LawNews- Issue 42

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The unintended consequences of the govt’s hate speech proposals

into contempt any group of people either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

Section 131 of the Human Rights Act creates the offence of inciting racial disharmony. Thus, the unlawfulness of the communication in s 61 becomes an offence under s 131.

Pursuant to s 132, a prosecution for an offence under s 131 requires the approval of the Attorney-General.

David Harvey

The Minister of Justice has released the long-awaited “hate speech” proposals. The press release dated 19 November 2022 states:

Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (s 61) and criminal (s 131) provisions to cover religious belief.” This article considers the policy that has been announced and is a first-impression overview of the proposal.

Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice.

Sections 61 and 131

Sections 21 – 63 of the Human Rights Act prohibit several discriminatory practices in relation to various activities and services.

Section 65 also prohibits indirect discrimination which is an effects-based form of activity. Victimisation or less favourable treatment based on making certain disclosures is prohibited by s 66. Discrimination in advertising, along with provisions dealing with sexual or racial harassment, are the subject of ss 67 and 69.

The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in ss 61 and 63 of the Act.

There are two tests under s 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established, the next test is to consider whether it is likely to excite hostility against or bring

These provisions could well apply to “dangerous speech” – a term I prefer to the emotionally overburdened term “hate speech”.

Is it necessary, therefore, to extend the existing categories in ss 61 and 131 to include religion?

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the s 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “crusader” rhetoric of radical Islamic jihadi groups be caught.

Would the remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife.

Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed, the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

There can be no doubt that this government characterises dissent or a contrary view as misleading or misinformation

Characterising debate as ‘disappointing’ fails to recognise the importance of debate and the contending views that are present in the community

It may be that adding a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead”.

This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged.

For some groups such a statement may be an invitation to violence against the speaker.

Yet the same statement could be insulting or abusive to atheists as well, simply because that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by s 61, stronger wording relating to the consequences of speech should be applicable to such groups.

Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences, perhaps the wording should be “advocating and encouraging physical violence against”.

This would be a much stronger test than exists at present under s 61 and recognises the importance of religious speech and doctrinal dispute.

At the moment, the test in the Human Rights Act is what may be called a “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger.

This contrasts with the “immediacy” or “emergency” test requiring the speech to carry with it a threat of imminent danger of physical harm. This more stringent test would bring the speech within a justifiable limitation of the s 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, repetition of the message may elevate the risk. In my view, it would have to be proven that mere repetition removes the speech from the viewpoint-neutral harmful tendency position to that of immediacy of harm.

The UK approach

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to s 29J of the Public Order Act 1986 (United Kingdom), which provides: Nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents

of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable. This is correct if indeed it were deemed necessary to have religion included in the Human Rights Act categories.

The UK exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated.

The exception does not go so far as to allow for the advocacy of violence or hostile action which would fulfil the immediacy or emergency test.

It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in s 28J is not required, in that s 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate.

However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

Towards the end of her press release the minister made the following comment:

Some of the debate on this topic over the last year been disappointing and at times deliberately divisive and misleading, particularly in regard to the proposals that were out for consultation. This is not, and never has been, about the government wanting to restrict free speech. There can be no doubt that this government characterises dissent or a contrary view as misleading or misinformation. The minister’s comment continues that hostility towards opposing views.

To characterise debate as “disappointing” fails to recognise the importance of debate and the contending views that are present in the community.

Her last sentence is naïve in the extreme. The proposed amendment, while constituting a significant retreat from early pronouncements on the subject of “hate speech”, is all about a restriction on freedom of expression – a concept that is wider than “freedom of speech”.

People should not only be able to articulate a point of view. Others have a right to hear it.

Perhaps the minister needs to be made aware of the fact that the s 14 NZBORA guarantee not only protects the outward flow of communication – the act of communicating or articulating an idea – but the inward flow as well – the reception of a communication.

In my opinion, the proposed change has not been justified and should not be the subject of an amendment to the Human Rights Act. ■

Harvey

a retired District Court judge ■

David

is

These provisions could well apply to ‘dangerous speech’ – a term I prefer to the emotionally overburdened term ‘hate speech’. Is it necessary, therefore, to extend the existing categories in ss 61 and 131 to include religion?

What does Shousha mean for professional discipline?

disagreed, finding that insight and remorse were both evident in her response to legal authorities.

Rehabilitation across professions

Recent disciplinary decisions across regulated professions similarly stress the rehabilitative function of discipline.

the tribunal’s assessment of rehabilitation prospects. Examples include dishonesty, misappropriation of funds by legal practitioners and sexual exploitation by health practitioners.

In the recent Lawyers and Conveyancers Disciplinary Tribunal (LCDT) decision Auckland Standards Committee 2 v Kejriwal [2022] NZLCDT 24 that cites Shousha, diverse factors featured in the assessment of the lawyer’s rehabilitation prospects.

The LCDT held that the lawyer was not amenable to rehabilitation, given that she lied to the standards committee and failed to repay funds wrongly taken from her employer. The LCDT reported that the practitioner’s low “resilience to resist pressures” [61] contributed to its strike-off decision.

Rychert, Lois Surgenor & Kate Diesfeld

Rehabilitation features prominently in a recent High Court decision. In Shousha v Professional Conduct Committee [2022] NZHC 1457, Justice Christine Gordon quashed the decision of the Health Practitioners Disciplinary Tribunal (HPDT) to strike off a pharmacist. This is a reminder to tribunals that practitioners’ amenability to rehabilitation requires scrutiny in such cases.

Historically, rehabilitation has been identified as a penalty principle in some tribunal decisions. For example, an analysis of HPDT decisions between 2004 and 2020 found the majority stop short of cancelling practitioners’ registration. However, disciplinary bodies may struggle with assessing the rehabilitation prospects of practitioners and issuing appropriate penalties that focus on restoration to practice, as evidenced by the Shousha judgment.

In upholding the pharmacist’s appeal to the High Court, Justice Gordon determined the HPDT’s cancellation of the pharmacist’s registration was “unduly harsh” because it inadequately assessed her likelihood of rehabilitation [118].

