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News

Blockchain technology will be “game changer” in conveyancing (26 April 2017) (UK)

Legal Futures UK

Blockchain-backed ‘smart contracts’ will be a “game changer” in property...

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Overseas couples match New Zealand couples in same-sex marriages (3 May 2017) (NZ)

Stats NZ

Half of all same-sex marriages and civil unions registered in New Zealand in 2016 were couples...

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Vineyard labour contractor to pay $73,081.70 for employment law breaches (3 May 2017) (NZ)

Ministry of Business, Innovation & Employment

A viticulture labour contracting business has been ordered to pay $73,081.70 in penalties and...

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London seeks 350 magistrates to fill ageing bench (2 May 2017) (UK)

Law Society Gazette

he judiciary has embarked on a recruitment drive to fill magistrates benches across London in the...

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Cyber Precedent (May 2017) (AUS)

Law Council of Australia

Law firms and legal practices represent an attractive target. Cybersecurity needs to be...

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Full list of Justice Sector Seriousness Scores released (3 May 2017) (NZ)

New Zealand Law Society

Justice Minister Amy Adams has released a detailed list of Justice Sector Seriousness Scores....

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OIO gives consent for Sky and Vodafone merger (3 May 2017) (NZ)

New Zealand Law Society

The Overseas Investment Office has announced that consent has been granted to the merger of SKY...

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Fairfax & NZME face difficult decision whether to appeal Commerce Commission determination (3 May 2017) (NZ)

Simpson Grierson

While the Commission's determination to decline clearance and authorisation of the merger is of...

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NZ Bar backs Family Court amid controversy (1 May 2017) (NZ)

NZ Lawyer

The New Zealand Bar Association says that critics are placing undue blame on the Family Court...

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RBNZ release issues paper relating to review of capital requirements for registered banks (2 May 2017) (NZ)

Minter Ellison Rudd Watts

The Reserve Bank announced in March that it will be conducting a review of the framework that is...

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Litigation funding will become a fixture of NZ’s legal landscape, says top firm (1 May 2017) (NZ)

NZ Lawyer

Litigation funding is not only here to stay but will become an increasingly significant part of...

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In folksy talk, Justice Alito shares stories of inner workings of U.S. Supreme Court (27 April 2017) (USA)

American Bar Association

Associate Justice Samuel Alito, Jr. walked a large crowd through the back chambers of the U.S....

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Leading edge technologies to deliver new ways of working (26 April 2017) (NZ)

Ministry of Justice

The Christchurch Justice and Emergency Services Precinct will be fitted with the latest...

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Gawpers go home: how luxury flat-owners could shut down the Tate's viewing platform (24 April 2017) (UK)

guardian.co.uk

Good walls make good neighbours – but not, it seems, when they are made entirely of glass....

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Request for Police taser camera footage and tactical options report (26 April 2017) (NZ)

ombudsman.parliament.nz

Police were justified in withholding taser camera footage, but not the related tactical options...

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New human rights to protect against 'mind hacking' and brain data theft proposed (26 April 2017) (UK)

guardian.co.uk

New human rights that would protect people from having their thoughts and other brain information...

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ABA welcomes Federal Government funding injection into legal assistance sector (24 April 2017) (AUS)

Australian Bar Association

The Australian Bar Association has today welcomed the Federal Government’s announcement to...

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Proposed amendments to the Takeovers Code welcomed (19 April 2017) (NZ)

Simpson Grierson

Unlisted companies will need to meet a revenue and/or asset test before becoming subject to the...

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Young man's mental health care criticised (10 April 2017) (NZ)

Radio New Zealand

The Southern District Health Board failed to recognise that a mental health patient who later...

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Little 'very pleased' no damages awarded in defamation case (10 April 2017) (NZ)

Radio New Zealand

A jury has cleared Labour leader Andrew Little of defaming Lani Hagaman and has been unable to...

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Click here to access all news in the archive

Articles

Smart Contracts and Web 3.0: The Evolution of Law? (3 May 2017) (USA)

www.scl.org

Think about the last time you lent money to a friend. You probably did it because you trust them....

