LawNews- Issue 35

NEWS Oct 7, 2022 Issue 35

Inside ■ FREE SPEECH

In defence of the right to offend P05

■ CYBERSECURITY

Major class action looms in Oz P10-11

Why Fitzgerald is such a

adls.org.nz

SIGNIFICANT CASE

Contents 03-04 DISPROPORTIONATE DISCRETION BORA

Will Fitzgerald spawn more three-strike appeals?

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

05 DEBATE DEMOCRACY CANCEL CULTURE

Democracy is debate: free speech and the right to offend

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

06-07 TRUSTS ABUSE TRAUMA

The expanding scope of fiduciary duty

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

12-13 FEATURED CPD

14 Photo: Andreas Berheide / EyeEm / Getty Images

CPD IN BRIEF

16-17 EVENTS

Build your brand and grow your legal practice by writing for LawNews!

We welcome opinion pieces and other contributions for publication in our weekly magazine.

Please contact the editor to discuss: Jenni.McManus@adls.org.nz

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

To subscribe, please email reception@adls.org.nz. ©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members.

Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: BrianAJackson / Getty Images

02

Oct 7, 2022 Issue 35

CRIMINAL LAW

The ongoing implications of Fitzgerald and the three-strikes law The decisive point for the compensation question was whether a prosecutor who could anticipate a grossly disproportionate sentence had a discretion or a duty to adjust the charge to avoid it. The court held it was a duty

Roderick Mulgan & Samira Taghavi

Roderick Mulgan

The possibility exists that others who have already been sentenced can now bring appeals

Arguably the most famous person sentenced under the “three strikes law”, Clinton Fitzgerald, went to jail for a sevenyear stretch after kissing a woman in the street.

His sentence has been overturned by the Supreme Court after four-and-a-half years were served and the High Court has now awarded him compensation of $450,000. Central to both decisions was whether and where, in the prosecution process for such offending, the prohibition against disproportionate punishments in s 9 of the Bill of Rights (BORA) should be applied.

Since it was first passed in 2010, s 86D of the Sentencing Act 2002, often referred to as the “three strikes law”, has been an intensely political provision, trumpeted by conservative forces and loathed by their left-wing opponents. New Zealand First prevented the last Labour government from repealing it, but the current administration, with its one-party majority, has just removed it from the statute books.

“Three strikes” provided that the maximum sentence had to be applied, without judicial discretion, on the third conviction for a qualifying offence. For those who disagreed with it, the Fitzgerald case summed up what was always liable to happen – a sentence grossly disproportionate to the offence.

The offence charged, indecent assault, was at the lowest end of the scale and Fitzgerald was a schizophrenic with substance abuse issues. Nevertheless, he was sentenced to seven years because the sentencing judge did not consider there was a choice.

The Court of Appeal held that the sentence was manifestly unjust and, in particular, breached s 9 of the BORA. It also noted s 9, unlike many rights, could not be subject to limitation. However, a majority also held the sentence could

not be disturbed.

The Supreme Court took a very different view. It ruled that the provision did indeed have to be read in light of s 9. It was substantially guided to this conclusion by the Hansard record of how senior politicians had represented that a three-strikes prosecution would work. Repeated speeches identified the worst criminal offenders as the targets of the provision and assured the House that the discretion of prosecutors in laying charges would ensure that the wrong offenders were not caught by it.

In keeping with this, a process was approved by Cabinet to refer all charges that would trigger a three-strikes sentence to a Crown solicitor, with the necessary implication that whether such a sentence would be proportionate would be a central consideration.

The Supreme Court held this was the primary way that those who designed the system intended grossly disproportionate sentences to be avoided. Although, in the court’s view, the sentencing judge could still apply s 9 to avoid a disproportionate outcome, the preferred and intended route was that no judge would have to do so. The Supreme Court remitted the sentence back to the High Court which imposed six months. Fitzgerald subsequently sought compensation for the excessive time he was incarcerated.

Fitzgerald is the only beneficiary of the ruling to date and as the provision is no longer in force it will not assist any sentencing judges of the future. However, the possibility exists that others who have already been sentenced can now bring appeals. Of wider application is the new duty on prosecutors generally to consider s 9 when charges are laid.

Every judge in the chain held that s 9 had been breached; as Young J in the Supreme Court found, a breach arose both because the sentence was far too long on its face, but also because it did not allow for Fitzgerald’s mental illness. The question is where the breach should have been remedied.

The issue on appeal was whether s 9 bit on s 86D and the Supreme Court agreed it did. The issue for compensation was whether any burden to consider s 9 outcomes lay upon the prosecutor.

As the Supreme Court has now found, if s 9 could always have been applied by the judge, an obligation on the

Continued on page 04 03

Continued from page 03

Samira Taghavi

Of wider application is the new duty on prosecutors generally to consider s 9 when charges are laid

04

prosecutor to consider it when charging appears to dissolve.

However, in considering compensation the High Court approached the question as the law was believed to be at the time the charges were laid: a maximum sentence on conviction without wriggle room.

The prosecutor had had the option, and was encouraged by defence counsel, to lay the charge as ‘doing an indecent act’, or even ‘common assault’, which would not have triggered a three-strikes sentence. A similar thing has been done with other defendants for the same reason. At issue with compensation was whether she was obliged to so do.

