."
The judge must have also had his gas bills balloon to help pay for this litigation as well. The Plaintiff lost but the judge says, with some sadness that they will appeal. The end result will not help anyone save the top end legal teams, who are no doubt booking their luxury holidays on the payment of fees and checking out their new cars. In the meantime many ordinary New Zealanders turn down the heat because the costs of the gas has risen well beyond the rate of inflation.
Tuesday, 1 June 2010
Sunday, 23 May 2010
Thursday, 20 May 2010
Tuesday, 18 May 2010
Monday, 17 May 2010
Saturday, 15 May 2010
Wednesday, 12 May 2010
"I don't think the death penalty is a deterrent. I think that to argue that having certain kinds of laws or certain kinds of penalties will automatically cause people to comply doesn't work, based on my experience."
He said a blunt analysis could show crime was reduced by such schemes because locking up criminals meant they were not on the streets. "But at what costs? My concern always is that sometimes it's looked at as a simple solution and we no longer have to make the effort to rehabilitate - we just lock people up."
Once again this demonstrates the lack of real evidence behind many law reform suggestions. I hope Parliament does work harder on this issue-it has already fallen foul on Bill of Rights criteria.
Monday, 10 May 2010
Friday, 7 May 2010
Thursday, 6 May 2010
I have added to this a decision of the Court of appeal decision in Garnett v R CA CA187/2009 7 May 2010 where he was part of the panel. His humane approach was fortunate indeed for Ms Garnett, who was spared jail to instead substitute home detention.
Wednesday, 5 May 2010
Wednesday, 28 April 2010
Tuesday, 27 April 2010
I have previously commented on the Law Commission and the report on sale of liquor. Apparently the long awaited report is due any day now and will make sweeping recommendations about the great wave of liquor which is washing over the country, destroying all in its way. Or so many of the submitters will be saying. Apart from my serious reservations about jurisdiction, that a law reform organisation is writing about social policy, well outside of its purpose and function, I am wondering how much real empirical evidence will be provided to back up the statements. After the Legal Aid Review which attacked Manukau legal aid lawyers with no real evidence, I expect better from an organisation which recently completed a review of the law of evidence. I am confident that I will be disappointed. I will acknowledge this here if I am wrong but the leaks to date give me some fear that I am right.
Friday, 23 April 2010
The recent decision in the case of Newmarket Trustees Limited v The Commissioner of Inland Revenue 14 April 2010 Associate Judge Faire Auckland High Court CIV-2009 -404-8108 is a timely warning of the difficulties which can be faced by a corporate trustee which administers family trusts. Newmarket Trustees Limited is a bare corporate trustee of the clients of a firm of corporate lawyers in Auckland. The company was a trustee of a family trust for one of the clients. Their client was responsible for preparing his own tax returns, but of course the corporate trustee assumed liabilities on behalf of the trust including tax. The client defaulted in his tax obligations, and the Commissioner served a statutory demand on the corporate trustee. The corporate trustee made an application to set aside the statutory demand, and this decision explains why the application was rejected. Although the deed establishing the trust contained a clause seeking indemnity, counsel for the Commissioner cited well-established principles of trustee law which are worth setting out in full taken from Foundation Custodians Ltd v Morton HC Auckland CIV-2009-404-3112, 2 November 2009 at .
A trustee is personally liable for all debts incurred in the conduct of a trust, and the personal assets of the trustee are available to meet the liabilities of the trust.
b) A trustee will normally have indemnity in the first instance from the assets of the trust in respect of liability in a trust transaction: Trustee Act 1956, s 38.
c) Trustees may avoid personal liability for the debts of the trust under a contract with a third party if their liability is expressly limited to the assets of the trust and their personal liability is expressly excluded by the terms of the contract. The need for an express provision in the contract arises because there is a presumption in favour of personal liability: NZHB Holdings Ltd v Bartells at  per Baragwanath J.
d) Whether the personal liability of a trustee has been excluded will depend on the language of the particular contract. In NZHB Holdings the following language, quoted at  and , was sufficient to exclude liability for an independent trustee but not for anyone else:
Persons, except independent trustees, who sign this document shall at all times remain personally liable for all obligations of the persons on whose behalf they have signed. An independent trustee is a person who is not a settler of the trust or has no rights to an interest in or assets of the trust except as a trustee of the trust.
The problem of course for the corporate trustee, was that they were the trustee for many other trusts, including other family trusts which owned property, shares and other interests. The judge was critical of a lack of evidence of the client's affairs and of any enquiry as to whether the clients trust had any money. The potential immense inconvenience was stressed by counsel. But, the application was refused because of the above principles which are well established law. The judge did allow a further period of time for the corporate trustee to negotiate with the Commissioner. Reading between the lines, one senses a frustration by the Commissioner as to a lack of information provided. Obviously liquidation of the corporate trustee would provide nothing for the Commissioner, and cause enormous inconvenience for the corporate law firm. But it may make them actively pursue their client, which may have been the object of the Commissioner. The decision, from the senior associate judge, must carry considerable weight but cause a frisson of fear among professional trustees. They should be taking a more active involvement in their clients affairs, and ensure that the Commissioner is kept informed.