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Meet the Woman Helping Other Women Start Law Firms (2 May 2017) (USA)

Bloomberg Law

How many women owned law firms are there in the U.S.? Nobody appears to know, according to Nicole...

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Corporate Reporter - Issue No. 45 (2 May 2017) (NZ)

Bell Gully

Items in this issue include: New Contract and Commercial Law Act 2017, Changes...

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Financial Regulation Update – May 2017 (3 May 2017) (NZ)

Russell McVeagh

In this issue: Guilty plea in FMA insider trading case; FMA drops obstruction charges...

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How to develop a law firm app (1 May 2017) (AUS)

Lawyersweekly.com.au

In the US, the market has been shifting increasingly away from websites to apps. What is an...

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Eminem v National Party: copyright case over song ‘Lose Yourself’ (2 May 2017) (NZ)

A J Park

The trial has begun for the long-running battle between the owners of the copyright in the Eminem...

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Lacoste shakes up New Zealand trade mark law (1 May 2017 ) (NZ)

A J Park

Most businesses know the importance of registering trade marks. But registration is only the...

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New Zealand – employee share scheme changes (27 April 2017) (NZ)

Russell McVeagh

The Taxation (Annual Rates for 2017-18, Employment and Investment Income, and Remedial Matters)...

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What's in a name? (28 April 2017) (NZ)

Buddle Findlay

New Zealand's Privacy Act provides a number of enforcement options to deal with information...

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Raising Arizona: Should New Zealand recognise blockchain signatures and smart contracts in our Electronic Transactions Act? (27 April 2017) (NZ)

Bell Gully

The State of Arizona has passed a ground-breaking law confirming that smart contracts and...

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Withholding tax payments accelerated on related party loans with retrospective effect (27 April 2017) (NZ)

Bell Gully

A recent law change targeting related party loans will accelerate the payment of non-resident...

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Construction Bulletin April 2017 - Market Activity (27 April 2017) (NZ)

Minter Ellison Rudd Watts

In this issue: Accommodation Crisis in Edgecumbe - A third of Edgecumbe households to...

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Significant Immigration Policy Reforms – “Tweaks” That Will Actually Have a Major Impact (26 April 2017) (NZ)

Lane Neave

The Government announcement yesterday on the proposed changes to Immigration New Zealand (INZ)...

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When is toothpaste, not toothpaste? When it's a nurdle ... (25 April 2017) (NZ)

Hudson Gavin Martin

The Assistant Commissioner of Trade Marks has recently held that the striped logo on the...

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Breakthrough for pay equity - an historic settlement and new Bill (24 April 2017) (NZ)

Bell Gully

On 18 April 2017, the Government entered into a legal settlement which has been described as...

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Deadline set to stake a claim in conflicted .nz domain names (24 April 2017) (NZ)

A J Park

If you own a conflicted New Zealand domain name and you want a say in who gets the shorter .nz...

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Mana Whakahono-a-Rohe: Iwi Participation Arrangements (21 April 2017) (NZ)

Kensington Swan

“The commitment to Mana Whakahono-a-Rohe agreements is ground-breaking as we at last have a...

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Mountaineer’s knee – object lesson in negligence law (21 April 2017) (NZ)

Chapman Tripp

The building blocks for most claims in contract and negligence are deceptively simple - claimants...

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Time for leadership, not yet more reform (21 April 2017) (NZ)

Buddle Findlay

In 2015 the Productivity Commission began an inquiry into New Zealand's urban planning system....

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Does the law in Australasia support organisations archiving their email databases on the cloud? (20 April 2017) (NZ)

Wigley + Company

Archiving emails with cloud providers brings benefits such as cost efficiencies,searchability,...

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Click here to access all articles in the archive

Cases

Civil Procedure, Privacy

Christie v Molloy

Application by a journalist from the National Business Review (NBR), to access the Court file for the proceedings – the substantive hearing had not yet been held but the applicant relied on r 3.9 High Court Rules 2016 (HCR) (Access to documents during substantive hearing stage) and r 3.13 (permission to access ... court file ... other than at hearing stage) – he argued that the case was heard in open court, which meant the information was already publicly available - he said that the matter was of public interest because it involved a high-profile and wealthy New Zealander – whether the hearing had been held in open court; whether r 3.9 or r 3.13 applied - whether the request was made in the public interest or because the proceedings might be interesting to the public” - whether privacy considerations outweighed the principles of open justice.

