LawNews - Issue 41

NEWS Nov 17, 2023 Issue 41

Inside ■ COMMITTEES

Meet committee convenor Mark Colthart P10-11

■ LITIGATION

How true-to-life are legal TV dramas?

P12-13

Employment law litigants bedevilled by

thelawassociation.nz

COURT DELAYS

Contents 03-05 LITIGATION GRIEVANCE EMPLOYMENT

How delays in the employment jurisdiction are impacting access to justice

LawNews is an official publication of The Law Association Inc. Editor: Jenni McManus Publisher: The Law Association Inc.

06-07 INDIGENOUS ENVIRONMENT BIODIVERSITY

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.McManus@thelawassociation.nz

Tough new biodiversity rules for landowners

Reweti Kohere 09 306 3997 Reweti.Kohere@thelawassociation.nz

08-09 REGULATION DEATH PROSECUTION

Case note: WorkSafe New Zealand v Whakaari Management Ltd

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@thelawassociation.nz All mail to: The Law Association Inc., Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010. PO Box 58, Shortland Street DX CP24001, Auckland 1140, thelawassociation.nz

14-16

Photo: Tetra Images/Getty Images

FEATURED CPD

Write for LawNews LawNews welcomes commentary and opinion pieces from The Law Association Inc. members and readers. We ask that contributions are civil in tone, factually correct, well-written and logically argued – and fewer than 800 words. And we won’t publish anonymous commentary.

Any questions, please email the editor at: Jenni.McManus@thelawassociation.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 The Law Association Inc., and available by subscription to nonmembers for $140 (plus GST) per year.

To subscribe, please email reception@thelawassociation.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 The Law Association Inc. or its members.

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

Cover: Westend61/Getty Images

02

Nov 17, 2023 Issue 41

EMPLOYMENT LAW

Chief Judge: employment lawyers, institutions must ‘go back to the drawing board’ to address court delays It can’t possibly be right that [access to justice is] the preserve of somebody who has $60,000 in their bank account to pay a lawyer. Where’s the access for everybody else?

We all need to go back to the drawing board and look at what we’re doing, why we’re doing it and how we’re doing it, to see if it actually marries up with parliamentary intent

Reweti Kohere Employers and employees continue to face “inordinate” delays in having their cases heard, despite the Employment Relations Authority clearing a backlog of unallocated claims built up during covid-19.

Employment lawyers say the logjam has not improved in the face of new appointments to the specialist employment dispute resolution body. And there is mounting concern that the authority is not as “nimble, procedurally lean and technically unencumbered” as it is meant to be.

The delays are fundamentally about access to justice – a problem that is “deeply concerning”, in Chief Employment Court Judge Christina Inglis’ view. In an interview with LawNews earlier this week, Chief Judge Inglis said she hadn’t seen significant improvements for many years, although an answer lies in the statute governing the jurisdiction.

Prompt justice is important, Chief Judge Inglis tells LawNews. All Employment Court judges acknowledge that their decisions affect people’s livelihoods. “We need to be prompt in getting our decisions out, to give them certainty and to allow them to move on with their lives,” she says.

In enacting the Employment Relations Act 2000, Parliament saw a benefit in people resolving their employment disputes at an early, informal stage through specialist institutions. The long-standing issue of delays runs counter to the underlying objectives of the statute.

Chief Judge Inglis suggests the institutions and practitioners should reread the Act. Equipped by lawmakers with significant latitude to determine their preferred operating model, “we all need to go back to the drawing board and look at what we’re doing, why we’re doing it and how we’re doing it, to see if it actually marries up with parliamentary intent”, she says. “And if it doesn’t – which I think is the real question – then each of our institutions and others need to think about revamping.”

The chief judge is all too aware of the risk of justice being denied. In an extra-judicial speech from April 2021, she said a right without practical access to a remedy “is hardly a right worth having”. Chief Judge Inglis tells LawNews that the court sees “a tiny tip of the iceberg” of would-be litigants. “Where’s the access for everybody else?” she asks. “If they want to test their legal rights and remedies, how do they get to court? It can’t possibly be right that it’s the preserve of somebody who has $60,000 in their bank account to pay a lawyer.”

Having built up a “complex, expensive and adversarial-type model” of dispute resolution that largely borrows from the ordinary courts, the employment law institutions have strayed away from their legislative objectives. “You can’t have simplicity if you’re going to be requiring people to jump through multiple procedural hoops,” the chief judge says. While procedure and process may have been prioritised over substance, the Act is

Continued on page 04 03

Photo: kbeis/Getty Images

Personal grievances are being taken at a cost of tens of thousands of dollars and the issues of expense and delay place justice out of reach for New Zealanders

04

Continued from page 03

clear about its preference. “We’re talking about behaviours and values and relationships,” she says. “We need to get back to basics if we’re going to deliver on parliamentary intent.”

The stats The Authority says it issues an overwhelming majority of determinations within its statutory three-month deadline.

According to its latest annual report, the number of decisions issued by deadline in 2020 sat at 91%, dropping to 90% in 2021 and 88% in 2022. At the same time, the number of determinations issued out of time has risen from 9% in 2020, to 10% in 2021 and 12% last year.

Under the Act, the Authority must give either an oral decision or indication of preliminary findings wherever practicable, although determinations can be reserved if good reasons exist. The Authority has three months to issue a reserved decision from the date on which the investigation meeting finished or on receipt of the last evidence or information – whichever is later. The chief of the Authority, Dr Andrew Dallas, can extend the deadline if there are exceptional circumstances.

The Employment Court expects to deliver 90% of its judgments within three months. In the first six months of 2023,

the court delivered: ■ 72% of judgments within one month (73% in 2022 and 71% in 2021); ■ 93% within three months (90% in 2022 and 94% in 2021); and ■ 7% of judgments out-of-time (10% in 2022 and 6% in 2021).

The expectation of timeliness is informed by s 222A, which requires the chief judge, in consultation with the chief justice, to periodically publish information about the number of judgments considered outstanding beyond a reasonable time for delivery and publish information about reserved judgments that are considered useful. Since January 2021, Chief Judge Inglis has publicly notified three judgments under the provision.

At present, no case has fallen into this category.

A perfect storm The Authority “confronted something of a perfect storm” of circumstances in early 2020, Dallas says in the annual report. Covid lockdowns forced adjournments that prolonged proceedings. And an influx of new cases (as many as 600 more applications than in 2019), together with an insufficient number of members, persistent vacancies and reduced access to mediation services stymied efforts to lessen the backlog.

Continued on page 05

Nov 17, 2023 Issue 41

We need to be prompt in getting our decisions out, to give [litigants] certainty and to allow them to move on with their lives

Chief Employment Court Judge Christina Inglis

Continued from page 04

Nearly two years later, with new members onboard and its “workload equilibrium” restored, the Authority managed to clear its allocation backlog, Dallas says.