The charges related to mismanagement of a pharmacy and breach of the conditions imposed on its licence following an audit. The pharmacist did not challenge the findings about her misconduct and accepted her mistakes in a letter of apology. But the HPDT was not convinced by her expression of remorse or that she understood why her conduct warranted deregistration [118]. The High Court

For example, in Complaints Assessment Committee v Pilgrim [2021], the Teachers Disciplinary Tribunal (TDT) stated that “the tribunal cannot ignore the rehabilitation of the practitioner” [55].

Recognising the pragmatic reasons for rehabilitation after misconduct, the TDT added, “There is no merit in depleting the profession from experienced teachers where we consider rehabilitation possible” [56].

Failing to address rehabilitation in a case concerning a lawyer was also described recently as leaving the tribunal’s job “largely undone” (Auckland Standards Committee v O’Boyle [2021] NZLCDT 27) [17].

These decisions reaffirm that disciplinary tribunals must consider rehabilitative penalties when the primary purpose of disciplinary proceedings –protecting the public – can be realistically achieved without cancelling registration.

If the public protection objective cannot be achieved, tribunals need to clearly state the reasons. In Shousha, Justice Gordon noted that the HPDT “did not articulate why that objective [public protection] could not realistically be achieved through a lesser penalty such as suspension with the imposition of appropriate conditions” [85].

Assessment

Historically, tribunals often cited “the level of insight” and “remorse” as relevant to assessing practitioners’ prospects of rehabilitation.

However, the nature and circumstances of the misconduct are also relevant. Ultimately, disciplinary tribunals must be satisfied that following a rehabilitative penalty, the practitioner will be fit to practise. Charges that involve calculated and premeditated misconduct may impact negatively on

Although it was accepted there was some evidence of remorse in submissions to the LCDT, “her insight was not so apparent in her dishonest response” [61]. This combination of factors resulted in the lawyer being struck off.

Penalties

We know little about how rehabilitation principles inform tribunal penalties. Rehabilitative penalties range from imposing conditions upon practice to training and to being referred for health treatment. Even suspension is considered rehabilitative as it affords time for reflection and opportunities to seek health treatment.

But tribunals often remain silent on the rationale for, and specific goals of, rehabilitation. This has implications for the consistency and predictability of tribunal decision-making and highlights the need for research into the role of rehabilitation in the disciplinary processes.

In this regard, a three-year research project titled A rehabilitation model for professional discipline has been awarded by the Marsden Royal Society of NZ to explore the experiences of disciplined practitioners, decision-makers and rehabilitation providers across the health, law and teaching sectors.

An overview of this project will be presented at the 3rd Professional Tribunal Conference Research, Practice and New Directions on 10 February 2023. ■ Dr Marta Rychert, Shore and Whāriki Research Centre, College of Health, Massey University, Professor Lois Surgenor, Department of Psychological Medicine, University of Otago at Christchurch, Professor Kate Diesfeld, School of Interprofessional Health Studies, Auckland University of Technology ■

Marta

Recent disciplinary decisions across regulated professions similarly stress the rehabilitative function of discipline

Rules committee flags a raft of reforms to boost access to civil justice

jurisdiction

Reweti Kohere

A long-awaited report from the judiciary’s Rules Committee has recommended a three-point plan for improving access to civil justice.

Three years in the making, the report suggests amending the procedural High Court Rules to achieve more focused and proportionate outcomes, reinvigorating the District Court’s declining civil jurisdiction – in part by appointing a new principal civil court judge — and raising the cap for the Disputes Tribunal’s small claims jurisdiction from $30,000 to $100,000.

To address a “slow-burning” justice gap, the committee’s findings go beyond simply altering the rules of court to suggest changes government ministers and policymakers can make to boost New Zealanders’ fundamental right to access fair and impartial justice.

Across 72 pages, the committee recommends:

■ expressly introducing proportionality as a guiding principle in the High Court Rules;

■ amending a raft of procedural rules governing witness statements, discovery and disclosure, interlocutory applications and other matters, which will significantly change the approach to civil litigation in the High Court;

■ embedding technology shifts and practices developed during covid-19, including electronic filing and remote hearings, as standard procedures;

■ appointing a new principal civil District Court judge to oversee a revamped civil workload;

■ restoring the court’s civil registry expertise to ensure bestpractice case management;

■ appointing part-time deputy judges from the legal profession, including King’s Counsel and senior civil practitioners;

■ expanding the “expeditious, efficient, and proportionate” Disputes Tribunal to cover orders capped at $70,000 as of

right or $100,000 with consent, up from the current small claims’ threshold of $30,000; and ■ creating a general right of appeal to the District Court for higher value disputes.

It’s vital New Zealand’s courts provide an effective place for all people seeking to resolve disputes, says Justice Francis Cooke, chair of the Rules Committee.

“During the consultation period, it became apparent that there were wider issues extending beyond the procedural rules in the courts. If there are procedural rules, or systemic issues that mean that there is not an affordable system of civil justice, then changes should be made.”

Cultural and rule changes

Psychological, cultural and informational barriers plague the courts’ civil jurisdiction. However, long perceived as beyond the budgets of most New Zealanders, the cost of litigation and representation is one of the biggest – and least surprising – obstacles.

The committee cites one of Otago law senior lecturer Dr Bridgette Toy-Cronin’s earlier submissions suggesting the cost of legal services between 2015 and 2016 was outstripping the average person’s means of meeting that cost: the average charge-out rate for employed lawyers rose by 8.4% while the median weekly income increased only 3.4%.

Making matters worse is the profession’s “maximalist” approach to court action, in which “all issues are investigated, all evidence called and all matters argued”, the committee says.

In some quarters, it’s viewed as the benchmark for competent litigation. Concerned, the committee wants to discourage its prevalence. “We consider that the best litigators refine and distil the key issues arising in the case and focus on them, ever mindful of proportionality,” it says.