The courts are traditionally reluctant to inquire into prosecutorial decisions. The trial gives the court its opportunity to determine the merits of charges and little cause usually arises to look into the decisions that preceded them. This can be contrasted with duties, like that of disclosure, where compliance is routinely enforced. However, if prosecutors have a duty – rather than a discretion – to engage with s 9, then the justification for judicial intervention is much stronger.

Similar considerations have arisen overseas, with prosecutions of defendants who had offended in exceptional circumstances.

In R v LM [2010] EWCA Crim 2327, women in England who had been trafficked and forced into prostitution were convicted of offences they claimed they were forced to commit. On appeal they pointed to rules governing prosecution that specifically considered the situation of trafficking victims.

The appellate court noted that while the usual function of a court is to try the charges before it, not the process by which they were laid, it could still decide whether defendants have received safeguards in the process to which they were entitled.

A similar position was taken by the court in R v Director of Public Prosecutions [2011] EWHC 1465 (admin), which stayed the prosecution of a child groomed by an adult to sexually assault other children. Of decisive weight was the Crown prosecutor’s failure to follow official guidelines.

The High Court went on to observe the courts in New Zealand cannot apply Supreme Law to strike down statutes that throw up grossly disproportionate results, in contrast to many other jurisdictions. This increases the burden on other parts of the system to see such results coming in the distance and adjust for them.

The decisive point for the compensation question was whether a prosecutor who could anticipate a grossly disproportionate sentence had a discretion or a duty to adjust the charge to avoid it. The court held it was a duty.

The court rejected attempts by the Crown to argue wellknown principles of causation. The prosecutor knew and intended the maximum sentence would result from conviction.

No chain of causation issue arose. It also rejected a claim that Fitzgerald was adequately compensated by being ultimately vindicated.

The court noted there was no basis to claim false imprisonment – the sentence had been lawful when it was

imposed – or malice or misfeasance. The prosecutor made an honest mistake, not a bad-faith one. The only ground was BORA damages. Although article 9(5) of the International Covenant on Civil and Political Rights provides an “enforceable right” to compensation in comparable circumstances, BORA damages remain discretionary and little guidance exists.

The Cabinet Guidelines (also discretionary) apply a base rate of $150,000 per year for wrongful conviction and imprisonment, but Fitzgerald was not wrongfully convicted. However, an excessive sentence could be argued to impose parallel harm to one imposed for wrongful conviction.

Ultimately, the court was assisted by the Prisoners’ and Victims’ Claims Act 2005 and its emphasis in s 3(1) on compensation where necessary for “effective redress”. Fitzgerald had exercised every opportunity to challenge his detention (and therefore bore no responsibility for it); the Crown had made an error, albeit a good-faith one, that caused the detention; and the consequences to Fitzgerald were substantial, both in terms of excess time served and his vulnerability due to his mental illness.

To provide effective redress, and deter future breaches, compensation was necessary. By reference to the Cabinet Guidelines, and comparable cases, $450,000 was awarded.

It remains to be seen whether any historic three-strike sentences might now be revisited. Anecdotally, it seems likely that others in similar positions benefitted from enlightened charging decisions, which the Supreme Court ruled was always the intention. The lasting reach of this decision is likely to be the enforceable duty on prosecutors to consider s 9 of the BORA and arguably any other provisions of it.

The authors have personally dealt on occasion with s 77(1) and (2) of the Land Transport Act 1998 which provides that breath and blood results of a defendant’s alcohol levels are “conclusively presumed” to reflect the level present when a car was last driven. This means that defendants tested hours after they got home, surrounded by empty bottles (as one of my clients was), cannot bring evidence that their drinking was post driving.

The conclusive presumption was enacted to close down the “hip flask” defence, where drivers who had crashed claimed they had a swig from one just before the police arrived and that their alcohol result should not ground a conviction. In practice, the presumption means that people with evidence of factual innocence cannot offer it.

The author’s experience is that at least some prosecutors are alive to the injustice of this and do not proceed. If a conviction in the face of factual innocence constitutes “disproportionate treatment”, as per s 9, or a breach of natural justice, as per s 27, choosing to proceed in this situation could in future be argued to be a breach of an enforceable duty.

Criminal lawyers can therefore thank Clinton Fitzgerald and may perhaps anticipate a new sanity with some prosecutorial decisions. ■ Roderick Mulgan is a criminal defence lawyer and medical doctor with a particular interest in medico-legal issues.

Samira Taghavi is an Auckland barrister ■

Oct 7, 2022 Issue 35

FREEDOM OF SPEECH

‘Democracy is about debate’: UK Lord Chancellor defends the right to cause offence Brandon Lewis, the UK’s newly appointed Lord Chancellor and Secretary of State for Justice, has waded into the ‘hate speech’ debate by telling The Daily Mail he will defend the right to cause offence and press ahead with legal reforms to protect people’s freedom of speech.

He also expressed concern that the growing cancel culture was infringing on free speech. And ministers will be looking at whether reforms are needed to prevent the piecemeal development of privacy laws by the courts.

On the right to cause offence, Lewis said: “Nobody wants to offend anybody but you also have to have an environment where the risk is always there. People

because of debate. That debate means need to be able to have the freedom having that opportunity to say what to say what they genuinely believe and you believe, to make a case for it, to make a case for what they believe in. argue for it,” he said.