Fewer applications were lodged in the Authority in each successive year between 1 January 2020 and 31 December 2022, the report states, as the specialist body issued an increased number of decisions. Compared to the 2,475 applications made in 2020, some 2,114 were received in 2021 and 1,970 in 2022. In the same period, the Authority issued 539 decisions in 2020, rising to 581 in 2021 and 689 in 2022.

No statistics of active cases were given. Personnel-wise, 30 members made up the Authority between 2020 and 2022; six members resigned and 15 were appointed.

In the Employment Court, 157 new cases were filed in the financial year ending 30 June 2023 – down four from the previous financial year. The court disposed of 203 cases, one more than the last financial year, and 140 cases remained active – eight fewer than the previous year. Chief Judge Inglis told LawNews the number of cases coming before the court, including the age of active cases, has remained “fairly consistent” over the past few years. On average, about 71% of cases in the system are younger than 12 months and the age of active cases in days is largely returning to pre-pandemic levels, she says. “I’m pretty confident that we deal promptly with our cases.”

The various Auckland lockdowns also delayed matters in the Authority as more than 200 in-person hearings were adjourned, often without a new hearing date set down. Dallas says allocating new files had to be managed to ensure the backlog “did not completely blowout”. As the only civil tribunal or court to keep offering in-person hearings during the pandemic, however, the Authority could “tread water rather than drown under the weight of our backlog”, he says.

“By April 2022, as a result of some excellent mahi by members and increased resourcing, we were able to achieve workload equilibrium when all remaining files awaiting allocation were referred to members. Quite the contrast to a year previously, when the number of files awaiting allocation to members was approaching 500.”

While frustrated by the pandemic, the Authority can again become a world-class employment tribunal with no allocation backlog and increased resourcing, Dallas says. “The Authority is a nimble, procedurally lean and technically unencumbered tribunal. The new jurisdictions with which the Authority has recently been invested, demonstrate confidence in the institution.” The 2023 annual report is expected in the first quarter of 2024.

Simply waiting Delays exist elsewhere in the system though. A cursory search of the Authority’s decisions database reveals that at least three determinations, issued toward the end of October 2023, date back to the first quarter of 2022 when personal grievances were first raised. Following receipt of further information, all three decisions were issued within the three-month deadline.

The 2020-2022 annual report suggests the Authority’s operations are working “fantastically”, an employment lawyer tells LawNews, “but it doesn’t work like that in practice”. A recent authority determination for one of his clients came two and a half years after raising the personal grievance. The decision was issued mere days after receipt of the last evidence.

The lawyer, who spoke only on condition of anonymity, says the time the specialist body is taking to resolve employment disputes is still “inordinate”, although he concedes the Authority is a better alternative to the former Employment Tribunal, which fell into disrepute in the 1990s and was abolished because it was too slow and too procedural. He remembers decisions would take a year to be released, or even longer.

The Employment Tribunal began its work in 1991 as a firstinstance body tasked with mediation and adjudication under the then-National government’s Employment Contracts Act 1991. The Labour government’s Employment Relations Act aimed to change the dispute resolution process by putting fairness, reasonableness and good faith front and centre of the employment relationship.

It was accepted that employment disputes would be inevitable and therefore were best addressed as promptly and as informally as possible. Dispute resolution would be shaped like a pyramid: considerable emphasis would be placed on mediation as the primary means of resolving the bulk of issues, with unresolved matters going to the investigative authority and then the Employment Court (and Court of Appeal). Parliament conferred a broad discretion on each institution to adopt a range of fit-for-purpose practices in pursuit of their statutory objectives.

The Authority’s role has also expanded considerably since 2000. Most recently, Parliament empowered the body to facilitate collective bargaining and to fix terms and conditions for pay equity settlements under the Equal Pay Amendment Act 2020 and collective agreements under the Screen Industry Workers Act 2022 and Fair Pay Agreements Act 2022. An increased jurisdiction has meant more work: the Authority in 2020 accepted five applications to facilitate collective bargaining disputes and declined two. Six applications were accepted in 2021, and 11 last year. Not one was declined in 2021

Continued on page 19 05

RESOURCE MANAGEMENT/ENVIRONMENT

A new paradigm for protecting New Zealand’s flora and fauna Compensation for landowners whose use of land would be curtailed by greater protection of indigenous biodiversity had been thought to be one of the sticking points

Richard Gardner & Mike Doesburg Perhaps known only to those schooled in the dark arts of resource management and environmental law, significant changes have been made to the way New Zealand’s indigenous biodiversity is to be managed.

The National Policy Statement for Indigenous Biodiversity (NPS-IB) became part of the country’s law on 4 August, its approval by the Governor-General having been gazetted four weeks earlier, on 7 July.

The lack of a National Policy Statement on Indigenous Biodiversity has long been thought to be a gap and there have been several attempts over the years to get it off the ground. Previous attempts failed because of landowner opposition and the complexity of competing interests.

This NPS-IB is the result of a collaborative process, initiated by the Royal Forest & Bird Society of New Zealand. Working with Federated Farmers, the society gained the ministry’s approval and drew together a number of other sector groups, including the Environmental Defence Society, iwi, agriculture industry groups and the Forestry Association, and began work six or seven years ago.

The release of the NPS was tucked away in a media statement about an upcoming public consultation on “a national biodiversity credit system to support landowners” (preliminary consultation is now under way).

Compensation for landowners whose use of land would be curtailed by greater protection of indigenous biodiversity had been thought to be one of the 06

■ recognising the mana of tangata whenua as

As a National Policy Statement, the NPS-IB sits at the top of the hierarchy of planning documents under the Resource Management Act 1991

kaitiaki of indigenous biodiversity; and ■ recognising people and communities as stewards of indigenous biodiversity; and ■ protecting and restoring indigenous biodiversity as necessary to maintain indigenous biodiversity; while ■ providing for the social, economic and cultural wellbeing of people now and into the future.

Notable amongst the policies are:

■ policy 1, which requires indigenous biodiversity sticking points holding up release of the NPS-IB, which arose out of the collaborative way the document was put together.

Top priority As a National Policy Statement, the NPS-IB sits at the top of the hierarchy of planning documents under the Resource Management Act 1991 (RMA). Councils must give effect to the NPS-IB when formulating their planning rulebooks for their districts or regions and decision-makers must have regard to the NPS-IB when making decisions on resource consents and other environmental approvals.

The NPS-IB provides preliminary provisions, an objective and policies (17 brief policy statements), an implementation framework and detail on timing (plus appendices). In short, the objective the NPS-IB seeks to achieve is the maintenance of indigenous biodiversity to a “no overall loss” state, to be achieved through:

to be managed in a way that gives effect to a set of decision-making principles, which are set out as part of the preliminary provisions. These principles require, inter alia, the mauri, intrinsic value and wellbeing of indigenous biodiversity to be prioritised, the principles of the treaty to be taken into account and te ao Māori and mātauranga Māori to be applied.

■ policy 2, which provides for tangata whenua to exercise kaitiakitanga for indigenous biodiversity in their rohe, including through managing biodiversity on their own land and actively participating in other decision-making about indigenous biodiversity.