Justice Cooke says “overly complex” procedural rules can exacerbate the expense – even if litigants’ disputes cost less and are simpler to understand. “In these circumstances, the rules must be reviewed.”

In an interview last year with LawNews, the judge said parties

Psychological, cultural and informational barriers plague the courts’ civil

Justice Francis Cooke

The cost of litigation and representation is one of the biggest – and least surprising –obstacles

had to litigate much more efficiently if the service was still to be useful to the community. “You can change rules as much as you like but it all ultimately depends on the way people apply them. There does need to be a change in legal culture, not only in terms of what may be earned from conducting litigation as a skill set that you charge for but also in the way it is done.”

Judges had a part to play too, including taking a more proactive, hands-on approach to managing cases, Justice Cooke said. “It’s not simply a matter of sitting back and waiting for parties to present their case and impartially reaching a judgment. There needs to be more hands-on management in terms of making sure that the litigation is being conducted in a manner consistent with the principles of proportionality and access to justice.”

High Court Rules

Fostering cultural change is, in part, tied to rule changes. The committee has recommended judicial issues conferences, where judges, counsel and parties zero in on key issues, should occur later in proceedings when participants better understand the case, rather than happening shortly after claims are first filed. It’s expected judges will engage significantly in identifying the issues and what steps are required to resolve the case.

An additional feature of the High Court Rules reforms is that factual “will say” or witness statements, which summarise and outline what a witness may say in evidence, will replace briefs of evidence. The replacements will be served near the start of proceedings and before discovery is ordered, unless exceptional circumstances warrant otherwise.

The proposal, which adopts a procedure successfully introduced in the equity division of the New South Wales Supreme Court, hopes to shift litigation practice away from argumentative statements or repetitive recitations of the contents of documents that will be produced anyway, and toward much more focused evidence-inchief and cross-examination.

A third feature is that counsel must emphasise the documentary record to establish facts at trial. Documents included in the agreed bundle should presumptively be admissible to establish those facts without the need for witnesses to traverse them, the committee says. In the event an admissibility challenge is made to a specific document, this can be determined at the trial itself.

Underpinning these changes is the addition of proportionality to High Court Rule 1.2, which aims to 2achieve the “just, speedy, and inexpensive determination” of any proceeding. “Making express reference in r[ule] 1.2 to proportionality will recognise that the procedures appropriate for a particular proceeding will vary depending on the nature of the proceeding, and what is at stake,” the committee says.

It’s not lost on the committee how big of a change these proposed reforms will make to the way civil litigation is conducted. Because they vary from the specific proposals consulted upon, the committee will decide on implementation after a further round of consultation, and will consider whether pilots are necessary.

A reinvigorated District Court

There’s a perception the District Court has lost its civil jurisdiction capacity, Justice Cook told LawNews last year. “It doesn’t really have as much of a reputation for dealing with standard civil litigation as it used to.”

Dealing with some 200,000 criminal, family, youth and civil matters every year, the District Court is Australasia’s busiest court, the committee says in its report.

And while there are fewer defended civil proceedings in the District Court (600-700 of the 11,000 filed each year), the perceived decline doesn’t lie with the court’s still fit-for-purpose rules, the committee says.

Instead, the court’s criminal and family jurisdictions are demanding more judicial resources; the centralising of processing civil proceedings, rather than at each registry, has contributed to the loss of expertise among registry staff and has alienated civil practitioners; and the nearly one-year timeframe for the court to hear and dispose of defended civil applications is contributing to that perception. “This has led to further reputational damage to the District Court,” the committee says.

That’s set to change under its recommendations. A new principal civil judge will help tackle the court’s resourcing issues, bolster civil registry expertise by working with the Heads of Bench and the Ministry of Justice and focus on improving information barriers that some community groups experience.

Establishing a separate civil jurisdiction is an additional, effective means of implementing proposed reforms, the committee believes, as is the appointment of part-time deputy judges from the profession who will help deal with workload issues while gaining experience should these barristers have judicial aspirations.

While it was submitted that part-time judges might compromise judicial independence (Bell Gully noted the separation between the Bench and the Bar was “constitutionally and professionally appropriate”), the committee considers the reform won’t necessarily erode that division.

“Those appointed to such roles can be expected to observe the principles of judicial independence and there is no reason to expect they cannot manage these requirements in practice,” the committee says, noting perceived or actual conflicts of interest would be managed by the principal civil judge.

Bigger Disputes Tribunal

Tied to the issue of affordability is one of the committee’s key proposals: extending the jurisdiction of the Disputes Tribunal to handle higher-value claims.

Justice Cooke last year told LawNews the proposal could help “because that’s the tribunal that doesn’t contemplate legal representation. So, if you increase the jurisdiction of that body at the lower end, you’re allowing people to access civil justice without having to meet the costs of legal representation.”

The Disputes Tribunal, the only tribunal that forms part of the District Court, provides a quick and inexpensive way to resolve civil

Between 2015 and 2016, the average charge-out rate for employed lawyers rose by 8.4% while the median weekly income increased only 3.4%

D v A: hard cases make bad law

Andrew Steele

A recent article in LawNews referred to the Court of Appeal’s ruling in D v A [2022] NZCA 430 and voiced support for the dissenting judgment of Collins J.

The case involved a father who verbally and physically abused his two sons and daughter while they were young and under his care. In 1981, the father left the family home and he and children became estranged for more than 30 years.

Despite the absence of direct contact or communication between them, the children continued to suffer from the earlier abuse, including financially, via their employment opportunities, and mentally by way of a lack of self-confidence and self-belief.

During the estrangement, the father knew his children needed financial and emotional support, but he gave none. In 2014, 16 months before he died, the father gifted property into a trust in part to deliberately thwart a possible claim against his estate by his children. The father’s estate had around $47,000 and the trust around $700,000.

The court noted that the Family Protection Act claim brought by the children would be rendered meaningless unless the property gifted to the trust reverted to the father’s estate. Nevertheless, by a majority of two to one, the father was held not to have acted in breach of any fiduciary duty when he disposed of his assets to the trust. The children were left without relief.

