Mr Chris Browne

Chris Browne

Updates

Litigation

Supreme Court upholds smoking ban in mental health facilities
New Zealand | August 22 2017

The Supreme Court recently upheld a ban on smoking in public mental health facilities, ruling that the ban did not breach patients' rights, even of those compulsorily detained on the property. The court held that there was no requirement under the Smoke-free Environments Act to provide a dedicated smoking room, and rejected the appellant's claim that the smoking prohibition infringed a number of rights under the Bill of Rights Act.

Breach of disclosure requirements aborts complex financial crime trial
New Zealand | August 15 2017

The High Court recently aborted the trial of four company directors of two failed finance companies after the prosecution disclosed an unprecedented number of previously undisclosed documents at an advanced stage of the trial. The court's careful examination of the principles for aborting a single-judge trial will be useful in similar cases, in light of the fact that, because complex commercial criminal cases involve immense numbers of documents, disclosure failures can occur.

Court of Appeal upholds prisoner voting rights declaration
New Zealand | August 08 2017

The Court of Appeal recently upheld a High Court declaration that a prohibition on prisoners voting is inconsistent with the Bill of Rights Act. The case is significant in its finding that the courts have jurisdiction to make declarations of inconsistency. Although the courts have, from the time of the act's enactment, been committed to granting remedies where possible to vindicate rights, they have declined earlier applications for declarations of inconsistency.

Restricted scope of judicial review for government procurement decisions restored by Court of Appeal
New Zealand | April 25 2017

The Court of Appeal recently reversed, on appeal, a High Court judgment setting aside the Ministry of Health's decision to award problem gambling services contracts to parties other than the applicant, the Problem Gambling Foundation, a major incumbent provider. The decision is important because it significantly decreases the likelihood of unsuccessful bidders being able to use the government procurement rules to set aside procurement decisions.

Litigation funding in New Zealand
New Zealand | January 31 2017

Unlike other common law jurisdictions, New Zealand has not legislated to extinguish or restrict the torts of maintenance and champerty. Nonetheless, the courts have adopted a pragmatic approach to the management of third-party funded litigation, which recognises the benefits of third-party litigation funding in promoting access to justice, while leaving certain issues arising under the torts of maintenance and champerty for determination in the context of an actual claim of that nature.

Appeal comprehensively clarifies prospectus liability
New Zealand | November 29 2016

The Court of Appeal recently reviewed important aspects of liability under New Zealand securities legislation. The decision is a useful confirmation of a number of securities law liability issues which have been gradually clarified through a series of cases following the collapse of most of New Zealand's finance companies during the global financial crisis. It also offers guidance on the approach to retrospectivity, a concept which is notoriously difficult to apply in some cases.

Supreme Court rules on lessee's obligations for remediation of subsurface contamination
New Zealand | November 08 2016

The Supreme Court recently reversed a Court of Appeal decision, holding that Mobil Oil NZ Ltd was not responsible for remedying the contamination of land that it and its predecessors had occupied from 1925 to 2011. The Supreme Court ruled that the clause requiring Mobil to keep and deliver up the premises in good order did not extend to a requirement for it to remediate the subsurface of the land.

Cloud storage operator ordered to disclose user details for use in foreign proceeding
New Zealand | August 02 2016

The High Court recently ordered an internet cloud storage company to disclose user information to Kazakhstan for use in a US proceeding. The judgment provides a useful overview of the principles considered by courts when faced with requests for assistance from foreign courts and fuels discussion around balancing the provision of information with local privacy legislation against a background of increased public awareness of the impact of hacking.

Journalistic privilege upheld as police warrant and search ruled unlawful
New Zealand | March 29 2016

The High Court recently ruled that a police warrant to search a journalist's house, and consequently the search itself, was unlawful. The judgment offers useful comment on the importance of disclosure by law enforcement agencies seeking warrants, particularly where journalistic privilege is concerned. However, it does not address the question of who is a journalist, or what journalism is, for the purposes of the privilege.

Extent of lease obligations for remediation of contamination
New Zealand | March 22 2016

The Court of Appeal has held Mobil Oil NZ Ltd liable for the cost of remedying hydrocarbon contamination of land that it has occupied since 1925. The issue before the court was whether an obligation in a 1985 lease that required Mobil to deliver up the land "clean and tidy" extended to the remediation of subsurface contamination, including contamination that had occurred long before the lease period.

Blanket approach insufficient under official information legislation
New Zealand | November 17 2015

The High Court recently ruled that holders of official information are not justified in taking a blanket approach when responding to requests for official information. The judgment confirms the primacy of open government and access to information under freedom of information legislation, but also the limits to the courts' ability to review the substantive merits of a decision to withhold information in a particular case.