Other policies provide for:

■ a precautionary approach to be adopted when

Continued on page 07

Nov 17, 2023 Issue 41

Continued from page 06 considering adverse effects on indigenous biodiversity; ■ indigenous biodiversity to be managed in such a way as to promote resilience to the effects of climate change; ■ significant indigenous vegetation and significant habitats of indigenous fauna to be identified as SNAs (significant natural areas); and ■ the importance of maintaining indigenous biodiversity outside SNAs to be recognised.

Implementation The NPS-IB has a detailed implementation framework, which provides “a non-exhaustive list of things that must be done to give effect to the objectives and policies”. The three sub-parts set out: ■ the general approaches to implementation, including involving tangata whenua as partners in the management of indigenous biodiversity; provisions relating to identification and management of SNAs and management of indigenous biodiversity outside SNAs; ■ specific requirements that relate to indigenous biodiversity – for example, requirements relating to specified highly mobile fauna; and ■ exceptions for specified Māori land, and requirements relating to indigenous species, populations and ecosystems that are taonga.

At the core of the NPS-IB is a requirement that territorial authorities (district councils) must map and protect SNAs, including SNAs they are aware of when preparing their plans but also SNAs they subsequently become aware of. With limited exceptions, any new subdivision, use or development that is in or affects an SNA must avoid adverse effects on the SNA.

In terms of coverage, the NPS applies only to the terrestrial environment (ie, to land above Mean High Water Springs, excluding land covered by water, waterbodies and freshwater ecosystems). Biodiversity in the coastal marine area and on land covered by freshwater continues to be managed under other National Policy Statements (the New Zealand Coastal Policy Statement and National Policy Statement for Freshwater Management), though biodiversity strategies prepared by regional councils can address biodiversity in these areas.

A long-standing challenge in resource management planning has been responding to highly mobile fauna, which have dispersed habitats. Case-bycase resource consenting decisions can cause “death by 1000 cuts”.

The NPS-IB responds to this issue by requiring regional councils to record areas outside SNAs that are highly mobile fauna areas (for identified highly mobile species), including by working with tangata whenua, landowners, territorial authorities and the Department of Conservation. Councils must include provisions in their planning rulebooks about the way the adverse effects of new subdivision, use and development on highly mobile fauna areas will be managed.

Finally, the new NPS sets up biodiversity compensation and biodiversity offsetting regimes, both defined, requiring net gain (as opposed to no net loss). Existing activities – such as grazing – can continue and the NPS provides for indigenous biodiversity to be “managed within plantation forestry while providing for plantation forestry activities”. This was another of the sticking points thought to have held up the release of the NPS.

Comment The NPS-IB has been welcomed by Forest & Bird and the Environmental Defence Society, which see

it as a great step forward for protecting nature while providing certainty to landowners, farmers, growers, tangata whenua, forest owners and others. However, Federated Farmers now sees it as paving the way for uncertainty, increased costs, perverse outcomes and less effective management of native flora and fauna on private land.

The full impact of the NPS-IB remains to be seen, as planning processes need to run their course to identify SNAs and implement objectives, policies and rules for SNAs and highly mobile fauna areas. Importantly, the NPS-IB identifies a number of activities and sectors where it does not apply, including a blanket exception for renewable electricity generation and more limited exceptions in the case of Māori land and forestry.

This raises the obvious question – why is loss of indigenous biodiversity tolerated in some sectors and for some classes of activity, but not others?

Noteworthy also are some of the contentious issues the NPS-IB has left unaddressed, probably the most prominent being the lack of some sort of compensation regime. SNAs in production forestry in the coastal environment will continue to cause problems for foresters, given that the highly directive biodiversity policy in the New Zealand Coastal Policy Statement will prevail over the NPS-IB’s more permissive regime in those areas. ■ Richard Gardner is a barrister practising in the fields of environmental law, local government, public administration and rural law. He is a member of The Law Association’s Environment and Resource Management Law committee.

Mike Doesburg is a partner in Wynn Williams’ environment and local government team and is co-convenor of The Law Association’s Environment and Resource Management Law committee ■

Polishing

PowerPoint Presentations PowerPoint skills training for legal professionals

Wednesday 6 December | 1.00 – 2.15pm Webinar | 1.25 CPD hours

CPD 07

CASE NOTE

Whakaari White Island defendant convicted of major health and safety failure Reweti Kohere Health and Safety at Work Act 2015 – Whakaari White Island – person conducting a business or undertaking – workplace – reasonably practicable – other persons

WorkSafe New Zealand v Whakaari Management Limited [2023] NZDC 23224 Located in the eastern Bay of Plenty, Whakaari White Island is often described as New Zealand’s most active volcano. On 9 December 2019, another mark was notched in the island’s eruptive history. Ashore that day were 47 people: 42 paying tourists and five tour guides employed by commercial tour operators. All were on the crater floor when Whakaari erupted.

The eruption was driven by steam that’s generated when water beneath the ground or on the surface is heated by volcanic activity. The explosion created what’s known as a “base surge” – the erupting column collapsed in on itself, resulting in a flow of ash, steam, volcanic gases and rocks that surged across the crater floor. Twenty-two people were killed; the remaining 25 were injured, most seriously. Many survivors still suffer.

After the eruption, workplace health and safety regulator WorkSafe started an investigation, ultimately charging 13 defendants under the Health and Safety at Work Act 2015.

Six have pleaded guilty; six have had their charges dismissed.

Whakaari Management Limited (WML) remained.

Whakaari Trustees Limited owned and leased the island to WML, which was responsible for managing Whakaari. In return for money, WML granted various tour operators access to the island to run commercial walking tours. Licensing the island was WML’s only activity; WML ran no other business on the island, including tours, and had no staff or permanent presence on Whakaari or nearby Whakatāne.

Being a “person conducting a business or undertaking” (PCBU), WML was charged under ss 37(1) and 36(2) of the Act. The thrust of WorkSafe’s case was that WML’s failures to comply with its duties exposed individuals to a risk of death or serious injury arising from volcanic activity.

08

Admissibility of evidence A preliminary issue was whether WorkSafe improperly obtained evidence in the form of an interview that WML had to give as part of the regulator’s investigation, and whether it should still be admitted.

WML accepted that s 168(1)(f) empowered WorkSafe to compel an interview, but challenged the regulator’s power to compel attendance at a certain place or time. Judge Evangelos Thomas agreed with WML – the provision didn’t expressly permit it, nor was it necessary to infer the power when s 176 obligated PCBUs to give all reasonable assistance to inspectors.

Having found impropriety, Judge Thomas balanced it against the need for an effective and credible system of justice, concluding that the interview was nonetheless admissible.

WorkSafe hinted at being flexible with the interview location and dates, and after further discussions ultimately agreed to interview WML in Auckland (a location easier on all three of the company’s directors as they lived there). Moreover, the public interest in ensuring a fair prosecution went ahead was high and WML faced “significant jeopardy” in respect of the charges it faced, with the maximum fines being significant.