Apparently, several readers contacted the author of the earlier LawNews article to say that they disagreed with the majority’s decision. And the author exhorted our judges to have the confidence to make new law where the principles of justice require it.

But remember the idiom: be careful what you wish for. You might just get it, along with things you probably wouldn’t wish for.

In a paper entitled Hard Cases and Bad Law (Waikato Law Review 2008, Vol 16 page 1), then Justice Paul Heath explained the maxim as describing a difficult case which might cause the clarity or purity of the law to be obscured by exceptions and strained interpretations that were designed to achieve justice in a particular case.

The underlying idea is the need for the courts to apply

binding precedents in a manner that produces consistency in the application of the law. Heath stated: Predictability is, in my view, the most important factor in cases where a particular branch of the civil law affects the lives of many and advice to act in a particular way is likely to have been given based on existing law. If no proper point of distinction can be made from a binding precedent after critical analysis of it, any change in the law is likely to result in a hard case making bad law.

D v A is a hard case. The father whose duty and responsibility it was to care for his young and vulnerable children instead mentally and physically abused them, raping his daughter. This case is the paradigm for cases deserving of relief.

But here’s the rub. Should the dissenting judgment in D v A be heralded as a welcome bending of the principles governing fiduciary relationships in order to avoid those principles being used as ‘weapons for inequity’? Or does the reasoning underpinning the judgment so strain existing principles that adopting them into law will cause unacceptable uncertainty about when fiduciary relationships subsist and the consequences of a breach of a fiduciary duty?

All three judges agreed that the children could have successfully pursued claims against their father for breach of fiduciary duty.

Justice Kós held that any fiduciary duty owed by the father ended when he ceased to care for the children [166]. And because the ordinary remedy must be equitable compensation, the claim was long extinguished by laches [165]. He agreed with Gilbert J that the children’s residual personal claim could not be converted to, and preserved by, a continuing proprietary claim to the father’s property [167].

Gilbert J held that the father was free to deal with his own assets as he wished because [142]:

■ they were his assets, accumulated over the course of his life, and he was entitled to deal with them as he pleased;

■ he did not acquire or hold the assets for the benefit of his children;

■ the children did not contribute to the assets so they had

It is one thing for the law of equity to graft fiduciary duties onto a relationship but it is something new to impose a relationship on two people when none exists and then graft duties onto it

The dissenting judgment appears to elevate atonement into a separate and self-standing principle of law, actionable as a discrete cause of action

no proprietary claim in respect of them; and

■ the father did not undertake or assume any obligation by contract, agreement, unilateral undertaking or otherwise to deal with his assets for their benefit.

The majority concluded there was no fiduciary relationship between the father and his children when he gifted his assets to the trust.

The dissenting judgment

Collins J listed the “recognised indicia of a fiduciary relationship” as follows [167]:

■ the fiduciary had actual or inferred responsibilities to the beneficiary;

■ the fiduciary had a discretion to exercise their powers so as to affect the interests of the beneficiary;

■ the beneficiary was entitled to, and did, have trust and confidence in the fiduciary not to adversely affect the beneficiary’s interests; and

■ the beneficiary was particularly vulnerable and dependent upon the fiduciary to exercise their discretion in a way that did not undermine the interests of the beneficiary.

Collins J defined the filial fiduciary duty as an actual or implied responsibility of a parent not to act in a way that was contrary to the child’s interests and, conversely, the actual or implied trust and confidence a child reposes in their parent to not act contrary to the child’s interests.

None of the above is controversial. The dissent arises from Collins J’s finding that the father’s fiduciary duty to the daughter continued after the child became an adult and after he had departed the family home.

The judge justifies this view by reference to the “strongly similar” example of a “severely disabled child who is dependent on their parents for care and support…” [79].

By the same reasoning, the father in D v A owed a continuing duty to his daughter during the 30-plus years of estrangement and when he gave away his assets to defeat any claim she might make against his estate.

But does the disabled child analogy hold true? There is a world of difference between:

■ a severely disabled adult child who is dependent upon their parent for care and support where the parent has expressly or impliedly assumed responsibility for that child’s care and support (scenario A); and

■ a severely disabled adult child who is cared for and supported by some person or entity, not the parent, who has taken on that responsibility and the child and parent have no existing and continuing relationship with each other, much less one involving provision and acceptance of care and support (scenario B).

In these scenarios, the only constant is the blood relationship. In scenario A, the parent entered into a relationship with, and

assumed a responsibility for, the child. In second B, the parent did not.

It is not the child being related to the parent that creates the fiduciary relationship and attendant duties. It is the assumption of responsibility within a relationship, expressly or by implication, by the parent for the care of the child and the converse dependency and vulnerability of the child who relies on the care that makes the relationship fiduciary.

Collins J’s dissenting rationale does not require an ongoing relationship between the parties. I suggest it is one thing for the law of equity to graft fiduciary duties onto a relationship but it is something new to impose a relationship on two people when none exists and then graft duties onto it.

Collins J explained that for the daughter to have any semblance of a normal and independent life, she required economic and emotional support from her father, including a provision for her in his will. He called it “atonement” [96].

The judge dismissed the two brothers’ appeal because they had achieved independent and autonomous lives despite the abuse they suffered. By application of atonement, it seems the court will now dictate how a parent should parent and what a wise and just parent or testator should put in their will.

Applying the new principle of fiduciary relationship and atonement is not easy. It seems that if in the past, and that could be decades past, a parent breaches a fiduciary obligation to their child, then forever after, and whether they have an actual relationship together, the parent owes a fiduciary duty to provide for the child, but only if they need such provision.

The child receives a proprietary interest in the parent’s property whenever it is acquired, so the parent cannot deal with it in a way that is adverse to that child’s interests without being in breach of fiduciary duty.

Settlement into a trust is one example of such a breach, but in principle any divesting of the parent’s property will qualify –perhaps the expenditure involved in going on an extravagant winter holiday or a gift to the parent’s other children.