“Otherwise how do we move society “We all have a duty to be aware forward? How do things evolve if you’re that what we say matters. So be aware not challenging? that when we speak, we are talking to “We need to do everything we can people and that will have an impact. We to protect freedom of speech, even Brandon Lewis need to be free to have that debate.” when it can be really, really annoying.”

Lewis said he wasn’t talking in the The Lord Chancellor’s interview with context of terrorists inciting hatred, which the UK the newspaper covered similar ground to a speech he always needed the ability to deal with. gave at a conference earlier this month when he said “But we do need to make sure that people in people couldn’t be allowed to claim their human rights everyday life and in public life can have their debates were being infringed because they disagreed with freely, and have those debates openly and properly.” ■ somebody.

“Democracy is about debate. Democracy happens

Photo: Leon Neal / Staff / Getty Images

Jenni McManus

ADLS Retirement Dinner for Arthur Young Thursday 20 October | 6pm - 10pm The Northern Club, Auckland CBD Dress Code

Business attire

Registration

For more information and to register, please click here or email events@adls.org.nz

05

TRUST LAW

The Court of Appeal divides 2:1 on creating a new fiduciary duty

Anthony Grant

Lord Denning once said he never went to bed thinking he had ruled in a way that offended his conscience. To ensure a peaceful night’s sleep, he would always find a way to make a ruling he thought was fair, no matter what device was necessary to secure that outcome

Anthony Grant

In some circumstances, the inherently fiduciary relationship between a parent and a child may continue 06

Whether a fiduciary duty exists and if so, the extent of it, are two questions that are becoming more important as the courts expand the scope of fiduciary accountability.

The growth in this area of the law was the subject of a recent paper by Kós P. Speaking extra-judicially, he said: “The types and forms of private relationships recognised as fiduciary are likely to grow as equity faces up to a changing New Zealand. The types of relationships recognised as fiduciary may also grow.”

He instanced the case of A v D [2019] NZHC 992 as an illustration of a potential expansion of the law concerning fiduciary relationships.

That case has since gone to the Court of Appeal. Kós P sat on the appeal but decided not to create a new fiduciary duty in which it would be declared that a parent owes fiduciary duties to adult children who have left home and who live independently. The case is reported as D & E Limited v A, B & C [2022] NZCA 430.

Before I discuss the facts of the case, I will refer to Kós P’s interest in this area of the law. Amongst other things, he delivered an address in 2018 entitled Aristotle & all that: finding the foundations of fiduciary law and a follow-up paper in 2021 entitled: This may seem hard: temporal and personal perspectives on fiduciary law. He also delivered the Court of Appeal’s decision on fiduciary duties in Dold v Murphy [2020] NZCA 313 which dealt with the question of whether shareholders should owe fiduciary duties to each other.

The expansion of fiduciary obligations is only one of the ways the laws relating to trusts are likely to change. In a 2019 paper entitled A short history of the trust, Kós P suggested tikanga Māori concepts “would increasingly influence equity in New Zealand, even in relation to trusts involving non-Māori”.

I give this background as I consider we are fortunate to have a judge in our highest court who takes such a personal interest in the academic origins of equity and fiduciary law.

I refer now to the facts in the Court of Appeal’s recent decision.

The case concerned a father who seriously maltreated his three children. The worst treatment was meted out to his daughter whom he repeatedly raped throughout much of her childhood and who has, for all practical purposes, been destroyed for life.

The three Court of Appeal judges accepted that parents owe fiduciary obligations to their children while they live at home in their youth but two of the judges (Gilbert J and Kós P) said the duty ends when the children leave home.

Thirty years after the children had left home, during which there had been no communication with their father, he decided to complete his rejection of them by disposing of all his assets so they couldn’t make a monetary claim against his estate after he died.

This is how Collins J described the daughter’s current plight:

Continued on page 07

Oct 7, 2022 Issue 35

Occasionally, she has been forced to live in her car

Continued from page 06 “[She] “has struggled to find accommodation…. Occasionally, she has been forced to live in her car. She has had no fixed abode or permanent work. …. [she] said she continues to live in poverty and that she suffers from poor health associated with post-traumatic stress disorder.”

The judge went on to say: “In some circumstances, the inherently fiduciary relationship between a parent and a child may continue after the child becomes an adult. For example, it could not be disputed that a severely disabled child who is dependent upon their parents for care and support as a child may continue to be the beneficiary of an inherently fiduciary relationship after the child becomes an adult.” [79] He held that the daughter “was entitled to expect [the father] to atone for his abuse and to provide her with the economic and emotional support that she needed to live a normal and independent life, including by providing for [the daughter] in his will.” [96] Gilbert J and Kós P disagreed. The three children have accordingly been given nothing and despite her poverty, the daughter and her two brothers have been ordered to pay the

costs of the trustees who shelter the assets that the father settled on them.

Lord Denning once said he never went to bed thinking he had ruled in a way that offended his conscience. To ensure a peaceful night’s sleep, he would always find a way to make a ruling he thought was fair, no matter what device was necessary to secure that outcome.

The case of D v G was obviously a difficult decision. Three traumatised children left home when they could and 30 years passed with no communication with their father. At that point, there was still no communication but the father arranged to cut them off completely.