Section 37 PCBUs who manage or control a workplace must ensure, so far as reasonably practicable, that the workplace, its entry and exit, and anything arising from it are without risks to the health and safety of any person.

WML claimed WorkSafe insufficiently pleaded that Whakaari was a workplace as the charge needed to specifically identify the workplace for the court to determine how much control or management WML had over it – if any. A workplace is a place where work is being or is customarily carried out for a business or undertaking and includes any place where workers go or are likely to be while at work. Conducting walking tours on Whakaari was the work of the tour operators, the judge said, and where they then carried out those tours constituted the relevant workplace.

Continued on page 09

Nov 17, 2023 Issue 41

Photo: Tim Clayton / Getty Images

“Every landowner can control access to their land. Did Parliament intend every landowner to be caught by the section? Some landowners might do very little to control access to their land, others may do more. Was what WML did enough to amount to control and management of the workplace?”, Judge Thomas asked.

WML’s argument – that the tour operators were responsible, not the landowner – was “too simplistic”. While zipline or ski operators, for example, would provide “the thrill” of riding a zipline or skiing, Judge Thomas said the active volcano of Whakaari was the product. “Exposure to it is the recreational activity. It is both the hazard and the thrill. WML’s business was to provide that.”

The court found WML had active control or management of the workplace.

Failure to comply

Continued from page 08 WML argued it didn’t manage or control the workplace enough to be caught by the charge. The words of the provision – “manages or controls” – were broad and far-reaching, the judge said. Parliament’s intention in passing the Act showed lawmakers were more concerned with PCBUs that managed or controlled workplaces in a “practical sense”, instead of those that “merely have an ability to”.

“To be caught by s 37, a PCBU must in fact be exercising active control or management of the workplace in a practical sense. Owning it is not enough. Making money from it is not enough. Merely being able to manage or control a workplace, but not doing so, is not enough,” the judge said.

WML was no passive landowner. It generated income by enabling commercial walking tours on Whakaari; entered into licence agreements, under which it had termination rights upon breaches; maintained a “direct and continuous” relationship with tour operators; engaged with them and other stakeholders interested in increasing tourist numbers to Whakaari; and had occasional direct engagement with WorkSafe and GNS. WML argued its involvement was limited to dealing with access and that no workplaces existed until the tour operators determined their location and started taking tourists there.

WML claimed it had no influence or control over deciding where tour operators’ workplaces would be, other than in setting the geographic boundaries. Evidence showed that workplaces on Whakaari were under the management and control of those who used them.

The mere failure to take reasonably practicable steps didn’t necessarily mean WML had failed in its duty, the judge said.

The company was obligated to ensure the health and safety of persons weren’t put at risk. If it met that duty without taking some or all these steps, it would have still complied with the law.

WorkSafe didn’t argue WML had to eliminate the risk of an eruption as far as was reasonably practicable. Rather, the company failed to minimise the risk as far as was reasonably practicable. WML submitted it didn’t “permit” people to be on Whakaari; it only granted licences to tour operators, who decided who came onto the island. Judge Thomas disagreed, saying, “The broad permission WML gave to permit tours is still the act of permitting. Without WML’s permission, no tourist or guide would have been able to visit Whakaari.”

GNS had always maintained it could never predict an eruption of Whakaari, of which WML was aware. Therefore, taking tourists to the island exposed them to this risk. Engaging in the necessary expertise to assess the risk was fundamental to WML complying with its duty and ensuring safe tours. Because of the variable and unpredictable conditions and characteristics of the island, which affected the nature and predictability of an eruption, WML had to continually assess risk, the judge said – a reasonably practicable step for the company to take. “WML did not do that.”

WML did understand the risk but argued it wasn’t reasonable for the company to take steps that had already been done by others. Health and safety duties always remained with a PCBU though; they weren’t transferable, the judge said. But what steps were necessary could be affected by those already taken by others. In respect of GNS, WML’s engagement wasn’t enough to relieve it of the need to ensure the necessary risk assessments

Continued on page 18 09

COMMITTEES

Meet Mark Colthart, convenor Property Disputes Committee As a result of falling property values, I’ve seen more cases in the past year where purchasers are either unwilling or unable to settle purchases made off the plans Brenda Newth Where do you work, what’s your role?

I am a barrister at FortyEight Shortland Barristers and split my time between working as a barrister and working as an arbitrator and adjudicator. I now do more work as an arbitrator and adjudicator, while continuing to work as a counsel in my specialist areas of property and construction disputes.

FortyEight Shortland has grown since my last profile in 2019. We recently passed our fifth anniversary and we’ve grown from the original seven members to 15. We all practise in civil litigation and cover a wide range of areas, including construction, property, insolvency, trusts and estates, relationship property, insurance, resource management and general civil and commercial disputes.

Ultimately, I want to work exclusively in arbitration and adjudication. I’ve been heavily involved in the past five years in construction and commercial lease arbitrations, so that’s been a continuing source of new appointments as I’ve become more well-known within the profession in those areas.

Where did you study?

I completed my undergraduate degrees at the University of Canterbury. I graduated in 1994 with a BA, majoring in psychology, and an LLB. At Canterbury I was fortunate to study under some of the leading academics in contract and tort law, such as John Burrows and Stephen Todd. In the late 1990s I returned to study part-time at the University of Auckland where I completed an LLM (Hons) in 2001.

The focus for my masters was the law of commercial obligations, which is the area I have been most interested in over the past 20 years.

I also studied for the Fellowship in Arbitration with the Arbitrators and Mediators Institute of New Zealand (AMINZ). In 2012, I became a Fellow of AMINZ and a 10

Fellow of Chartered Institute of Arbitrators (CIArb) in the UK. More recently, I was admitted as a Fellow of the Australian Centre for International Commercial Arbitration (ACICA).

I’m currently enrolled with Te Wānanga o Raukawa, studying for my Level 5 certificate in Te Reo Māori.

What’s been your career to date?

I was admitted to the bar in 1994. I started work in a small law firm in Manukau City called Lyon Lucas, where I worked across a broad range of civil litigation, family and criminal matters. I cut my teeth as a litigation lawyer in the District and Family Courts at Otahuhu, Papakura, Auckland and North Shore, and appearing before the Masters in the Auckland High Court list courts. When I look back, I can honestly say that I loved every minute of it.

In the late 1990s, I moved from Lyon Lucas to a firm in Auckland City and in the early 2000s I became a partner in Knight Coldicutt and developed a specialty in property and construction litigation and arbitration.

I finally joined the independent bar in 2006, where I have been ever since. It’s hard to believe that more than 17 years have passed since I joined the bar. I have no idea where the time has gone.

Mark Colthart

Many years ago, when I was in my 20s, I joined the Civil Litigation and Courts committee. I joined the Property Disputes committee when I went to the bar about 17 years ago. I became the convenor of the Property Disputes committee about six or seven years ago, when I took over the role from Joanna Pidgeon when she became ADLS President.

is to be a forum and an outlet for members of the profession to have a say on law reform and through the select committee submission process.

Committees play an important role in the leadership of the profession.

