New Zealand, like many other jurisdictions, has been grappling with the new legal issues arising from the upsurge in communication online. An area that has recently received attention is the extent to which a person or entity that hosts or republishes content created by third parties online can be held liable for defamatory content generated by users. Two recent High Court decisions have clarified the approach in New Zealand.
Following two recent decisions which held that the imposition of a smoking ban in prisons, first by amending prison rules and subsequently by amending regulations, was unlawful, the High Court has upheld the lawfulness of a policy banning smoking on all properties owned or controlled by a district health board. The contrasting outcomes provide a useful illustration of the approach taken in judicial review in New Zealand.
The introduction of a smoking ban in prisons has resulted in the airing of some interesting legal and constitutional issues. The lawfulness of the manner in which the ban was introduced was successfully challenged by a prisoner, and the government's legislative response to the High Court's decision has since provoked both a further successful legal challenge and criticism from a constitutional perspective.
The New Zealand Law Commission has released a report on its review of the legislation establishing New Zealand's court system. The commission was charged with reviewing the legislation with a view to modernising and consolidating it into a single statute. The report contained a number of recommendations, many of which will be adopted in new court legislation to be introduced later in 2013.
During the 2011 general election the National Party campaigned on an economic policy that would bring about the partial sale of five state enterprises. Following its election, the government began the process of restructuring the crown's ownership of these state enterprises. A recent Supreme Court decision has cleared the way for this crown sale of shares.
A recent Supreme Court decision addressed the interplay of contractual and tortious liability in New Zealand, as well as the appropriate measure of damages for breach of contract. The decision shows that courts will not readily excuse parties whose negligence induces entry into a contract, even a public body such as a district council.
In crowded competitive markets, a sharply focused comparative advertisement can make a real impact with viewers, particularly where it highlights lower pricing. However, comparative advertising carries risks if not done well and provides a fertile source of disputes. A recent case shows how the courts have grappled with the right approach to take to advertising, and is a reminder of the level of care that advertisers must take.
The New Zealand Commerce Commission has increasingly sought to bring court proceedings under the Commerce Act 1986 regarding cartel conduct by parties that do not ordinarily reside or conduct business in New Zealand, or that do so only through a local subsidiary. Recent cases show a determination to hold foreign parent companies liable for competition law breaches carried out through their New Zealand offspring.
The Supreme Court has held that a woman who became pregnant following a failed sterilisation had suffered a "personal injury" caused by medical misadventure, for which she was entitled to cover under the state compensation scheme. As a result, the woman could not sue the medical professional who was responsible. The decision is a reversal of an earlier Court of Appeal decision.
The High Court has recently ruled that warrants used by the New Zealand police to undertake a search of the New Zealand residence of Kim Dotcom, founder of Megaupload, on behalf of the US government were unlawful and that the conduct of the police exceeded what would have been permitted even if the warrants were lawful.
A recent judgment extended the protection afforded to lien holders when the property subject to their lien is arrested. The court held that an application for arrest by a possessory lien holder and the subsequent handover of possession of the vessel to the admiralty registrar did not destroy the possessory lien, so that the lien holder was entitled to priority payment from the proceeds of sale of the vessel ahead of other claimants.
The much-publicised sale of a group of New Zealand farms to an overseas company has been stalled by a judicial review decision of the High Court. Consent had been granted by the ministers of finance and land information on the recommendation of the Overseas Investment Office, but the court overturned the decision, finding that the office and the ministers had misdirected themselves regarding a key test.
A new set of High Court discovery rules has been designed to reduce the often disproportionate cost of discovery - a matter of increasing concern in New Zealand and other common law jurisdictions. Key features include a new standard for discoverability, a presumption in favour of electronic exchange and the creation of an express obligation to preserve documents.
The director of Maritime New Zealand has been declined leave to appeal to New Zealand's highest court in relation to the reinstatement of a safe ship management company. Owners of vessels are primarily responsible for the safety of such vessels; however, commercial vessels must also be registered with a safe ship management company, which periodically inspects and surveys the ship.
The District Court Rules 2009 introduced a new regime for claims, which radically departed from traditional civil procedure. Almost 18 months after their commencement, it is clear how dramatically these rules have affected civil litigation. The interlocutory warfare that was common in traditional civil procedure has made way for a process that is strongly focused on early settlement.
The Trans-Tasman Proceedings Act is intended to support closer economic ties with Australia through commercial regulatory enforcement, and aims to make it easier for individuals and businesses to resolve trans-Tasman legal disputes through the courts. Trans-Tasman litigation will be different from New Zealand litigation involving parties in other countries.
The High Court recently confirmed that the statutory two-year limitation period for claims arising out of vessel collisions applies whenever the proceeding is one in which the High Court has admiralty jurisdiction. The new Limitation Act 2010 does not contain an exclusion for claims enforceable in rem and the six-year time limit will apply to such claims unless a more specific limitation applies.
Following the appointment of a judicial conduct panel to inquire into certain conduct by a judge of the Supreme Court, the judge brought a judicial review application to challenge the legality of the judicial conduct commissioner's recommendation that a panel be appointed, as well as the subsequent appointment. The High Court considered the applicable standard for deciding when a judge's conduct may warrant removal.
A recent Supreme Court decision suggests that the best way to enable courts to interpret contracts in such a way as to give effect to the common intention of the parties is to allow reference to post-contractual conduct, and to leave the scope of the evidence to be policed by the courts on a case-by-case basis, using relevance as the touchstone.