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Bill of Rights, Civil Procedure, Family, Mental Health

AN (SC 24/2017) v Bupa Care Services (New Zealand) Ltd

Application for leave to appeal directly from the High Court (HC) to the Supreme Court (SC) and to allow the publication of the applicant’s name and identifying particulars – the applicant suffered from dementia -she resided in a rest home pursuant to orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 - the orders also restricted visits to the applicant in the rest home to times approved by its manager and the manager’s consent was required before the applicant could leave the home for trips or overnight stays (orders 3 and 4)– the applicant unsuccessfully applied to the HC for a writ of habeas corpus under the Habeas Corpus Act 2001 - whether the applicant had other, more appropriate avenues of redress to challenge the orders other than by habeas corpus - whether name suppression should be ongoing notwithstanding the applicant’s wishes.

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Contract, Insurance, Property

Miah v the National Mutual Life Association of Australasia Ltd

Appeal against the granting of summary judgment against the appellant on the grounds that it was not arguable that his deceased wife’s estate had been entitled to a 50 per cent benefit of a life insurance policy over her life – the appellant and his wife had two separate life policies, each of which named one spouse as the life insured and both as the policy owners – an owner was the person(s) named as Policy Owner in the Schedule and, if more than one, meant all such persons jointly - the appellant and his wife were named in the schedule as the Policy Owner – the wife was murdered in Bangladesh and shortly thereafter, the appellant became bankrupt with his interest in the policy being assigned to the Official Assignee (OA) – the OA had accepted the respondent’s avoidance of the policy and refused to assign the right to sue on the policy to the appellant– whether the policy was owned by the appellant and wife as tenants in common so that her share fell into her estate and he could enforce the policy as executor of her estate - in the alternative, whether the policy was held on a joint tenancy, which was severed on the appellant’s bankruptcy, so that the wife and the OA held the policy as tenants in common – whether the proceeding was a collateral attack on a finding in another proceeding that the OA’s refusal to assign the right to sue was not unreasonable.

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Criminal Sentencing, Resource Management

Hardegger v Southland Regional Council

Appeals from the District Court against a sentence of a fine of $35,700 for each of two appellants on charges under the Resource Management Act 1991 – the appellants argued that the fines were excessive – the charges related to works in relation to a river and creek on farm land – the land was owned by a family trust, which was one of the appellants – the other appellant was a beneficiary of the trust - the appellants said that the contractor was carefully supervised when undertaking the work – the contractor had written a letter claiming that he had carried out the work on his own initiative - whether the starting point failed to recognise the level of culpability by ignoring the environmental protection work carried out elsewhere on the farm – whether the Court should have given more weight to the contractor’s claims - whether the Court failed to take into account the dynamic nature of the environment and that fluvial alteration occurred naturally and comparatively frequently in the area - whether there had been an element of double penalty by failing to take into account the close relationship between the appellants and recognising that the same people would therefore ultimately pay the fines.

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Banking and Finance, Equity, Property

Napier v Torbay Holdings Ltd

Appeal against the finding in the High Court (HC) that the respondents were entitled to claim in money had and received for amounts received by the appellants from companies of which they were directors - the appellants argued that this cause of action was not available as the money had been taken from an overdrawn account and placed into another overdrawn account - whether money had and received was available where the accounts from which the money was taken were in overdraft, and the accounts into which it was paid were also in overdraft - whether the HC judge had reversed the burden of proof by requiring the appellants to justify the payments - whether the HC Judge had based a credibility finding on an unfair preference.