The Property Disputes committee is slightly different. We provide a property dispute service to Law Association members, where we determine propertyrelated disputes. All our members (12 currently) are experienced property lawyers. About two-thirds of our committee are practising transactional property lawyers and the remaining third are property dispute specialists, litigation lawyers and barristers. We convene the committee when we receive a referral of a dispute from two practitioners, with an agreed statement of facts. Our job is to determine the dispute and issue a binding ruling. We meet on average between four and six times a year, based on demand.

The kind of issues we consider can be complex and often involve disputes around the time of settlement of a residential or commercial property transaction. But our work isn’t limited to transactions.

We have determined disputes relating to obligations

Why is committee work important?

Continued on page 11

How long have you been involved with The Law Association committees and which committees have you worked with?

For general committees, the most important thing

Nov 17, 2023 Issue 41

Continued from page 10 under commercial leases and we also consider property disputes of a more general nature, such as boundary disputes. We also publish a rulings manual, where we summarise and catalogue disputes we have ruled on. A first step for any Law Association member considering bringing a dispute to us is to check the rulings manual to see if we have ruled on a similar issue previously. The feedback we have had from the profession is that the rulings manual is a valuable resource for property practitioners.

How do you see the role of a committee convenor? What specific skills do you think a convenor needs?

I see my role as essentially bringing together a group of experienced and knowledgeable members of the profession who are keen to contribute and really get the most out of our committee members. It’s fundamental to ensure everyone on the committee has a voice and equal participation in what we do, in order to harness the combined knowledge of the group. A convenor needs the skills to facilitate good healthy discussions and debate amongst a highly knowledgeable and experienced group of practitioners who will all have valuable input. Importantly, there will be different perspectives, so it’s the convenor’s job to bring out those differing points of view and ultimately reach agreement on how to move a particular issue forward.

What is your biggest frustration as a convenor?

For me, during the covid years when committee meetings all went online, it has been missing that personal connection. But that is balanced by the fact that we’ve had to learn how to use online meeting technology. It’s pertinent for The Law Association to have committee members from outside Auckland and it has meant we’ve been able to expand the membership of our committee. We have committee members from Dunedin, Christchurch, Wellington and Waikato, as well as Auckland, so it is possible to bring in members from other parts of the country and still meet. So that’s the bonus.

What’s been the most notable achievement or biggest focus of your committee during the past few years?

Why was that important?

The thing that comes to mind is our current review of the rulings manual, which is nearly complete. We expect to publish the updated manual before the end

of the year. The last review was undertaken in 2016 and since then we have determined a significant number of disputes and there have been updates to the ADLS/ REINZ agreement for sale and purchase, as well as changes to legislation and case law to take into account.

The review has involved a lot of work and I would especially like to acknowledge the members of the working group undertaking the review: John Millar, Tina Hwang, Hermann Grobler and our editor, Alan Clark.

During the past year, has your committee made submissions on a parliamentary bill or any consultation paper?

Due to the nature of our committee’s core role, we haven’t made any submissions. But one of the innovations this year has been greater liaison between committees. Our committee has met with members of the Property Law committee and the Resource Management and Environmental Law committee.

One of the things we have been wanting to do is work more closely and collaborate with those committees where they’re making submissions.

What would you say to anyone thinking of becoming involved in a Law Association committee?

I’d encourage anyone interested to get involved and to do so early in your career. You don’t need to have 20 years’ experience. In fact, committees are more vibrant when they’re comprised of people with a wide range of experience and views. Often newer members will bring a fresh perspective, which is great. So don’t be shy!

What’s the biggest issue facing your practice area? And how does that affect lawyers and their clients?

First, the huge weather-event disruptions earlier on this year in Auckland, Coromandel, Tairāwhiti and Hawke’s Bay had a significant and, in some cases, ongoing impact on property transactions and property lawyers. Second, at an economic level, high interest rates, inflation and falling property values have had a big impact on the property market.

Hopefully we are now through the worst of that and will see the pressures ease next year.

As a result of falling property values, I’ve seen more cases in the past year where purchasers are either unwilling or unable to settle purchases made off the plans. That’s led to more disputes around settlements.

The other part of my practice that’s very busy is on the construction side. We’ve seen a huge escalation in the cost of materials and labour. That caused real pressure on building projects and has led to a number of disputes around the price of construction work.

While it seems that those very rapid cost increases of materials have eased significantly, there is still price pressure on all construction projects, which has also led to a lot of work in that area of my practice.

What’s the best-kept secret about The Law Association?

There are a few. There is the great support from Law Association staff who are very helpful and friendly. There is the fact that The Law Association is very much a national organisation now. That’s not necessarily a secret, I suppose but it’s a real strength that some practitioners may not fully appreciate yet.

And finally, the Property Disputes committee. The disputes service we offer, and access to the rulings manual, which is a useful guide for practitioners when they find themselves in a tricky situation. We’d like Law Association members to be more aware of those things.

What is the biggest issue facing the legal profession right now?

The outcome of the independent review of NZLS is a really big one and the uncertainty as to where that will go. At least one of the key underlying issues is the effort we need to make to restore the public’s confidence in the profession. And I think one of the things coming through the independent review was the public’s perception that the self-regulatory model we have is really lawyers policing lawyers. We do need to further enhance the reputation of the profession in the eyes of the public.

What is your vision for the legal profession in 2050?

I want to see the profession continue to develop so it remains a highly skilled, highly trusted and relevant profession clients value and rely on. I’d also like to see the profession to continue to become more diverse, open and modern. I want it to continue to evolve in that direction.

What do you think The Law Association could do to improve its offering to members?

I think The Law Association could look to work more closely with NZLS so the two organisations can complement and support each other, focusing on each organisation’s strengths. So, rather than practitioners seeing the two organisations as somehow in competition with each other, seeing them instead as being mutually beneficial. ■ To find out more about The Law Association’s committees, please contact Daniel.Conway@thelawassociation.nz or Moira.McFarland@thelawassociation.nz ■ 11

LEGAL PROFESSION

No gavels, no hearsay and lots of drinking: a law expert ranks legal dramas by their accuracy Most legal dramas are terrible at capturing the realities of law Dale Mitchell

The drama of trial is not something anyone should yearn for

From Elle Woods in Legally Blonde to Jennifer Walters in SheHulk, Atticus Finch in To Kill a Mockingbird to Denny Crane in Boston Legal, our popular culture is often where we first see and witness legal practice.

Sometimes this comes via the silver screen; other times television. But it would be wrong to think all we see on legal television shows is accurate – even when it claims to capture reality.

Most legal dramas are terrible at capturing the realities of law.

Not accurate: Law(less) and (dis)Order Law and Order (1990-) innovated television drama by showcasing both the investigation of a crime by police and then its prosecution in court. With its multiple spin-offs, including Law and Order: Special Victims Unit (1999-) and the short-lived Law and Order: Trial by Jury (2005-2006), which had the best theme song of all the series, the Law and Order franchise is a televisual legal juggernaut.