I suspect that notwithstanding the novelty of the proposed fiduciary duty and its inherent complexities, many people would side with Collins J. Following Lord Denning’s principle of judicial decision– making, I think I would, and as time goes by it would not surprise me if the courts agreed that a father should have an ongoing fiduciary obligation to an adult child whose life he has brutally and comprehensively destroyed. ■ Anthony Grant is an Auckland barrister specialising in trusts and estates ■

Immigration & Refugee Law Dinner Wednesday 2 November | 6pm - 9:30pm The Northern Club, Auckland CBD Dress Code

Business attire

Registration

For more information and to register, please click here or email events@adls.org.nz

07

Briefs The Crown Solicitor in Tauranga is seeking applications for the following positions: - Experienced Senior/Intermediate Crown Prosecutors; and - Junior Crown Prosecutors.

The opportunities available with the Crown Solicitor’s firm, Pollett Legal are vast and unique in providing for those who have a strong desire for advocacy and seek a career in all aspects of criminal litigation.

Tauranga, and surrounding regions, have grown beyond measure over past years and offer all the hallmarks to create a balanced lifestyle in one of the most beautiful parts of Aotearoa.

The Crown Solicitor and her team pride themselves on excellence in the conduct of Crown prosecutions in the Eastern and Western Bay of Plenty.

The firm also provides legal services to the New Zealand Police and other government departments and agencies.

A core value for the firm is its recognition, understanding and support

Banks and insurers return $150m to customers The Financial Markets Authority (FMA) says $150 million has been returned to about 1.5 million customers of banks and life insurance companies after a culture and conduct review in 2018 revealed widespread systemic weaknesses in their processes and systems.

The review was done jointly by the Reserve Bank and the FMA in the wake of the findings of the Australian Royal Commission into the conduct of financial institutions.

Clare Bolingford, the FMA’s director of banking and insurance, says the more firms have looked, the more problems they’ve found.

In the banking sector, 266 separate issues have been remediated, affecting 952,000 customers and $109m has been returned to them.

In the life insurance sector, 225 issues were found, affecting 500,000 customers and more than $43m has been paid in remediation. But the impact of only one-third of the life insurance issues has been assessed so far.

The FMA’s minimum requirements for fair conduct programs for financial institutions are laid out in the Financial Markets (Conduct of Institutions) Amendment Act 2022.

of diversity in our region particularly in recognising Te Tiriti o Waitangi in its practice.

Experienced Senior/Intermediate Crown Prosecutor We are looking for those who:

• Have litigation experience including the conduct of proceedings in the High and District Courts; • Wish to continue to develop their advocacy skills; • Maintain high standards and strive for excellence; • Work efficiently, have excellent time management and organisation

Women rule For the first time, women will be in the majority on the High Court of Australia – the country’s highest court – when its newest appointee, Federal Court Justice Jayne Jagot, is sworn in later this month. She will replace Justice Patrick Keane, who has reached the judicial retirement age of 70.

Justice Jagot will be the fourth woman on the High Court bench which is led by Chief Justice Susan Kiefel.

skills; • Are resilient and able to relate well to all people within our diverse community and supports a transformational criminal justice system.

Junior Crown Prosecutor

We are looking for those who: • Have some experience in litigation (1-3 years’ PQE), preferably in the criminal law or as a Judge’s clerk; • Have a desire to develop into an effective and fair advocate; • Maintain high standards and strive for excellence; • Work efficiently, have excellent time management and organisation skills; • Are resilient and able to relate well to all people within our diverse community and supports a transformational criminal justice system.

Attractive annual remuneration will be offered and relocation contributions are also available.

Please forward your covering letter with an up-to-date CV to

Rowena Brown via email on rbrown@pll.nz. Alternatively, you may contact the Crown Solicitor, Anna Pollett direct on 021 114 2118 or via email apollett@pll.nz for a confidential discussion.

08

Retailer pinged The Australian Securities and Investment Commission (ASIC) is taking retailer Harvey Norman and financial services company Latitude to court over claims that advertisements for interest-free payments didn’t give customers the full picture about the costs involved.

According to The Sydney Morning Herald, ASIC is claiming the ads, promoting ‘no deposit’ and ‘interest-free payments, failed to disclose that consumers could access these benefits only if they applied for a Latitude Mastercard. Nor did they outline the monthly account fees and sign-up fees required to hold the credit card.

ASIC said a customer paying off a purchase over 60 months would be liable for at least A$537 in fees on top of the purchase price. Harvey Norman says it will defend the proceedings. ■

Oct 7, 2022 Issue 35

INCORPORATED SOCIETIES

How to comply with the new Incorporated Societies Act There is a considerable grace period for re-registration under the Act. However, we recommend that incorporated societies are proactive in making any necessary changes to ensure applications for re-registration are submitted in time and successful

Daniel McLaughlin The Incorporated Societies Act 2022 replaces the Incorporated Societies Act 1908 which, at 114 years old, was outdated and failed to address modern governance and management best practice.

The Act marks the end of an extensive law reform process which began with a Law Commission review in 2010.

The Incorporated Societies Bill was introduced into Parliament on 17 March 2021. Its genesis was the Law Commission’s August 2013 report A New Act for Incorporated Societies which followed the 2010 review.

The Act received royal assent on 5 April 2022. It will come into force in stages, with all provisions in force by no later than 5 October 2023 (other than some provisions relating to the repeal of certain legislation, which come into effect at a later date).

The purpose According to the explanatory note to the bill, its purpose “is to put in place a modern framework of basic legal, governance, and accountability obligations for incorporated societies and those who run them”.