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Law Practitioners, Property

Standards Committee 3 of the Canterbury/Westland Branch of the New Zealand Law Society v Woulfe

Penalty decision following admission by the practitioner, Woulfe (W) of a charge of negligence or incompetence in his professional capacity to such a degree as to reflect on his fitness to practice or as to bring his profession into disrepute – the practitioner gave certifications as to the discharge mortgages and registration of new mortgages over properties in circumstances where he did not witness the signing the Authority and Instruction form and had not sighted the original copy(s) of identification - one of the signatures was forged – the client and its shareholders suffered significant loss as a result of a fraudulent financing transaction – the Standards Committee supported the imposition of a censure and costs - whether suspension should be imposed rather than a censure and costs.

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Criminal Procedure, Criminal Sentencing

Jackson v R

Appeals against a refusal to discharge the appellants - the appeals raised a common jurisdictional as to which was the first appeal court in cases of conviction or sentence appeals where an appellant had been convicted in the District Court (DC) following his or her withdrawal of an election of a jury trial, substituted by an election of trial by judge alone - one of the appeals raised an additional jurisdictional issue, as to whether an appeal against a refusal to discharge an appellant without conviction was an appeal against conviction, an appeal against sentence, or both – whether, for the purposes of the Criminal Procedure Act 2011 (CPA), the High Court or the Court of Appeal was first appeal court for an appellant who had withdrawn an election of a jury trial and substituted it with an election of trial by judge alone - whether an appeal against a refusal to discharge without conviction under s106 Sentencing Act 2002 (SA) was an appeal against conviction or against sentence.

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Intellectual Property

Omega SA (Omega AG) (Omega Limited) v Guru Denim Inc

Appeal against the decision of the High Court (HC) upholding the decision of the Assistant Commissioner of Trade Marks, that the respondent was entitled to registration of its trade mark in Class 14 (watches and jewellery) – the appellant was a Swiss watchmaking corporation and had a longstanding trade mark, which was the Greek letter for Omega with the word Omega below it – the respondent’s mark was not accompanied by words -the appellant relied primarily on 17(1)(a) (use ... likely to deceive or cause confusion), Trade Marks Act 2002 - the HC said that there would be no confusion because the Omega symbol would be recognised as the Greek character, there was little possibility of confusion – whether the Omega symbol and the Guru mark had a similar shape overall - whether that there was sufficient familiarity with the appellant’s word and symbol mark as a whole so that the use of they symbol alone could cause deception or confusion - whether the Judge erred by focussing on the alleged public awareness of the Greek Omega symbol.

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Civil Procedure, Family

Rabson v Gallagher

Application for leave to appeal - the applicant wished to appeal the Court of Appeal’s (CA) refusal to give clarification of its orders – following litigation under the Property (Relationships) Act 1976, the CA determined that the first respondent was entitled to payment of $1.2 million – its orders included provision for the parties to apply to the Court for clarification of any matter relating to the orders – the effect of the orders was that the applicant would receive less than 50 per cent of the relationship property pool if the net realisation from the sale three properties (after paying the respondent and the Court appointed trustee) was less than what was then anticipated – the applicant queried whether this was what had been intended by the Court – whether the orders had resulted in a miscarriage of justice.

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Criminal Sentencing

R v Harding

Sentencing on 11 charges brought under the Misuse of Drugs Act 1975 and the Crimes Act 1961 relating to manufacturing methamphetamine, conspiring to supply methamphetamine, possession for supply, supplying pseudoephedrine and participating in an organised criminal group (Headhunters Motor Cycle Gang) – guilty pleas had been entered a month before trial – the offender had no previous convictions for drug related offending - seven of the charges carried a maximum penalty of life imprisonment – the offender was considered to be the head of the methamphetamine operation - whether s8(c) Sentencing Act 2002 (principles of sentencing - must impose the maximum penalty if the offending was within the most serious of cases) applied – whether life imprisonment was the correct starting point.