As with most serials, Law and Order presents the criminal justice system as moving quicker than you can say dun dun.

This couldn’t be further from the truth. The mean duration of criminal law matters in Australian higher courts was almost one year (50 weeks) across 2021-22.

While procedural rules in civil matters require courts to facilitate the “just and efficient resolution of disputes at minimum expense”, in criminal law, speed and efficiency must not be prioritised over accuracy: a person’s liberty is at stake.

12

Most criminal matters do not proceed to a full trial as an accused will often plead guilty to the charges. As a result, the matter proceeds to sentencing without prosecutors needing to prove the offence. The rates of this occurring are quite alarming. Data across 2021-22 reveals more than 75% of defendants in Australian courts entered a guilty plea and almost four in five criminal convictions (79%) resulted from a guilty plea.

Research suggests defendants plead guilty for a variety of reasons, including to avoid the cost of a trial and to receive a lesser sentence. Data from the United States suggests the pressures of the pandemic led to innocent people pleading guilty to crimes they didn’t commit.

Read more: Pandemic pushed defendants to plead guilty more often, including innocent people pleading to crimes they didn’t commit If Law and Order were a more accurate reflection of criminal law, matters would proceed immediately to sentencing due to guilty pleas. And should an accused be found guilty, a chunk of his or her sentence would be reduced by time served awaiting trial.

Not accurate: Suits Suits (2011-19) centres around law firm partner Harvey Specter (Gabriel Macht) and his mentorship of Mike Ross (Patrick Adams) – the “lawyer” who never graduated law school and provides legal advice thanks to his photographic memory.

This is, obviously, a brutal ethical breach for all involved, and clearly fraud. In Australia, law students who present themselves to be lawyers are subject to sanctions by the Legal Services

Continued on page 13

Nov 17, 2023 Issue 41

Photo: Mireya Acierto / Getty Images

Continued from page 10

Gabriel Macht as Harvey Spector

Thankfully, there’s not a gavel in sight

Commission. They can cause harm to clients who have hired their services. And the Legal Admissions Board may deny their entry into the profession.

Ross is eventually sentenced to two years in prison for this fraud, a similar sentence to a recent case in the United States, but he serves only three months before solving a crime and earning early release. More unrealistic than this early release is that Ross does fairly quickly thereafter gain admission to the profession, which seems unlikely to occur so soon after such an act of fraud.

While Suits has left its mark(le) on the popular imagination of law, it fails to address one of the primary duties of civil litigation: the duty of disclosure.

The MacGuffin-ing of law is common in TV serials. It’s the “smoking gun” found on the day of the trial, or, for the lawyers in Suits, the random document which shows up during the trial to turn the case, dramatically presented by our protagonists as they flail into court armed with this data sans ethics.

This is not quite accurate.

In adversarial legal systems like Australia, New Zealand, the UK and the US, civil litigation rules require parties to disclose to one another all documents in their possession or control which are directly relevant to a matter in dispute.

This is a continuing duty, so if you discover such a document at any time during the case, it must be disclosed.

While exceptions based on various privileges may apply, this essentially means civil litigation must be run in an “all cards on the table” manner. Randomly producing undisclosed material at trial requires the leave of the court and may result in orders of contempt and cost penalties.

It’s not like the lawyers in Suits have ever really been concerned about ethics, though.

Not accurate: How to Get Away with Murder(ing rules of evidence) While most lawyers would support making it a criminal offence to critique Viola Davis, How to Get Away with Murder (201420) presents one of the most common offences within legal dramas: the haphazard approach to rules of evidence.

Annalise Keating (Davis) and her ragtag team of morally illiterate law students (although I never see them studying) manipulate people to obtain evidence and then dramatically prompt witnesses on the stand to read this information into the record, or otherwise “sneak” it into the trial.

This is not accurate. And it ignores the basic reality that so much of legal practice is about not just obtaining evidence, but ensuring that evidence is admissible in court.

One of the most important rules of evidence deals

with hearsay evidence. A court cannot allow evidence to be considered if its reliability is unable to be interrogated.

Witnesses can present only evidence that they saw, heard or perceived themselves. Unless an exception to the hearsay rule applies, such evidence would be inadmissible.

As in Suits, these approaches to presenting evidence may have serious implications. This poor trial management results in delays to criminal trials.

Accurate: Fisk Fisk (2021-) follows Helen Tudor-Fisk (Kitty Flanagan), an established contract lawyer whose personal dramas lead her to move to the boutique Melbourne probate law firm of Gruber and Gruber (played by Marty Sheargold and Julia Zamero).

Fisk excels in showing the importance of lawyer-client relations and the word-of-mouth that sustains much of small legal practice. It’s the anti-Suits, and Fisk is more powerful for it.

The discussions of wills and estates and most basic legal principles in Fisk are mostly sound and the show doesn’t need to get into “legalese” as matters are resolved out-of-court.

This is a distinct reality of law: litigation is a last resort.

Forms of alternative dispute resolution, including mediation, negotiation and conciliation have become the primary way of resolving legal disputes.

Fuelled by legislative changes which require the exhaustion of alternative dispute resolution measures before proceeding to litigation, and a pursuit of reduced costs, the drama of trial is not something anyone should yearn for.

Accurate: Rake Cleaver Greene, a character said to be loosely based on the career of a Sydney barrister, shows us the absolute madness of work as a “silk”. Rake excels at showing the reality of law. The show raises interesting and accurate questions of law (yes, it is true there is no explicit offence of cannibalism in New South Wales) and presents Australian court processes accurately.

Thankfully, there’s not a gavel in sight. Australian courts do not use gavels, and their presence in legal dramas in Australian and UK courts shows a lack of attention to detail. The presence of the gavel as a symbol of justice is an entirely American invention.

Rake is accurate, in part, because the site of drama is rarely the courtroom, but rather Greene’s personal life. The accuracy of that element of law I will leave up to the jury. But with a 2014 study finding 35% of lawyers engaged in hazardous or harmful drinking and another showing high rates of anxiety and depression in the legal profession, the evidence is compelling. ■ Dale Mitchell is a law lecturer at the University of the Sunshine Coast in Queensland ■ The above first appeared in The Conversation and is reprinted with permission 13

FEATURED CPD

FINAL NOTICE

SEMINAR ALL LEVELS MULTIPLE AREAS

Engaging with the media In person and online 2 CPD hours Tuesday 21 November 4pm – 6.15pm Price from $190 + GST Presenters Justice Simon Moore; Julie-Anne Kincade KC; Edward Gay, court reporter, Stuff, Hannah Norton, PR consultant and lawyer and Elizabeth Binning, Open Justice editor, NZME

FINAL NOTICE

Leading your career

Enhance your understanding of the media’s impact in legal contexts. Learn about effective media engagement, press release nuances, the role of social media and strategies to safeguard client reputations, including addressing name suppression and correcting errors.