A judge of the Supreme Court, New Zealand's highest court, has brought a legal challenge to an inquiry into his conduct. Among other things, the inquiry arises from allegations about the way in which he disclosed a business relationship with counsel for one of the parties to a case that he heard when he was a judge of the Court of Appeal.
The Supreme Court recently considered the use of evidence of prior negotiations in contract interpretation. It was the court's first opportunity to consider the issue in detail since the House of Lords decision in Chartbrook Ltd v Persimmon Homes Ltd. Overall, the case seems to signal an increasingly liberal approach to reference to negotiations.
The High Court was recently required to construe the word 'spouses' in the context of the Adoption Act 1955. The case illustrates the complexities involved in resolving the tensions in the statutory construction of a 35-year-old piece of social legislation in light of the Bill of Rights Act and a pattern of subsequent Parliamentary inaction in respect of the provision in question.
A controversial Court of Appeal decision on the interpretation of the Carriage of Goods Act 1979 has been overturned by the Supreme Court. The reversal restores the previously accepted position: carriers are protected by the act and carriers that subcontract aspects of carriage to others do not lose the protection of the act by doing so.
The High Court recently considered whether the inspection of discovered emails extends to email attachments. Most of the conceptual difficulties that arise from the discovery of emails stem from treating a email printout as the document itself, whereas an email - viewed as an electronic document - should be taken to include all of its elements, including attachments and reproduced copies of preceding emails.
New procedural rules for district court claims will require practitioners to alter their approach and advice. Interlocutory warfare will cease, with only interlocutories that are considered genuinely necessary being allowed, and most claims will no longer require formal discovery. An emphasis on judicial settlement will place greater emphasis on a practitioner's ability to conclude settlement negotiations successfully.
The High Court has refused to grant declaratory relief to a judicial review claimant, although the claimant had successfully established grounds for review, had demonstrated prejudice and would normally have been entitled to a remedy. Some of the court's reasoning is disturbing and sits uneasily with the accepted view of the division of powers and the role of the courts in construing and interpreting legislation.
The Supreme Court has recently clarified the circumstances in which New Zealand's competition regulator can exercise its information-gathering powers. It held that the Commerce Commission cannot issue an information-gathering Section 98 notice and have its power to do so judged retrospectively by reference to what it may discover from a 'fishing expedition' under that notice.
The High Court recently considered the discovery obligations of parties to litigation with regard to the correct treatment of emails forming part of an email chain. The decision addresses the question of whether an email chain is a separate document in itself or part of a single document.
The High Court has ruled that substituted service could be made on a defendant overseas on the social networking website Facebook, as newspaper advertising could not be effectively targeted. This is the first time that the New Zealand courts have allowed the service of proceedings on Facebook, but it follows a decision by an Australian court allowing service of a default judgment on the website.
New High Court procedural rules have come into effect. The significant amendments for international practitioners include changes to the rules on the service of persons outside New Zealand and the court's increased powers to grant interim measures in support of overseas judgments. More substantive changes in relation to case management, evidence and judicial review are expected soon.
In the first case of its kind, the High Court fined an individual NZ$100,000 for being an accessory to the sending of spam emails in breach of the Unsolicited Electronic Messages Act. However, the available penalties are unlikely to deter spammers if the commercial rewards are as great as this case indicates. Moreover, it remains to be seen whether the act may be given wider extraterritorial application.
The Court of Appeal has reversed a decision - in a case arising from a failed sterilization operation - that pregnancy is a compensable personal injury under the Injury Prevention, Rehabilitation and Compensation Act. The existence of cover under the act is a procedural bar to civil claims for injury, so the decision will allow for civil damages claims against a doctor or hospital in such cases.
Until recently, it was unclear whether the principle of indefeasibility of title extended beyond the registered memorandum of an all-obligations mortgage to an unregistered loan agreement recording the debt that it secures. The Court of Appeal has ruled in a preliminary case that such collateral documents are not indefeasible unless they are sufficiently incorporated into the registered memorandum.
The High Court recently had to resolve the inherent conflict between the aims of the Official Information Act 1982, which was enacted in order to make official information freely available, and those of the Privacy Act 1993, which was enacted to protect personal information from disclosure. It construed both acts and ruled that the former prevails over the latter.
The Evidence Act 2006 largely codified New Zealand’s common law evidence rules. However, as a result of late changes, legal professional privilege did not attach to legal advice obtained from overseas practitioners, which left open the risk of such advice being discoverable in New Zealand proceedings. A recent order in council extends privilege to communications with practitioners from 87 countries.
When considering whether a contract is unconscionable, should the question be asked with reference to the time of entry into the contract or the time when the contract became unconditional? The Supreme Court of New Zealand recently adopted the former approach, reversing that taken by the High Court and the Court of Appeal.
The High Court of New Zealand has reviewed the state of abortion law and the rights of the unborn, an area which it aptly described as "socially divisive". The applicant sought judicial review of the actions of the Abortion Supervisory Committee, claiming that the committee was failing to ensure that the statutory test for lawful abortions was being properly and consistently applied.
The Evidence Act 2006 was designed to simplify the law of evidence, but one of its unintended changes affects legal professional privilege as it applies to legal advice obtained from practitioners outside New Zealand and Australia. The risk of such advice from overseas practitioners being discoverable in proceedings is deeply worrying, but no remedial action has yet been taken.
The High Court has reversed the Commerce Commission's decision to reject clearance applications by New Zealand's two supermarket competitors to acquire shares in the country’s leading general merchandise trader. The court was critical of the commission's conclusions and the evidence on which they were based. The commission has been granted leave to appeal to the Court of Appeal.