Main features The Act confirms that incorporated societies are bodies corporate, having perpetual succession and the capacity, rights, powers and privileges set out in the Act. This changes the minimum number of incorporated society members from 10 to 15. A body corporate will be treated as three members for the purposes of this rule. Incorporated societies must be governed by committees comprising at least three natural person members.

The Act prohibits an incorporated society from being carried on for the financial gain of its members

The Act specifies six duties of officers, aligned with those applying to directors under the Companies Act 1993: ■ to act in good faith and in what the officer believes to be the best interests of the incorporated society; ■ to exercise a power as an officer for a proper purpose; ■ not to act, or agree to the incorporated society acting, in a manner that contravenes the Act or the constitution of the incorporated society; ■ when exercising powers or performing duties as an officer, to exercise the care and diligence that a reasonable person with the same responsibilities would exercise in the same circumstances, taking into account several specified factors; ■ not to agree to or cause or allow the activities of the incorporated society to be carried on in a manner likely to create a substantial risk of serious loss to the incorporated society’s creditors; and ■ not to agree to the society incurring an obligation unless the officer believes at that time on reasonable grounds that the incorporated society will be able to perform the obligation when it is required to do so.

The Act also requires members to meet certain requirements before being appointed as officers.

Subpart 3 introduces more prescriptive requirements for constitutions for incorporated societies. Section 26 lists the matters that a constitution must cover. These include: ■ the purposes of the incorporated society; ■ the membership process; and ■ details of the committee of the incorporated society.

Under s 13 of the Act, the Registrar of Incorporated Societies has the power to refuse to incorporate an incorporated society where the proposed constitution does not comply with the Act. The Act prohibits an incorporated society from being carried on for the financial gain of its members. It introduces a fine not exceeding $50,000 for an officer if a failure to comply with this rule took place with the officer’s authority, permission or consent.

The Act provides guidance as to when an incorporated society will and will not be considered to be carrying on for the financial gain of its members.

It imposes a requirement for incorporated societies to prepare and file financial statements. The requirements for the

Continued on page 15 09

LITIGATION

A class action against Optus could

easily be Australia’s biggest: here’s what is involved

In determining damages, a court would take into account what efforts Optus made to remedy the leak, mitigate the potential impact on those affected and pay for the costs of replacing drivers’ licences, Medicare cards or passports

With the Optus data breach exposing almost 10 million current and former customers to identity theft, law firms are circling for what might be the biggest – and most valuable – class action case in Australian legal history.

A settlement could well be worth billions, eclipsing the current record of $494 million paid to 10,000 victims of Victoria’s 2009 Black Saturday bushfires.

Two class-action specialists, Maurice Blackburn and Slater & Gordon, are considering suing and it’s possible others will follow. Maurice Blackburn also has another case against Optus on its books over a 2019 data breach involving 50,000 customers.

To proceed, they’ll need to sign up at least seven people – one of whom acts as the representative or lead plaintiff.

This shouldn’t be hard. They’ll then need to file a statement of claim for financial, economic or other loss.

Multiple class actions are possible if those claims pursue different issues. Or the firms could work together, as they have in the past.

10

Photo: SOPA Images / Contributor / Getty Images

Mirella Atherton & Eliezer Sanchez-Lasaballett

The success rate There have been about 700 class actions in Australia in the past 30 years. Class actions can be pursued through state or federal courts. Most go to the Federal Court, which has been empowered to hear class actions since 1992.

Less than 5% of Federal Court actions have progressed to a judgment.

About 60% have ended in a courtapproved settlement, with the balance dismissed or discontinued.

The most common type of class action is by shareholders for loss of earnings. These account for about a third of Federal Court class actions.

The biggest shareholder settlement so far is $200 million, paid

by Centro Property Group to almost

6,000 shareholders in 2012 over misleading and deceptive conduct

by Centro’s board. This followed the Australian Securities and Investments Commission successfully prosecuting Centro, also in the Federal Court.

Continued on page 11

Oct 7, 2022 Issue 35

Continued from page 10

Class actions account for less than 1% of claims lodged with the Federal Court, but their scale and complexity means they take a disproportionate amount of court time, as well as attracting media attention.

Because of their cost, many class actions are funded by third parties as a type of business venture. This enables the law firms running the action to sign up plaintiffs on a “no win, no fee”. The litigation funder then takes a share of the settlement as does the law firm for its legal fees.

According to Australian Law Reform Commission data for settled cases, the median percentage of any settlement going to plaintiffs is 57%, with law firms taking 17% and funders taking 22%.

The grounds Based on what is known, there are two main ways a class action (or class actions) could proceed against Optus.

First, it could argue negligence, with the scope of liability outlined in state or territory legislation. Second, it could argue breach of privacy, in contravention of the federal Privacy

Class actions account for less than 1% of claims lodged with the Federal Court, but their scale and complexity means they take a disproportionate amount of court time

Act, in the Federal Court.

To succeed in negligence, a court would have to find Optus had a duty of care to its customers to protect their personal information, that it breached its duty and that customers suffered damage or loss.

To succeed on a breach of privacy, the Federal Court would have to find that personal information held by Optus was subject to unauthorised access or disclosure, or lost, and that the company failed to comply with the privacy principles enshrined in the Privacy Act. A second basis for a class action in the Federal Court could be to argue a breach of the Telecommunications Act. This legislation says carriers and carriage service providers “must to do their best” to protect telecommunications networks and facilities from unauthorised interference or unauthorised access.