Chair Marie Dyhrberg KC

IN PERSON

In Person 8 CPD hours Wednesday 22 November 8.45am – 5pm Price from $900 + GST Presenters Miriam Dean KC and Liz Riversdale, Catapult

LIVESTREAM

This practical, interactive one-day workshop will arm you with resources, self-confidence and focus to apply immediately to your role and enhance your future career.

WORKSHOP INTERMEDIATE WOMEN

FIND OUT MORE

FINAL NOTICE

WEBINAR ALL LEVELS TAX

Trans-Tasman tax tango Webinar 1.5 CPD hours Thursday 23 November 4pm – 5.30pm Price from $140 + GST Presenters Bridget Riley, managing director, BR Tax Advisors and Sam Lo Ricco, corporate tax partner, Nuwaru

This webinar will help you to identify the issues to raise with clients if they are considering a move, an acquisition or investment across the Tasman.

FIND OUT MORE 14

Nov 17, 2023 Issue 41

thelawassociation.nz

AML/CFT Workshops 2023

CPD@thelawassociation.nz

In Person 2 CPD hours Auckland Tuesday 28 November 10am – 12pm Rotorua Thursday 30 November 10.30am – 12.30pm Price from $320 + GST Facilitator Fiona Hall, barrister and solicitor

WORKSHOP ALL LEVELS AML/CFT

AUCKLAND

09 303 5278

It is rare to hear people speak fondly of AML/CFT, but practitioners need to be mindful of their ongoing obligations. With the second round of audits completed for most law firms and a new suite of regulations and legislative change pending, it is time for a refresher on what’s required by the Department of Internal Affairs.

ROTORUA

Construction Contracts Act retentions rules WEBINAR ALL LEVELS VARIOUS

Webinar 1 CPD hour Tuesday 28 November 12pm – 1pm Price from $95 + GST Presenter Geoff Hardy, partner, Martelli McKegg

In this webinar, construction law specialist Geoff Hardy puts the rules under the microscope, examining what behavioural changes we can expect and what precautions industry participants should take to cater for unforeseen risks.

FIND OUT MORE

Burning Issues forum FORUM ALL LEVELS EMPLOYMENT

Forum 2 CPD hours Thursday 30 November 4pm – 6pm Price from $150 + GST Presenters His Honour Judge Bruce Corkill; Rosemary Wooders; Laura Chapman; Gillian Service; John Rooney; Isaac Hikaka and Renika Siciliano Chair Rob Towner, barrister, Richmond Chambers

Facilitated by The Law Association Employment Law Committee, the Burning Issues Forum returns with a fiery new session, promising a glowing lineup of sizzling topics.

Get ready to engage with blazingly brilliant minds!

FIND OUT MORE 15

EVENT

Burning issues in employment law The Law Association’s annual Burning Issues in Employment Law forum is fast approaching and promises to be a firecracker of an event.

Speakers and topics include: ■ Uncovering the implications of generative AI in the practice of employment law: The introduction and rapid growth of generative AI in the workplace raises many employment considerations.

In this session, Bell Gully partner Rosemary Wooders and Laura Chapman (Head of Pilot Enablement, Air New Zealand) will uncover the legal risks of generative AI and suggest ways they might be mitigated. This session will also explore the very real possibility of generative AI becoming an employer at some point in the future.

■ Diving deep into s 6 of the Employment Relations Act 2000: This session will involve a discussion between MinterEllisonRuddWatts partner Gillian Service and John Rooney, a partner at Simpson Grierson about one of the hottest employment topics of the year. It will include a brief mention of the Uber cases, Hungry Panda and the Gloriavale cases, and what we may expect in the future.

Issues of worker misclassification have become a significant focus of employment practitioners’ day-to-day work during the past few years. The reasons include proposed changes to

legislation, the changing nature of the workforce (including the rapid rise of gig economy workers) and the actions of unions which appear to be more motivated to raise employment “status” arguments on behalf of their members. So, it is critical for employment practitioners to keep abreast of this key area of employment law.

■ Exploring current and potential future considerations of tikanga and tikanga-based values in employment law: Judge Bruce Corkill will chair a discussion between Isaac Hikaka (barrister, Mills Lane Chambers) and Renika Siciliano (executive director, McCaw Lewis) on: a) a summary of general tikanga principles which all employment practitioners should be aware of; and b) practical guidance for employment practitioners about the application of tikanga Māori throughout the employment lifecycle, having regard to the recent key Employment Court decision GF v Comptroller of the New Zealand Customs Services.

Don’t get burnt by missing out on this fiery event!

Time 4pm – 6pm Date 30 November 2023 Venue Simpson Grierson’s offices, Auckland Book here ■

The Annual Property Law Conference 2024

Property Law Practice in Challenging Times

Thursday 29 February | 12.30 – 5.00pm 4 CPD hours | In person Auckland and online

16

CPD

Nov 17, 2023 Issue 41

WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise The Law Association Inc. 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@thelawassociation.nz

PRACTICE FOR SALE – North Shore – $200,000 Finance available on 10% deposit.

Settlement 31st March 2024 (or earlier). No tyre kickers please.

Don’t be a sucker and work for someone else when you can earn much more working for yourself.

Grab a friend or colleague and set up on your own with a real growth opportunity on offer. Have a crack with some real experience to help you on your way.

Reply in confidence to: advertiser@thelawassociation.nz, quoting ref: NS1023

The Law Association Inc.

PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Ph: (09) 303 5270

Offices Available

AYRTON Anna Maria

GILES-PAIN Ashly Kendal

• Late of Kaikohe • Farmer • Aged 56 / Died 23’07’23

• Late of 60 Hyland Place, Waiuku, Auckland, formerly of 69 Ardmore Road, Herne Bay, Auckland • Videographer • Aged 63 / Died 13’10’23

CHERRINGTON Ngaronoa Harata • Late of Kawakawa • Nurse • Aged 73 / Died 03’02’23

Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst.

No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

GREENOP Matthew Alexander • Late of 11 Drummond Drive, West Auckland • De facto • Unemployed • Aged 50 / Died 27’08’23

Advertise your business Get your message in front of our readers comprised of nearly 6,000 lawyers, judges, politicians, and academics.

Contact our account manager Darrell Denney M 021 936 858 E darrell.denney@thelawassociation.nz

Trans-Tasman Tax Tango What your clients need to know

Thursday 23 November 2023 | 4.00 – 5.30pm 1.5 CPD hours | Webinar

CPD 17

Continued from page 09 were done. Among other things, each entity was assessing a fundamentally different risk and when a deeper assessment was needed, the information that GNS passed onto WML was “ad hoc, infrequent, unstructured, informal, and incomplete”. Nor was it sufficient for WML to rely on the tour operators’ risk assessments.

Whakaari erupted on the night of 27 April 2016. Thankfully no people were on the island at the time. If WML had taken comfort in knowing others had assumed risk assessment responsibilities, the judge said the defendant’s comfort should have all ended with that eruption.

“What should then have been obvious to every Whakaari stakeholder was that any risk assessment and risk management processes in place had failed. They would not have prevented serious injury or loss of life had tours been operating on the island at the time. In WML’s case, it should have appreciated it could no longer rely on risk assessment work being done by others to relieve it of its own obligation in relation to risk. Whatever it thought was in place prior, it needed to stop and re-evaluate.”