Any contract-breaker, tortfeasor or fiduciary duty-breacher may be said to be under an obligation to atone until such time as they pay for the damage their conduct wrought. The dissenting judgment appears to elevate atonement into a separate and self-standing principle of law, actionable as a discrete cause of action.

I suggest Collins J’s dissent constitutes much more than an exercise of confidence or a mere bending of existing fiduciary relationship principles. If adopted into law, the dissent would arguably open a veritable can of worms.

Justice for the daughter would likely be done at the cost of consistency within the law of fiduciary obligations and predictability in estate planning and the law of trusts more generally. ■

Andrew Steele is an Auckland barrister specialising in family trust and estate disputes ■

By application of atonement, it seems the court will now dictate how a parent should parent and what a wise and just parent or testator should put in their will

Court halts demolition of Tūhoe huts

Sacha Jugum

Te Urewera Act 2014 – application for judicial review – application for interim relief in relation to disputed destruction/removal of back-country huts – applicable principles – procedure – standing of parties – unavailability of parties – legislative history – hut usage – “preservation of historical and cultural heritage” – public interest – cultural considerations – lawfulness – weighing of evidence – overall justice – an “interim interim” order is made that hut demolition/removal is to cease pending hearing of the application for interim relief

Te Urewera was a National Park from 1954 until it was decommissioned in 2014. In 2013, following the settlement of Tūhoe’s historical Treaty of Waitangi claims, Te Urewera was declared to be a legal entity and its governance and management vested in TUB.

Crown improvements within Te Urewera (including the huts) remain vested in the Crown, subject to powers held and exercised by TUB and by certain other parties. These included the right to use, occupy, access, maintain, remove or demolish the huts, provided that other conditions were met.

TUB passed a resolution to demolish or remove the huts, in conjunction with the second respondent, a Tūhoe Trust (TT) which also held rights and powers in relation to Te Urewera and the huts within it. TUB noted in the resolution that the removal of the huts was symbolic to the legislation, that some of the huts were in disrepair and that there had been a loss of hope and trust with a need to resolve previously unresolved troubles so the way forward could be seen.

TT commenced removal/demolition/burning of certain huts in October 2022, causing disquiet and concern among parties who used the huts and/or who perceived them as an integral part of the fabric of the area and/or a loss of wairua [te reo for “spirit” or “soul”].

Tuna (WCT) applied for judicial review of the decision to remove the huts and for an interim order that TUB and TT cease hut removal activities until the substantive matter could be heard.

WCT filed a range of evidence to support his application, including

his own, which identified his use of the huts since he was a child, the strong cultural beliefs and spiritual significance he and others attached to the huts and area and the great personal distress caused to him by the loss of the huts.

WCT’s evidence, together with other supporting evidence, highlighted the use of the huts by Tūhoe iwi, hapu, tramping groups, scientists, Department of Conservation employees, hunters, and other visitors to the area.

The presented evidence also alleged a lack of process or consultation in the passing of the original resolution and a lack of adherence to the Te Urewera Act 2014 and the requirement for the preservation of historical and cultural heritage. The loss of the huts meant public access to the area was also effectively lost or reduced, with further health and safety considerations if there were fewer huts for shelter. WCT’s application for an interim order was without notice but was served on TT and TUB together with the Department of Conservation so their input could be sought. TT and TUB were not in a position to give an undertaking at the point of WCT’s application.

The court noted that in the circumstances an interim order could not be made without hearing from all parties on a fully argued or more detailed basis.

Applicable principles – detailed review of procedural matters – consideration of the threshold for interim relief – weighing of evidence, including evidence in relation to the lack of/status of an operational plan from the Department of Conservation and a related assessment of whether the removal of the huts without an operational plan in place was lawful –consideration of the overall justice of the matter – necessity – analysis of potential merits of the interim/substantive application – discussion of the statutory framework – whether demonstrable disadvantage to TT or TUB if the hut demolition ceased and interim relief was granted [no] Held: WCT is granted “interim interim” relief – an “interim interim” order is made that TUB and TT are to cease hut demolition/removal pending the hearing of the application for interim relief and TUB and TT are to provide a list of demolished huts to the court. ■

Tuna v Te Urewera Board [2022] NZHC 2924 (Woolford J)

Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin ■

Te Urewera was declared to be a legal entity and its governance and management vested in TUB

Meet Catherine Cull KC

The first in a series of interviews with New Zealand’s newly-appointed KCs

Reweti Kohere

To the best of Catherine Cull’s knowledge, she is believed to be Northland’s first-ever King’s Counsel.

“We did a bit of research and there was a Law Society article in 2014 where they had, up to that date, a map of where Queen’s Counsel had been located,” she says. “There definitely hadn’t been any in Northland, and from my own knowledge there haven’t been any since then.”

This makes the appointment that much more special. “It’s a personal honour to me,” she says, “but it’s also an honour for Northland, to show there’s actually a high standard of advocacy north of Auckland.”

Cull and nine other barristers are the latest to take silk and the first to be appointed since King Charles III ascended the throne in September. Announcing the appointments earlier in November, Attorney-General David Parker said the profession was continuing to contribute well to improving access to justice. “The criteria for appointment recognise that excellence and leadership in the profession should be viewed through a wider, community lens.”

In many ways, community has been at the heart of Cull’s legal career, whether she’s teaching litigation skills, acting as lawyer for child or youth advocate, or practising as a criminal and family barrister.

She has worked at Crown Solicitor firms Meredith Connell and Raymond Donnelly & Co, was appointed to the Christchurch Crown Prosecuting Panel and Christchurch Complaints Referral Panel in 1992, and was an investigating officer of South Island prisons in the Ombudsman’s Office.

Over the past two decades, Cull has lived and worked in Northland, first joining Law North Partners in Kerikeri as a senior solicitor and then returning to the independent Bar. Applying to take silk had been less about herself and more about ensuring the high-quality service in Northland

is recognised, she says. “It’s an open-door office, we try to help as many from the community as we can, whether we get paid or not – observing barrister rules, of course. It was very humbling really.”