The precedents The closest precedent in Australia to a successful class action for a mass breach of privacy is a 2019 case in the NSW Supreme court. This involved a claim by 108 NSW ambulance service employees against the NSW Health Department.

The employees, represented by the firm Centennial Lawyers, had their personnel files sold to a personal injury law firm by a contractor who was convicted of unlawfully disclosing information and carried out community service for the crime.

The court ordered NSW Health to pay the sum of $275,000 in compensation – $10,000 for the lead plaintiff and about $2,400 for the others.

How much?

Given the Optus data leak is established, there’s a strong basis to believe a class action would be

successful.

If so, a court could award compensatory damages for the time and cost of replacing identification documents, as well as exemplary (or punitive) damages, to send a message to corporations handling citizens’ private information.

In determining damages, a court would take into account what efforts Optus made to remedy the leak, mitigate the potential impact on those affected and pay for the costs of replacing drivers’ licences, Medicare cards or passports.

Though the economic loss per customer may be relatively small, multiplied by the potential class-action pool size – up to 10 million plaintiffs – compensatory damages could easily be billions of dollars, even without exemplary damages.

That makes this a hugely attractive prospect for a law firm or class-action funder. ■ Mirella Atherton and Eliezer Sanchez-Lasaballett are law lecturers at the University of Newcastle ■ The above was first published in The Conversation and is republished with permission

NEW EDITION OUT NOW

Sale of Land 4th edition Author DW McMorland The 4th edition of this essential text is now available.

The previous edition was published in July 2011. In the intervening 11 years, there have been changes in the relevant statute law along with land case law, including significant Court of Appeal and Supreme Court judgments.

A major change impacting conveyancing has been the relentless computerisation of banking. This has resulted in: ■ banks no longer issuing bank cheques or accepting other cheques; ■ the increased use of due diligence conditions, raising issues

of overlap with other terms of the agreement for sale; and

■ significant changes to the Agreement for Sale and Purchase form, resulting in the 11th ed 2022 on which this book is based.

The 4th edition states the law as at 31 December 2021.

Price for ADLS members $189 plus GST* Price for non-member lawyers $210 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740 or email: thestore@adls.org.nz * + Postage and packaging

11

FEATURED CPD

Purchase price allocation rules ALL-LEVELS TAX WEBINAR

Webinar 1 CPD hour Tuesday 1 November 12pm - 1pm Price from $80 +GST Presenters Helen Johnson, partner, PwC Legal; Iain McConville, technical specialist, Customer Compliance Services – Business, Inland Revenue; Nico Murray, customer compliance specialist, Customer Compliance Services – Business, Inland Revenue

PPPR Act proceedings ALL-LEVELS PPPR WORKSHOP

LD SO

These rules have tax implications for vendors and purchasers in property and business transactions and in situations where it may not be obvious that a purchase price allocation is required. Legal advisors need to fully understand these rules and be able to advise clients when deals are being negotiated and agreements are being signed.

FIND OUT MORE

In Person workshop 3.5 CPD hrs Wednesday 19 October 9am NG – 12.45pm MI O Facilitators Theresa Donnelly, NC IO S legal services manager, S SE D Perpetual Guardian and N CO Alan Gluestein, barrister, SE – T Wyndham Chambers OU

This practical workshop is designed for experienced and inexperienced lawyers working with the PPPR Act. It will focus on proceedings, capacity assessment issues and the philosophy underlying the legislation.

Video guest Dr Jane Casey, consultant psychiatrist and psychogeriatrician

FIND OUT MORE

Leading in law series INTERMEDIATE LEADERSHIP WORKSHOP

Workshop (online) 4 CPD hrs Thursday 20 October 9am – 1.15pm Price from $400 +GST Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

This distilled leadership development program will give participants a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best practice where the primary role of a leader is to empower people to perform and grow, this is an engaging and sometimes challenging leadership development experience.

Limited spaces available.

FIND OUT MORE 12

Oct 7, 2022 Issue 35

adls.org.nz/cpd

Health and safety case law update ALL-LEVELS EMPLOYMENT WEBINAR

Webinar 1 CPD hr Tuesday 25 October 12pm – 1pm Price from $80 +GST Presenters Joseph Lill, senior associate, Chapman Tripp; Grant Nicholson, partner, Anthony Harper and Angus Everett, senior solicitor, WorkSafe

cpd@adls.org.nz

09 303 5278

Get up-to-speed with recent and key workplace health and safety case law. This webinar will summarise recent noteworthy cases and current trends and covers pretrial applications, defended hearings and penalties.

FIND OUT MORE

Avoiding pitfalls with business sales INTERMEDIATE COMMERCIAL SEMINAR

In Person | Livestream 2 CPD hrs Tuesday 8 November 4pm – 6.15pm Price from $140 +GST Presenters Shane Hussey, director and principal, Hussey & Co and Sian Heppleston, analyst, Hussey & Co

Whether it is the sale of a business, the transfer of a business as part of a relationship property settlement or the execution of an estate, there are pitfalls when advising on transactions which lead to the sale of all, or part of, an interest in a business and which impact on the value of a business. Learn how to avoid these issues.