At a bare minimum, engaging with experts to understand its obligations and to ensure it complied with them – including by assessing risk – was WML’s duty. While there was no evidence it was deliberately ignorant, WML’s interview showed a lack of appreciation, which further illustrated the need to have taken expert advice from the outset, the judge said. “Its failure to do so then, and at any time since, was always within its control. It was a reasonably practicable step it should have taken to ensure it met its duty. This was a major failure and amounts to a breach of its duty under s 37.”

In obiter comments, Judge Thomas held much of his risk assessment analysis would’ve applied to the other reasonably practicable steps WML failed to take, including monitoring and reviewing volcanic hazards and risks and ensuring an adequate means of evacuation. “It could not properly take any of these steps without knowing clearly what the risk was.”

duty: stop the tours entirely or implement effective controls to minimise or, if possible, eliminate the risk. A causal link must exist between the failure and the risk to which individuals are exposed, the judge said. Without the company’s work activity of granting access to Whakaari, there would have been no tours to the island.

“WML’s breach, its failure to undertake the necessary risk assessments, was a significant and substantial cause of an individual being exposed to risk of death or injury. Its breach was not, and does not need to be, the sole cause of the exposure to the risk of death or serious injury,” Judge Thomas found.

“Other causes contributed. However, it is enough to amount to ‘substantial’. It was more than a minimal causal factor, making it also ‘significant’.”

Section 36 On the s 36(2) charge, Judge Thomas concluded WML didn’t owe a duty to tourists and workers, whom WorkSafe argued fell within the meaning of “other persons”.

In a related, earlier judgment WorkSafe v National Emergency Management Agency [2022] NZDC 8020, Judge Thomas held s 36(2) must be read with reference to subsection 1, in which a PCBU’s duty of care arises from its work activity as opposed to its work output. This conclusion was supported by the overall provision (which focused almost exclusively on worker or workplace safety), the statute’s structure and purpose, and legislative history.

In WML’s case, it never had workers on Whakaari. While WorkSafe argued that other contextual clues favoured a wider interpretation of s 36(2), the judge said his finding of a duty under s 37 nevertheless satisfied the regulator’s argument.

Applicable principles: Health and Safety at Work Act 2015 – whether WML owed duties under ss 36(2) and 37(1) – whether Whakaari was a workplace – whether WML managed or controlled Whakaari – whether WML failed to comply with its duties – whether the compliance failures exposed any individual to a risk of death or serious injury Held: WML is convicted and found guilty of the s 37(1) charge.

The charge under s 36(2) is dismissed. ■

Exposure to risk WML would have had two options had it complied with its

Read the case here ■

AML/CFT Deciphered Chartering contemporary compliance

Auckland 28 November | 10.00am – 12.00pm Rotorua 30 November | 10.30am – 12.30pm 2 CPD hours | In person workshop 18

CPD

Nov 17, 2023 Issue 41

The cruellest thing in this jurisdiction is the fact you can go through a yearlong Authority process, a full multi-day hearing and then have it start all over again

Continued from page 05

and 2022.

The current delays “almost never” square up with the statutory three-month deadline though, the lawyer says. “Some of the authority members, they actually work very hard, but the system is set up for dealing with case-by-case-by-case.”

The Authority’s dilemma, which it has “never really sorted out”, is how to better triage the legally complex, urgent cases from the more straightforward ones, he says. Add into the mix that personal grievances are being taken at a cost of tens of thousands of dollars “easily”, and the issues of expense and delay place justice out of reach for most New Zealanders.

First go at justice Another employment lawyer, who also declined to be named, agrees things have not improved; he has clients who are waiting for decisions on cases that were heard six months ago – double the statutory maximum timeframe. His longestrunning case, which is awaiting a decision, was filed nearly two-and-a-half years ago.

The actual timeframe for people going through the system isn’t about the length of time their case is awaiting allocation, the lawyer says. It’s how long it takes from the start to the end of the process. “For a lot of our clients, that’s still running at over a year.”

A ready-made solution is s 174, the oral determinations provision. But such decisions are rarely given; they are almost always reserved, he says. An oral determination would save huge amounts of time, not only for the immediate litigants but also for other parties waiting in the queue. Authority determinations can resemble judgments in their length and the time it takes to write them, the lawyer says. “Given that an authority decision doesn’t have any particular precedent value, there’s no real benefit that I can see to them containing a detailed legal analysis.”

Another solution, which the lawyer says will need a simple fix by Parliament, is to require the recording of Authority investigation meetings. This means a challenge made against a whole Authority determination (a de novo application) results in the Employment Court rehearing the case afresh – it will gather all the facts itself and issue a new decision without being influenced by the previous authority determination.

Non-de novo challenges to parts of the determination are based on alleged errors of law or fact. However, it’s difficult for parties to establish such errors where they don’t know what evidence the Authority relied on in making its findings. The

Employment Court has tended to rehear the evidence related only to the alleged errors.

The lack of recorded evidence is one of the lawyer’s bugbears as he doesn’t see why the Authority needs to issue a fully detailed decision when, “for the sake of a statement of claim and a $200 filing fee, the party who was unsuccessful can act as if [the determination] didn’t exist”, he says. The consequence is a disproportionately expensive process because the same case is heard twice. The possible reform wouldn’t improve authority timeframes, per se, “but it would dramatically simplify the Employment Court process. The cruellest thing in this jurisdiction is the fact you can go through a year-long authority process, a full multi-day hearing, and then have it start all over again.”

The issues of the Authority seem to be more acute; the cumulative delay for his clients is serious, the lawyer says.

Where mediation falls over, the Authority is a person’s “first go at accessing justice” and it is here that matters can be dealt with in a reasonable timeframe. “If you think about the social purposes of this jurisdiction – of people who have a serious conflict affecting their lives, which should be resolved quickly – the authority is the key opportunity to do that.”

The blacklist In a recent test case on name suppression, the full Employment Court bench heard submissions on a broader access-to-justice issue it is aware of: the informal practice of “blacklisting” employees. The court heard that workers are told at mediation to settle there and then rather than take meritorious claims to the Authority. Among the various litigation risks, employees’ names would most likely be published in decisions, which employers can later search online when screening job applications.

Chief Judge Inglis says it’s troubling if people who are seeking to exercise their legal rights feel under pressure not to do so because of further financial stress, possible reputational damage or the real likelihood of their case being reheard afresh in the court. In the face of these obstacles, “it would take a very resilient, strong-minded, resourceful litigant to proceed,” she says.

Solutions are needed urgently, says the second lawyer, who agrees that a return to first principles would help. “We see people just absolutely worn out by having these issues hanging over their heads for years on end. And it’s very hard for people to focus on getting their career back on track while they’re still locked in ongoing litigation over their last job. We’re really coming back to [asking] ‘what is this jurisdiction trying to be and what are these institutions for’?” ■ 19