LawNews spoke with Cull and two other new Silks. The interview has been edited for clarity.

LawNews: Had you always aspired to take silk?

No. My passion is advocacy and litigation but I’ve done a whole lot of work through my career of legal education. [Teaching] litigation skills from about 1988, on and off, I’ve run that course. I’ve given seminars, I’ve taught the very original Public Defence Service office in Auckland litigation skills. It’s been very much trying to make sure the standard of advocacy is high. Those are the two strings to my bow.

LawNews: Should we retain the title of King’s Counsel or revert to “Senior Counsel”?

My heart says it should stay as King’s Counsel just because of the history behind it, the whakapapa and mana that goes with it. For me personally, there have been those who have gone before and there will be those hopefully in the future. That’s really important to me.

LawNews: Which significant matter have you been involved in over the past three years that stands out the most and why?

In my role as youth advocate and lawyer for child, I try to put both hats on and deal with young offenders through a holistic approach, whereby we’re addressing their offending but also their underlying care and protection

Catherine Cull KC

Former lawyer and Obama scholar finds what he’d been looking for in a career

helped and the teams I’ve been a part of have managed to achieve some pretty cool stuff, like New Zealand’s first impact investing fund.”

Multi-tasker

Rowland was raised in Brightwater near Nelson in a family of entrepreneurs and gig workers. “I was always involved in a variety of things, from sports to acting and music to scouts,” he says.

Rod Vaughan

Former Auckland lawyer Jackson Rowland isn’t one to brag about himself but has every reason to.

An erstwhile member of the commercial team at Bell Gully, Rowland is one of only 30 people worldwide to be selected as an Obama scholar. And the 33-year-old has just embarked on a ninemonth study program at Columbia University in New York, along with 11 other scholars.

The scholars are chosen by the Obama Foundation whose mission is to “inspire empower and connect people to change the world”. They are seen as “a vital part of the foundation’s work to engage with young leaders around the world in order to help them gain more skills and scale their work”.

The scholarship is worth more than US$100,000 and covers tuition and accommodation costs plus a monthly stipend.

Another 18 are undertaking a similar program at the University of Chicago.

At Columbia, where LawNews met him, Rowland was still coming to terms with the honour of being viewed as one of 30 “rising leaders from around the world who have demonstrated a commitment to finding solutions to challenges in their homes, countries and regions”.

And such is his modesty he’s also at a loss to understand why he was chosen. “I’ve thought about this a bit because I’m really not quite sure,” he says.

“I’m really proud of the work I’ve done throughout my career, but I know of so many amazing people who have done amazing things and when I look at my colleagues in the cohort, I feel distinctly inferior!

“I think the variety of experiences and work I’ve always done has

“Thinking back now, this is probably where my constant need to work on multiple projects started. It’s also where I learnt to work hard and do my best. I grew up with parents and extended family members who were often working multiple jobs while also scheming about the next one.”

Rowland thanks his New Zealand father and German mother for instilling in him the importance of fairness and justice.

“Whether it was from having to engage in dispute resolution more frequently than any parent would want, thanks to having four children in the house, or from the endless encouragement for us to do what we believed, a sense of justice is something that I’ve had from an early age.”

Perhaps not surprisingly, he intended to join the police as a detective when he left Waimea College but was persuaded by his sister to become a lawyer instead, so it was off to Canterbury University to study law and science.

And it was during this period he became heavily involved with the Student Volunteer Army, helping to clean up Christchurch after the earthquakes, something he describes as one of the biggest turning points in his life.

“This was the first time I’d really volunteered for the community, helping strangers simply because they needed it. And it was a huge moment for me.

“I enjoyed being out there cleaning up their gardens etc far more than I had enjoyed studying law. So, I continued volunteering, getting quite involved in the Student Volunteer Army alongside my studies.”

Such was his enthusiasm for voluntary work that Rowland later travelled to New York to help co-ordinate volunteers cleaning up after Hurricane Sandy.

After my experiences following the earthquakes in Christchurch, I knew I needed to be closer to organisations who are creating change in communities

It wasn’t until I left law and noticed my brain starting to wake up and think differently that I realised how narrow it was focusing as a lawyer

Jackson Rowland

Corporate lawyer

After graduating from Canterbury, he moved to Auckland and joined Bell Gully where he became involved in a couple of fairly large merger and acquisition transactions.

“I really enjoyed the pressure of working long hours in a team, collectively working to pre-empt and solve our clients’ problems within non-stop deadlines.

“But while this style of work was what I enjoyed the most, it was also the phase that made me realise this work wasn’t for me in the long term.

“This was because when the deal would finish, and I would finally have some time to catch up on sleep and life, I would immediately realise all the things I’d missed because I’d been so focused on work.

“I also really struggled to rationalise the very low salaries we were receiving, and the structured and elongated career progression path we had ahead of us.

“I think the industry has started to change in these respects, but it was never going to happen fast enough for someone as impatient as me.”

As a result, Rowland took a position at Wynn Williams in a less hectic environment, working in a much smaller team with a greater variety of work.

“At Wynn Williams I was able to work closely with clients and ended up doing a lot of capital raising work, including with crowdfunding platform Snowball Effect. I then ended up taking a full-time role with Snowball, signalling the end of my time as a lawyer.

“I was really lucky with the amazing colleagues I had as a lawyer, but I just wasn’t getting the satisfaction from the work that I had got with some of my volunteer work.

“After my experiences following the earthquakes in Christchurch, I knew I needed to be closer to organisations who are creating change in communities.”

Narrow focus

Rowland says most his peers who started in law are no longer in the profession.

“There are many different reasons for this, but to generalise I know the salaries in the early days are a challenge given the hours of work expected and the amount of education required to get to that stage.

“Another big issue is the structured and limited nature of the work at a junior level. It wasn’t until I left law and noticed my brain starting to wake up and think differently that I realised how narrow it was focusing as a lawyer.

“The work of junior lawyers can be quite repetitive and focused compared to working in other roles where you are constantly thinking about a variety of different issues.