IN PERSON

International family law conference

In Person | Livestream 5.75 CPD hrs Thursday 10 November 9.15am – 4pm Price from $480 +GST Presenters Margaret Casey KC, Ewan Eggleston, Isaac Hikaka, Jennie Hawker, Calina Tataru, Inger Blackford and Zandra Wackenier

LIVESTREAM

Increasingly, family law matters involve one or more international issues. This conference will explore the key areas of property, maintenance and parenting. The focus will be on trans-Tasman proceedings and with insights into other jurisdictions.

Chair Simon Jefferson KC

ADVANCED FAMILY CONFERENCE

IN PERSON

LIVESTREAM 13

CPD IN BRIEF

Workplace mental health

Livestream | In Person 1.5 CPD hrs Monday 14 November 4pm – 5.30pm Price $110 +GST Presenters John Rooney; Myriam Mitchell and Dr John Fitzgerald

With the spotlight on mental wellbeing at work, employers must understand their obligations under the Health and Safety at Work Act 2015 (HSWA). This seminar will offer insights and practical guidance on how best to advise clients.

Chair Tim Clarke, partner, Bell Gully

IN PERSON

Partnership law

Personal effectiveness workshop

LIVESTREAM

Webinar 1 CPD hr Tuesday 15 November 12 pm – 1pm Price from $80 +GST Presenters Gerard Dale, partner, Dentons Kensington Swan and Sarah Gibbs, senior associate, Dentons Kensington Swan

Is the partnership structure still relevant in the 21st century? What is a partnership and how do you know if you’re in one? How do you establish a partnership and what are the common issues and pain points?

Online workshop 4 CPD hrs Thursday 17 November 9am – 1.15pm Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

Back by popular demand, this workshop offers a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

FIND OUT MORE

FIND OUT MORE

Advanced parole law

Live Stream | In Person 1.5 CPD hours Monday 21 November 4.30pm – 6pm Presenters Emma Priest, barrister, Blackstone Chambers and Hannah Kim, barrister

Parole law is a growth area, as more prisoners are wanting legal representation when seeking parole. Broaden your skills with this practical session on advanced parole law and complex applications.

Chair Sir Ron Young, chairperson NZ Parole Board

IN PERSON

Managing the Early Stages of an Intellectual Property Dispute Tuesday 22 October | Live Stream | In Person | 1.5 CPD hours Visit adls.org.nz for more information.

14

LIVESTREAM

Oct 7, 2022 Issue 35

Continued from page 09 financial statements depend on the size of the relevant incorporated society.

Certain larger incorporated societies must have their financial statements audited.

The registrar will be required to maintain more detailed information and incorporated societies will be required to update the registrar in relation to any changes. Incorporated societies will be required to file annual returns with the registrar.

The Act also introduces provisions dealing with the amalgamation of incorporated societies, allowing two or more incorporated societies to amalgamate, either into one of the existing incorporated societies or a new incorporated society.

It introduces a range of offences relating to incorporated societies for which specified penalties, some of which are significant, apply. The Act introduces a fine of up to $10,000 for the improper use of the words “incorporated”, “inc” or “manatōpū”.

Re-registration deadline An incorporated society will continue to be subject to the Incorporated Societies Act 1908 until it re-registers under the Act or until the transition date, being the later of: ■ 1 December 2025; and ■ the date that is two years and six months after the commencement of certain transitional provisions.

Incorporated societies may re-register before the transition date. To reregister, the entities will need to meet the requirements for registration under the Act. If an incorporated society has not re-registered before the transition date, then it will cease to exist, but it can be restored to the register in accordance with the Act. Incorporated societies will have from October 2023 to April 2026 to re-register.

Action required Prior to October 2023, the Governor-General will, by Order in Council, issue regulations under the Act. These are expected to outline the process and format for re-registering an incorporated society, fees associated with reregistration (if any) and the make-up of committees, amongst other matters.

Once these regulations have been issued, societies should re-register under the Act as soon as practicable.

Prior to re-registration, societies will need to: ■ review their constitutions to ensure that they comply with the Act; ■ confirm that their officers meet the appointment conditions under the Act; ■ ensure that their officers are aware of and ready to comply with the officers’ duties listed in the Act; ■ be prepared to meet the requirements to file annual returns; and ■ have financial statements prepared in accordance with the necessary requirements.

There is a considerable grace period for re-registration under the Act. However, we recommend that incorporated societies are proactive in making any necessary changes to ensure applications for re-registration are submitted in time and successful. ■ Daniel McLaughlin is a senior associate at Dentons Kensington Swan.

Faye McIntosh, a law graduate at the firm, also contributed to this article ■

WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

( 09) 303 5270

COURT David Austin Toophee

LOWRY Wendy Ann

• Late of Waimate North, Northland • Mechanic/landscaper • Aged 62 / Died 09’06’22

• Late of Carnarvon Rest Home, 20 Lincoln Road, Henderson, Auckland, Formerly of 3/4 Shaw Street, Sandringham, Auckland • Never married • Retired • Aged 74 / Died 02’09’22

KHO Chiaw Peng • Late of 11 Kingsley Street, Westmere, Auckland • Retired • Aged 80 / Died 04’09’22

RUSHTON Helen Georgina • Late of Auckland • Formerly laboratory manager, latterly retired • Aged 76 / Died 17’06’22

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

15

Events A toast to Queen Elizabeth II Thank you to those that for joined us in toasting Her Majesty Queen Elizabeth II on 22 September