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Defamation

Williams v Craig

Application to set aside a jury verdict which found that the defendant had defamed the plaintiff – both parties were involved in the political arena and the statements were made in the run up to the 2014 General Election – the plaintiff had approached several people and created a blog post that alleged that the defendant, the leader of a political party, had sexually harassed his former press secretary - the defendant made remarks about the plaintiff at a press conference (the Remarks) and then later in a leaflet that was distributed nationwide (the Leaflet) that were found to be defamatory - the jury’s award of $1.27m in damages for compensatory and punitive damages was 50% higher than the previous highest award – consideration of “defence to attack ” form of qualified privilege – whether the jury’s damages award was excessive and involved double counting by failing to address whether the Leaflet had caused additional damage to that caused by the Remarks - whether the jury had failed to take into account the broader context of freedom of political speech when considering the “defence to an attack” form of qualified privilege - whether there was any evidence to support the jury’s finding that the defendant had been motivated predominantly by ill will - whether the direction that the issue of whether the statements were relevant to the attack was a matter for the jury was a material mis-direction on the issue of qualified privilege.

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Bill of Rights, Immigration, Judicial Review, Statutory Interpretation

Fouda v Minister of Internal Affairs

Challenge to a decision of the respondent to cancel a New Zealand passport on the grounds the respondent was a danger to the security of a country other than New Zealand – the respondent had relied on s29AA Passports Act 1992 (“PA”) PA (proceedings where national security involved), s29AB PA (proceedings involving classified security information) and 29AC PA (ancillary general practices and procedures to protect classified security information) and classified security information – the applicant also challenged the application of a protocol recently agreed between the Chief Justice and the Attorney-General to apply to proceedings under these sections - the applicant had originally appealed against the decision but then pursued an application for judicial review instead – whether the PA closed-court procedures only applied to appeals, not to judicial review – whether closed-court procedures were contrary to the applicant’s rights to justice, to hear and challenge the evidence to be used against her – whether the applicant was entitled to discovery of the classified security information.

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Criminal Procedure, Media

Jolly v Television New Zealand Limited

Application to appeal or judicially review a District Court (DC) decision to grant an application by Television New Zealand Limited (TVNZ) to allow in-court video recording of the applicant’s up-coming sentencing hearing in the DC – the applicant had been subject to an Extended Supervision Order (ESO) in respect of sexual offending - he had removed his electronic monitor and was convicted of breaching the terms of the ESO – TVNZ requested permission to film for television, take still photographs and record audio of the sentencing – the applicant said that the decision was contrary to the “In-Court Media Coverage Guidelines 2015” (the Guidelines) in that it failed to take into account cl 2(e), namely the interest, concerns and perceptions of the parties, victims and witnesses - whether the Guidelines formed a jurisdictional basis for an appeal or whether the proceeding should have been initiated as one for judicial review - whether the judge had not taken into account the interest, concerns and perceptions of the parties, victims and witnesses.

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Costs, Criminal

Banks v R

Appeal against the High Court’s dismissal of an application under s5 Costs in Criminal Cases Act 1967 (CCCA) to recover trial costs – the appellant successfully appealed his convictions on the basis of fresh evidence – the evidence related to discussions held at a lunch around the structuring of donations to the appellant’s mayoral campaign and whether he had subsequently declared three payments to be anonymous when in fact he knew who the donor was – evidence from two people who had been present was later tracked down for the appeal – the appellant’s application under the CCCA alleged that the evidence of the main prosecution witnesses in relation to the donations had been shown to be fabricated and that deficiencies in the evidence of those witnesses could and should have been discovered earlier had proper inquiries been made - whether the subsequent evidence showed that the prosecution case was based on fabricated evidence – whether the evidence should have been discovered earlier by the prosecution.

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Family

Ministry of Social Development v BK

Application by the Ministry of Social Development (the Ministry) for a declaration that a child, at that point unborn, was a subsequent child under s14(1)(ba) Children, Young Persons and Their Families Act (CYPFA) (A child or young person is in need of care or protection... if... the child is a subsequent child of a parent to whom s18A applies...) – the child was one of four children – the three older children had been removed from their parents – the decision as to the status of the younger child depended on whether there had been a determination made in respect of the older children - it had been intended that they would be returned but at some point that decision changed – there was no hearing on this issue and there only was an annotation in the court file recording the decision – comments on a process by which the Court could confidently say that a person qualified pursuant to s18B(2) CYPFA - whether the Court had determined that there was no realistic prospect of the return home of the older children (s18B(2)(c)) - whether the phrase “kind of harm” in s18A(3) CYPFA, was the harm which led to a declaration application (s18B(2)(a)) or the kind of harm which led to the determination that there was no realistic prospect of the child being returned to that person’s care (s18B(2)(c)) - whether these provisions were retrospective, and therefore, on the face of them, limited by s7 Interpretation Act 1999 (Enactments do not have retrospective effect).