“When given variety and opportunity to think more dynamically, people find their potential faster. It would be great to see large law firms find ways to better harness the potential of junior lawyers.”

Impact investment

From Snowball, Rowland went on to become director of New Zealand’s

largest impact investment consultancy Akina and finally found what he’d been looking for in his career.

The organisation helps businesses, government agencies, social and community enterprises uncover the best ways to tackle challenges like poverty, inequality, environmental degradation and climate change.

“The goal is to build the impact investing ecosystem in New Zealand so businesses can change the world.

“To do this we, alongside New Ground Capital and Impact Ventures, launched New Zealand’s first impact investment fund, the Impact Enterprise Fund, which is now fully invested into 10 amazing businesses.

“We also created New Zealand’s only impact investment readiness program, providing funding to impact-led businesses to spend on professional advice to get ready for investment. And we did a variety of work with larger holders of capital, such as government agencies, to help them identify how they can deliver more impact with their money.”

Such is Rowland’s reputation and prowess in this sector that he was invited to join the World Economic Forum’s Global Shapers Community which enabled him to attend this year’s World Economic Forum in Davos.

Given such a background, it’s not surprising that he was selected as an Obama scholar. So, what does he hope to hope to gain from his time at Columbia University?

“I continue to believe that investment will be one of the key levers to tackle the challenges the world is facing,” he says.

“The total funds needed to solve climate change by 2050 is only half of the global profits that corporations make. The money is there. We just need to accelerate how it gets to the projects that matter.

“To do this, I want to better understand the financial ecosystem. How is money made and lost? What’s next for ESG (environmental, social governance) and how can this be simplified?

“To figure some of this out, I’m studying Masters-level finance papers to learn more about the ecosystem and hopefully identify ways to make it easier for investors and businesses to be part of the solution.”

Rowland believes he will return to New Zealand with “new learnings and ideas to help investments continue to improve the world”.

“Already, asset managers in New Zealand are demonstrating some global best practice through ESG and indigenous screening, but we know there’s more to do too.

“How do we do this? How do we do it without adding unnecessary complexity for anyone involved? And how do we make our compliance obligations just a small step on a path towards achieving our much more exciting potential?”

Rowland says he wants to bring the world’s leading ideas and processes back to New Zealand to accelerate this transition.

“I’ll be finding ways to see how we can get more money to more good projects. I think our institutional investors are the hidden gems in New Zealand’s sustainability landscape and are already doing so much to shift how money is invested.

“But there is more that can be done too, so hopefully I can help maximise the investment returns and sustainable outcomes for some of these investors. There is enough money to save the world. We just need to get it to the right projects.” ■

It would be great to see large law firms find ways to better harness the potential of junior lawyers

ALL LEVELS PPPR WORKSHOP

PPPR Act proceedings

In Person workshop

4 CPD hrs

Tuesday 29 November

8.30am – 1pm Price from $400 +GST

Facilitators Theresa Donnelly, legal services manager, Perpetual Guardian and Alan Gluestein, barrister, Wyndham Chambers

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

Limited spaces available

Video guest Dr Jane Casey consultant psychiatrist and psychogeriatrician

FIND OUT MORE

Using declaratory judgments

Webinar 1.5 CPD hrs

Thursday 1 December 1pm – 2.30pm Price from $110 + GST

Presenter Hamish McQueen, senior associate, Gilbert Walker

Valuable insights for litigators on this useful remedy, including why you might seek a declaratory judgment, the legal tests and practical guidance on procedure.

FIND OUT MORE

Contract law update

ALL LEVELS

COMMERCIAL

SEMINAR

Livestream | In Person

2 CPD hrs

Tuesday 6 December

4pm – 6.15pm

Price from $140 + GST

Presenters Graham Kohler KC, Kate Davenport KC and Yvonne Mortimer-Wang, barrister, Shortland Chambers

An update on what’s happening in New Zealand and elsewhere with contract interpretation, implied terms and damages.

Chair Paul David KC

Evidence law update

ALL LEVELS CRIMINAL/CIVIL WEBINAR

Partnership law

Webinar 1 CPD hr

Tuesday 13 December

12 pm – 1pm Price from $80 +GST

Presenters Gerard Dale, partner, Dentons Kensington Swan and Sarah Gibbs, senior associate, Dentons Kensington Swan

Writing right –for family lawyers

Livestream 2 CPD hrs

Thursday 8 December

4pm – 6.15pm

Price from $140 + GST

Presenters Scott Optican, associate professor, University of Auckland and Jack Oliver-Hood, barrister/ lecturer, AUT Law School

It’s vital to keep abreast of developments in evidence law and procedure. Presented by evidence law lecturers and two co-authors of the 2018 text Mahoney on Evidence: Act & Analysis, this seminar will focus on the application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions.

FIND OUT MORE

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

FIND OUT MORE

Livestream | In Person

2 CPD hrs

Thursday 16 February 2023

4pm - 6.15pm

Price from $140 + GST

Presenters Judge Kevin Muir and Brian Carter, barrister

This seminar, with bench and bar perspectives, aims to give direction and insight into effective, concise drafting.

adls.org.nz/cpd cpd@adls.org.nz 09 303 5278 ALL LEVELS FAMILY SEMINAR

Events

A special thank you to our committees

The 18 ADLS committees cover a broad spectrum of practice areas and are made up of a cross-section of the legal community, covering all ages, stages and locations. ADLS is enormously proud of the work they do. At a function in Auckland on 16 November to thank committee members for their service, President Marie Dyhrberg KC said the work they do is highly valued by the ADLS Council, the organisation and the wider community.

Committee members travelled from Hamilton, Wellington and Christchurch to join in the celebration. Dyhrberg said she was reminded every day of how proud she was to be part of ADLS and she was grateful to committee volunteers for their hard work and diligence.

Committee members were at the heart of ADLS, Dyhrberg said. Their work helped practitioners do their jobs better, their lobbying helped inform and their leadership and training helped inspire and educate. Dyhrberg acknowledged it had been a very busy and productive year for the committees whose members volunteer their time while balancing their work and family commitments.