16

Jeanne Heatlie and Jonathan Wood

Fareena Ashton, Geraldine Lewis and Cally McWha

Tom Piggin and Renee Jensen

Sir Anand Satyanand

Peter Kiely ONZM and Andrew Gilchrist

Alex Sheehan, Ben Thomson and Leigh Judd

Oct 7, 2022 Issue 35

Featured events

Connecting New Zealand lawyers

Wellington express lawyers’ lunch Wednesday 19 October 12.30pm – 2pm Flamingo Joe’s Bar & Eatery, 1/10 Waterloo Quay, Pipitea, Wellington Learn more

Upcoming November

Thursday 3 | New Plymouth sundowner Thursday 24 | Hamilton sundowner

December

Friday 2 | Annual breakfast with the Attorney-General Wednesday 7 | Northland lawyers’ lunch Thursday 8 | East Auckland lawyers’ lunch

Arthur Young’s Retirement Dinner Thursday 20 October 6pm – 10pm The Northern Club, 19 Princes Street, Auckland CBD

Photo: d3sign / Getty Images

Learn more

Immigration dinner with the Minister of Immigration Wednesday 2 November 6pm – 9.30pm The Northern Club, 19 Princes Street, Auckland CBD Learn more

Book Here

events@adls.org.nz

adls.org.nz

17

Cruickshanks Solicitors Privy Council Agents • • • •

Probate and resealing Property (Relationships) Act 1976 agreements Agency litigation Sole representative of overseas office, inter company transfers and work permits generally • Property UK and European investment • China network connections and representation

10 Bentinck Street, London W1U 2EW Tel: (0044) 020-7487 4468 • Fax: (0044) 020-7487 5466 • Email: john@lawco.co.uk www.cruickshanks.co.uk • www.lawco.co.uk

BARRISTERS CHAMBERS Available for lease in Waterloo Towers Next to the Auckland High Courts Lease includes: Office, Boardroom, Reception, Library and double Lockup Garage - use of fully equipped Kitchen and bathroom City and Sea views Half share of 154m2 floor with another Barrister

Employment Lawyers Wellington CBD Graduate/Junior Level Intermediate Level Dyhrberg Drayton Employment Law, a boutique employment law firm based in Wellington CBD, is seeking to appoint the following: Graduate/Junior Level Lawyer, 0-2 years’ PQE, $58,000 – $70,000 gross Intermediate Level Lawyer, 2-5 years’ PQE, $70,000 – $110,000 gross • excellent legal writing, research and advocacy skills • employment law experience preferred • high standards of client service • ability to work effectively and collegially in an open-plan team environment • a sense of humour • ideally an understanding of tikanga and te ao Māori and commitment to continuing development of cultural competence Successful candidates will have a desire to develop and enhance their skills in the employment law environment by working in a small, highly effective team with a busy workload.

The firm offers: • positive work/life balance • flexible working and working from home • health and wellness benefits including sick leave from the commencement of employment • TOIL (time off in lieu) • ability to engage in pro-bono work Please provide a full CV including references and a covering letter by 14 October 2022 to catherine@ddelaw.co.nz.

For enquires please contact Anna Stewart on 021 424 246

1 CPD HOUR

Purchase Price Allocation rules: 1 year in Tuesday 1 November | 12pm - 1pm | Webinar With tax implications for both vendors and purchasers in property and business transactions, legal advisors need to fully understand these rules – and be able to advise clients when deals are being negotiated and agreements are being signed.

T 09 303 5278

18

E cpd@adls.org.nz

W adls.org.nz/cpd

Oct 7, 2022 Issue 35

ADLS: Careers

We have a vacancy for a talented family lawyer. Ideally you have a passion for family law and the ability to relate well to a wide range of people.

You will build on your experience negotiating and drafting relationship property agreements, running contested relationship property files, COCA and DV matters.

The role is an exciting opportunity for a family lawyer looking for the next step in their career who enjoys working in a small busy team environment and is willing to build relationships with existing clients and other practitioners and contribute to the growth of the practice. The role could suit someone returning to the workforce.

Ideally you will have: • Excellent verbal and written communication skills • An ability to manage and develop excellent client relationships • An ability to work both collaboratively and independently however supervision is available to enhance your experience.

We offer the following: • Competitive remuneration and free onsite parking • Family-friendly atmosphere • Flexible working hours • Enjoy an easy commute and skip the traffic to the city • Be part of a well-supported team where there is flexibility in the role • 4 weeks’ annual leave + ongoing professional development • Only private clientele, no legal aid clients.

Please forward your CV to chantal@lawassociates.co.nz

CPD Programme Developer ADLS is looking for an experienced lawyer with 3-4 years’ PQE to initiate, plan, and execute CPD programmes for the legal industry.

Based in Auckland, this is an exciting opportunity for someone who is commercially astute and is interested in advancing how CPD programmes can be delivered in a way that engages and increases participation.

The role will suit someone who can quickly establish credibility with key stakeholders and maintain strong professional relationships. If interested, please send a cover letter and your CV to krystal.marshall@adls.org.nz.

ADLS operates flexible working arrangements.

Applications close Friday 21 October 2022.

1 CPD HOUR

Workplace Health & Safety Case Law Update Tuesday 25 October | 12pm - 1pm | Webinar Get up to speed with recent and key workplace health and safety case law. This webinar will summarise recent noteworthy cases and current trends as it covers pre-trial applications, defended hearings and penalties.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

19