Government procurement rules used to set aside ministry's procurement decision
New Zealand | October 20 2015

The Ministry of Business, Innovation and Employment's rules on government procurement decision making recently featured in a successful judicial review application to set aside a Ministry of Health contract award following a request for proposals process. The court confirmed that cabinet-imposed procurement rules will be strictly applied and that non-complying decisions may be set aside.

Supreme Court mandates disclosure of litigation funding agreements
New Zealand | December 10 2013

The Supreme Court has imposed disclosure requirements on plaintiffs whose legal costs of pursuing the claim are covered by a third-party litigation funder. The disclosure required by the Supreme Court is likely to lead to more defendants seeking security for costs when they are notified that a funder is involved or applying for a stay on the basis of abuse of process.

High Court upholds smoking ban for hospitals, but not for prisons
New Zealand | July 30 2013

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.

Prison smoking ban prompts judicial intervention and raises constitutional concerns
New Zealand | July 09 2013

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.

Supreme Court rules post-sterilisation pregnancy is personal injury
New Zealand | August 14 2012

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.

High Court holds Dotcom search warrants to be unlawful
New Zealand | August 07 2012

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.

High Court extends protection for lien holders
New Zealand | July 17 2012

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.

Ministers applied wrong economic benefit test to overseas acquisition
New Zealand | March 06 2012

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.

Overhaul of High Court discovery rules
New Zealand | January 31 2012

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.

Law change to aid Australia-New Zealand proceedings
New Zealand | March 22 2011

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 new Limitation Act: limitation in admiralty proceedings
New Zealand | November 30 2010

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.

High Court rules in Supreme Court judge conduct case
New Zealand | October 26 2010

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.

Supreme Court on use of post-contractual conduct in contract interpretation
New Zealand | September 14 2010

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.

Judicial challenge to inquiry into conduct of Supreme Court judge
New Zealand | September 07 2010

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.

Use of evidence of prior negotiations in contract interpretation
New Zealand | August 17 2010

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.

Statutory interpretation in light of social change
New Zealand | July 20 2010

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.

Does Email Discovery Mean Discovery of Attachments?
New Zealand | November 10 2009

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.

High Court's reminder: remedies for judicial review claims are discretionary
New Zealand | October 27 2009

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.

Email Chains: Discovery Obligations
New Zealand | September 01 2009

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.

High Court Procedural Rules Revised
New Zealand | March 24 2009

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.

High Court Applies Anti-spam Law
New Zealand | March 10 2009

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.

Court of Appeal Rules Pregnancy Is Not Personal Injury
New Zealand | March 03 2009

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.

Indefeasibility of Title and the Problem with All-Obligations Mortgages
New Zealand | January 27 2009

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.

High Court Rules on Conflict between Official Information Act and Privacy Act
New Zealand | November 25 2008

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.

Supreme Court Rules on Unconscionable Contracts
New Zealand | August 05 2008

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.

Judicial Review of Abortion Law Examines Gap between Legislation and Practice
New Zealand | July 22 2008

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.

Shipping & Transport

Ship arrests in practice
New Zealand | January 15 2014

Initial ship arrest in New Zealand can be fast and relatively inexpensive. The time and cost involved in maintaining the arrest and claim against the ship, and possibly obtaining judicial sale, will depend on a range of factors. Provided that all of the necessary information is available, the proceeding can be prepared and the application for arrest made within a short time of the instruction being received.

Charges laid in relation to MV Rena grounding
New Zealand | August 08 2012

In October 2011 the MV Rena struck the Astrolabe Reef, resulting in over 1,000 tonnes of waste collecting on the coastline of New Zealand's North Island. The master and second officer have been sentenced to seven months' imprisonment; the shipowner, if convicted, faces a fine of up to NZ$600,000 for discharging harmful substances into water from a ship, plus up to NZ$10,000 for every day that the offence continues.

Financial review of Maritime New Zealand
New Zealand | July 18 2012

The Transport and Industrial Relations Committee has completed a report on its 2010-2011 financial review of Maritime New Zealand. The report focused on the initial response and continuing work on the clean-up following the grounding of the CV Rena on the Astrolabe Reef, near Tauranga in the North Island.

High Court extends protection for lien holders
New Zealand | July 11 2012

A recent judgment by the High Court in its admiralty jurisdiction 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.

Court's interpretation of Carriage of Goods Act casts doubt on limits of liability
New Zealand | March 21 2012

New Zealand has a statutory regime that imposes strict liability on contracting carriers for goods carried domestically, regardless of whether the damage was caused by them or by a separate actual carrier. In exchange for this strict liability, contracting carriers can limit their liability to NZ$1,500 a unit. A recent High Court decision has explored the limits of this statutory regime.

The new Limitation Act: limitation in admiralty proceedings
New Zealand | November 24 2010

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.