She added that, as in previous years, much of the ADLS committees’ work had focused on a variety of initiatives, including legislative and policy reviews, contributing thought leadership for LawNews and other publications, as well as being a respected source of CPD content. “Our committees give us a voice – they lead the way through thought leadership and they influence, challenge and help change our legal landscape,” Dyhrberg said. Our sincerest thanks to them all. ■

Monique Pearson

Tony Herring, Marie Dyhrberg KC and Julie-Anne Kincade KC

Steven Moe, Hermann Grobler and Brett Cunningham

Sue Keppel, Lloyd Gallagher and Bill Patterson

Telise Kelly, Kiri Petrie, Stephanie Nicolson and Surendra Bennett

Moira MacNab, Astrid Sandberg and Sonya Singh

needs. This particular case, which has suppression and is still going on, is a young man that has high-level sexual offending. We’re still working our way through it, but we’re working our way through a two-year plan of frontending therapy and having a team that we put together, which includes me and psychologists and mentors and the like, so that he will come to sentencing or disposition at the end of that. And we will see what the judge makes of it.

It was a team effort to persuade people like Oranga Tamariki to fund it and to make them an integral member of that team so they can keep the integrity and victim rights front and centre. We have it judicially monitored by the same judge. I’ve done, in the last three years, four or five similar-type approaches and, touch wood, so far so good – no reoffending, the kids have gone from strength to strength. But it has been about ensuring all agencies work together, as opposed to being in silos.

It’s about “why are we here? How did we get here and what can we do?” It’s not to avoid consequence, but it’s about being able to have a very full picture. We do have a court up here, which is called a crossover court, where we have a judge who has a youth court warrant, family court warrant, usually an adult criminal warrant as well, so they can move between jurisdictions. There’s one judge, there’s one lawyer who can move between jurisdictions –that’s me. It’s not a factory line. These are the cases I’m prouder of because they do match the new scientific research coming out that says we need to address care and protection needs to be able to break the cycle of offending.

LawNews: How can barristers continue to improve access to justice?

It’s really about creating good lines of communication and trust with other agencies. No one is any better than anyone else. But we have to work together, we have to communicate. We stick to our own roles, obviously, but we communicate.

People have access to me at any time. The door is never closed unless we’ve got a full book. In terms of better access, it’s about availability. It’s not about money to me. For me, it’s about being a member of the community. ■

Next week: Nick Chisnall KC

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Get your message in front of them.

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

Offices Available

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

WILL INQUIRIES

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

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

reception@adls.org.nz ADLS, PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax: (09) 309 3726 (09) 303 5270

DRAPER

Graham Walter

• Late of 4/2 Springfield Road, Morningside, Auckland

• Retired

• Aged 72 / Died 02’09’22

MERZ

Craig Roland

• Late of Auckland

• High access maintenance worker

• Aged 59 / Died 28’08’22

RUTHERFORD

Rowan Helena

• Late of 14 Borich Road, Sunnyvale, Auckland

• Single

• Homemaker

• Aged 64 / Died 06’10’22

SMITH

Sadie Isobel

• Late of Edmund Hillary Retirement Village, Abbotts Way, Remuera, Auckland

• Retired school teacher

• Aged 89 / Died 06’09’22

from page 07 disputes.

First set up in 1976 as the Small Claims Tribunal, the tribunal has evolved to hear cases worth up to 60 times more than the original $500 remit. However, 60% of cases involve sums under $5,000, although an increasing number of claims exceed the current $30,000 jurisdictional cap. The kinds of disputes the tribunal helps resolve include damage from vehicle accidents, fencing spats between neighbours and business deals that have soured.

Hearings are held in private; agreement is encouraged as a first solution, with the tribunal empowered to determine cases if agreement cannot be reached; referees impartially help the parties through an evaluative and inquisitorial approach; and a right of appeal exists only for procedural unfairness issues.

“The Disputes Tribunal performs a key role in the overall civil dispute resolution system, providing access to civil justice in smaller straightforward matters through to matters that are of considerable monetary or other significance to the parties involved,” the committee says.

Support was widespread among submitters for raising the tribunal’s jurisdiction cap to $70,000 as

of right, an “incremental increase, particularly in light of the eroding value of money”, the committee notes. There’s little risk the increase will crowd out smallervalue claims. And higher-value disputes have already arisen, except the current cap excludes that part of parties’ claims.

The increase to $100,000 by consent is conditional on creating a general appeal right. While the committee recognises that the current procedural unfairness appeal right is still proportionate to lowervalue claims, the stakes are higher with disputes exceeding $30,000 and parties might well decline to make use of the increased cap if they don’t have a substantive right of appeal.

“There is confidence that an increase of the jurisdiction to $70,000 as of right and $100,000 by consent is a manageable and sought-after progression,” the committee says.

History

The Rules Committee embarked on its review in 2019, proposing four reforms: introducing short trials in the District and High Courts, an inquisitorial process for certain claims, a requirement that civil claims start off as applications for summary judgment and streamlining current trial processes to reduce their

complexity and length.

Across three consultation papers, stakeholders submitted on the proposals and commented on more general issues about access to civil justice. Many agreed the issue was significant, the final report said, with the New Zealand Law Society referring to the “justice gap” that has been “slow-burning for at least a generation”. And any response had to address the broader culture of how civil litigation is practised.

By the committee’s third consultation paper in 2021, proposed reforms had widened beyond the initial four proposals, leading to the Attorney-General and Minister of Justice to agree to the broader scope.

While the Disputes Tribunal and District Court recommendations were relatively unchanged, the committee’s proposed reforms to the rules of court had “materially changed”. The committee hasn’t recommended introducing more inquisitorial processes in the District Court as the current rules provide enough flexibility to use them where required.

The committee is seeking further consultation on those proposals, and will take submissions into account when deciding upon implementation at its first meeting in 2023.

Stakeholders have until Friday 24 February 2023 to submit. ■

ADLS Annual Breakfast

2022,