Tuesday, 20 April 2010
Saturday, 17 April 2010
Friday, 16 April 2010
Monday, 12 April 2010
Saturday, 10 April 2010
Thursday, 8 April 2010
Wednesday, 7 April 2010
I think Tom Scott got it right in the Dominion cartoon today
Friday, 2 April 2010
- The litigation
- If, like many trade and professional associations, the BCA was not incorporated but consisted simply of the totality of its members, neither individually nor collectively would they have had standing to sue. Some corporations – municipal ones, for example - also lack standing to sue in defamation. The BCA is not subject to either of these disadvantages. If the present claim is well founded in law, the BCA is entitled to pursue it. Moreover, as the law presently stands, it was entitled, for its own reasons, to reject the opportunity fairly offered to it by the Guardian to take issue with and refute the criticisms expressed by Dr Singh and to demonstrate the fallacy of his opinions. Instead the BCA sued Dr Singh, but not the Guardian, for libel.
- It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation.
- By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. Again, if that is where the current law of defamation takes us, we must apply it.
- However this may be, we consider that the judge erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA's claims as an assertion of fact. It was in our judgment a statement of opinion, and one backed by reasons.
- We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):
- In an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition) in relation to the defence of fair comment, which is said to be a "bulwark of free speech", that "…the law here is dogged by misleading terminology… 'Comment' or 'honest comment' or 'honest opinion' would be a better name, but the traditional terminology is so well established in England that it is adhered to here".
- We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities.
- This appeal must be allowed.
"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."
Thursday, 1 April 2010
Science, News - The Independent
Tuesday, 30 March 2010
Saturday, 27 March 2010
Book Review - Texas Tough - The Rise of America’s Prison Empire - By Robert Perkinson - Review - NYTimes.com
Thursday, 25 March 2010
Thursday, 18 March 2010
Wednesday, 17 March 2010
Tuesday, 16 March 2010
This says it all. Why do we take on the hard cases? Read this article.
Wednesday, 10 February 2010
This is just a quick note about this recent decision. It is not about the merits or the law, but praise for the sensitivity with which Chief Judge Colgan dealt with a difficult case, where Mr Lewis was unwell and did not handle his case very well at first instance. In particular. He said “Whether as a consequence of indemnifiers’ caution or for other reasons, both cases illustrate the potential for dealings between parties to teaching employment relationships to become prematurely and unduly legalistic. In this case, although perhaps for understandable reasons because of what was perceived to have been Mr Lewis’s intimidatory and manipulative dealings with his employer’s representatives, the Board’s lawyer assumed personally and almost from the outset, the conduct of the process that led to Mr Lewis’s dismissal. Whilst, for reasons set out in this judgment, that did not ensure compliance by the Board of its obligations towards its employee, my concern is that it deprived those with expertise in education from even having a substantial advisory involvement.” And further “The other feature on which I wish to comment generally concerns how schools may address circumstances such as Mr Lewis’s to avoid the unfortunate consequences for all illustrated in this case. Although I am not aware whether such arrangements were in place in this case, its unfortunate circumstances may illustrate a need for teachers, principals and boards of trustees, with the assistance of their professional organisations, to consider putting in place collegial support systems for increasingly isolated teachers in circumstances such as Mr Lewis’s. Although I imagine that the professional teacher unions do so for their members, not all teachers have access to the member welfare services provided by the PPTA or the NZEI. It would probably not be unusual if teachers in the circumstances of Mr Lewis resigned from such organisations in any event so that the desirability of independent assistance is apparent. Although there are, no doubt, a number of models that might be considered and adapted, the scheme providing for welfare officers in the Police and the Friends’ Panel amongst lawyers are two with which this Court is familiar. I commend consideration of such a scheme by the New Zealand School Trustees’ Association, the teacher unions and the relevant school principals’ organisations.”
In other words, lawyers can get in the way of resolving disputes which should be solved by non legal tools.
Friday, 15 January 2010
Creditors Schemes are not used as much as they should. A careful and structured realisation of assets will always produce more for creditors than the well meaning and helpful, but hopelessly underfunded Official Assignee. I have written an update for schemes which is regrettably not online but is to be found in the New Zealand Law Journal “Insolvency Schemes under the New Insolvency Act” at 2009 [NZLJ] 47. This post is not however a link to the Law Journal, excellent publication that it is, but rather a comment on the recent attacks on Alan Duff, the New Zealand writer, who in making the conclusion that he could not make a living on publishing novels in New Zealand, decided to enter into property development. Alas, the ability to craft prose and the ability to craft money are not synonymous, and his venture failed. He then undertook a scheme of arrangement optimistically basing this on the sale of future novels he intended to write and publish. Not all his creditors agreed, and a finance company represented by John Weymouth, and Auckland lawyer, took exception to his proposal. Notwithstanding this, the High Court eventually approved the scheme and Alan Duff set off energetically to write his novels. He has managed to produce 2 so far with another on the way. While his productivity is to be commended, the novels have not been well received, and he concedes that too much haste may be an issue. What then stirred up trouble was that he joined a golf club. This enraged the finance company (or John Weymouth, I am unsure which), and they now want to cancel the scheme. The failure of the books to sell at bestselling speed may also mean the creditors will not receive dividends. Perhaps the story of the scheme would have made a better story than the novels-it certainly has drama, a courtroom battle and vivid characters!