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Criminal Sentencing

Wade v Wade

Appeal against an order confiscating a vehicle on the basis that it was not owned by the defendant and that confiscation would cause the appellant undue hardship - the defendant was the appellant’s son who was sentenced charges of theft, and driving while suspended (3rd or subsequent offence) -the Judge ordered confiscation of the motor vehicle used in the offending under s129 Sentencing Act 2002 (SA) - the appellant claimed the vehicle been sold to him - the vehicle registration was changed after the offence was committed but before sentencing - the appellant alleged that his son had owed him money and had transferred the vehicle in satisfaction of his debts - s131(3) SA provided that if the court was not satisfied that a disposition of the motor vehicle was made with a bona fide intention to dispose permanently of his or her ownership or interest in the vehicle, the court could set the disposition aside - whether there had been a bona fide disposition to the appellant - whether the appellant would suffer undue hardship.

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Company

Chtouki v Ministry of Business, Innovation and Employment

Appeal against conviction on charges relating to breaches of the Companies Act 1993 (CA) – the appellant breached a notice prohibiting him from being a director of a company or taking part in the management of the company under s385(3) CA – the notice of an intention to prohibit was served by an official on the appellant’s lawyer but the lawyer could not recall if he had passed it on – the notice of prohibition was then posted to residential addresses provided by the appellant to the Companies Office in respect of the companies that formed the subject matter of the decision to issue a prohibition notice, but not to the address most recently provided by the appellant to the Companies Office – meaning of "last known address” - whether there was effective service in writing of either notice – whether service in the manner used had to be effected by the Registrar or Deputy Registrar and not by an official.

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Law Practitioners

ZA v YB

Review of decision to take no further action in respect of complaints about the practitioner, who had participated in a Standards Committee hearing which had later been quashed on judicial review – the court had found a breach of natural justice as the practitioner had sat on the Committee at a time he had made (live) complaints about the subject of the disciplinary process - the complainant said that the practitioner had brought the profession into disrepute - whether the use of the disciplinary process was an appropriate method for addressing the conduct of a lawyer as a member of a disciplinary body - whether a lawyer was providing “regulated services” when acting as a member of a Standards Committee - whether the Committee had wrongly adopted “bad faith” as a threshold for disciplinary intervention – whether a Standards Committee had a mandatory obligation to consider and respond to every submission made by a complainant.

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Family

McQueen v Penn

Application by the husband for leave to appeal against a judgment of the High Court (HC) relating to the award spousal maintenance – parties had enjoyed a high standard of living but the applicant said this was no longer the case – he argued that the HC had erred by finding that there was no onus of proof on the respondent to establish her entitlement for spousal maintenance under the Family Proceedings Act 1980 – further, it was said that in setting the maintenance the HC had applied an historic standard that was not proximate to the date of separation - whether an applicant for spousal maintenance carried an onus of proof to a civil standard to establish an entitlement for maintenance - whether the HC had failed to apply the appropriate standard of living to the amount ordered for spousal maintenance.

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Criminal, Criminal Evidence, Technology

New Zealand Police v B

Appeal by the Police against a District Court (DC) decision that a charge under s22 Harmful Digital Communications Act 2015 (HDCA) (causing harm by posting a digital communication) could not be sustained because the evidence was incapable of establishing the respondent had caused the complainant “harm” – the DC Judge said that while there was sufficient evidence to establish the respondent had posted a digital communication with intent to cause the complainant harm, and that communication would cause harm to an ordinary reasonable person in the complainant’s position, the evidence could not establish the communication caused “harm” to the victim, which the HDCA defined as “serious emotional distress” – observations about the definition of harm as serious emotional distress - whether the evidence established that the complainant had suffered harm.

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Legislation

Resource Management

Resource Legislation Amendment Act 2017 No 15

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