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*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 Download
*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 2
*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 1
*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 -
60: Subject to a de minimis threshold: Auckland Casino Ltd v Casino Control Authority 1995 1 NZLR 142 (CA). 61: Some judges and lawyers refer to pecuniary interests as “presumptive bias”, and other types of bias as “apparent bias”. Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 restrict yourself with only traditional currencies as well, PlayAmo offers a unique opportunity Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 to deposit and withdraw through cryptocurrencies. In Auckland Casino Ltd v Casino Control Authority 1995 1 NZLR 142 AT 151 Cooke P, sitting as President of the New Zealand Court of Appeal, said this about waiver of judicial bias at the time of disclosure. “There is much authority that a party who, in the course of a hearing, has.
Table of Cases 819 Boscawen Properties Ltd v Governor-General HC Auckland M.555/93, 10 December 1993 472 Bowles v Bank of England 1913 1 Ch 57 538 Bradlaugh v Gossett (1884) 12 QBD 271 8, 165, 742, 744, 799 British American Tobacco Australia Ltd v Secretary, Department of Health.Selected important decisions/reported cases in which Brian Latimour has appeared as counsel
1. Junction Motors Ltd v New Lynn Borough [1975] 2 NZLR 131 (HC)
2. New Zealand Insurance Co Ltd v New Zealand Insurance Brokers Ltd [1976] 2 NZLR 40 (HC)
3. Begley Industries Ltd v Cramp [1977] 2 NZLR 207 (CA)
4. Re Mortgage Management Ltd [1978] 1 NZLR 494 (HC)
5. Begley Industries Ltd v Cramp [1978] 1 NZLR 527 (CA)
6. Re Securitibank Ltd (in liquidation) [1978] 1 NZLR 97 (HC)
Brian appeared either as counsel for the bank-appointed Receivers or as Court-appointed Counsel in the extensive and complex litigation arising out of the collapse of the Securitibank Group of Companies. Many of these cases remain leading New Zealand decisions in the area of banking law, bills of exchange and creditors’ rights in relation to complex liquidations. Re Securitibank, involved 24 days sitting of intensive legal argument in relation to a multiplicity of issues.
7. Carter Holt Holdings Ltd v Fletcher Holdings Ltd [1980] 2 NZLR 80 (HC)
8. Molyneux v Cramp [1980] 1 NZLR 713 (CA)
9. Lamont v Bank of New Zealand [1981] 2 NZLR 142 (HC)
10. Tasman Pulp & Paper Co Ltd v Newspaper Publishers Association of New Zealand Inc [1983] NZLR 600 (CA)
11. Foreman v Hazard [1984] 1 NZLR 586 (CA)
Brian appeared as Court-appointed counsel in both the High Court and Court of Appeal to represent separately creditor groups following the collapse of the JBL group of companies.
12. Fletcher Trust and Investment Co Ltd v Guthrie’s Pharmacy Ltd [1984] 2 NZLR 418 (CA)
13. Broadcasting Corporation of New Zealand v Broadcasting Tribunal [1986] 2 NZLR 620 (CA)
14. Jagwar Holdings Ltd v Fullers Corporation Ltd (No 1) HC, Barker J, 3 February 1989 (CL85/87)
15. Kerry (New Zealand) Ltd v Taylor HC, Gault J, 29 May 1989 (CP1614/88)
16. Effem Foods Pty Ltd v Best Friend Pet Foods Ltd HC, Barker J, 23 November 1989 (CP139/89)
17. Titchener v Attorney-General (High Court, Tompkins J, 28 March 1990 (CP2488/89).
18. Auckland Regional Authority v Local Government Commission (CP528/89, Grieg J, 31 October 1989)
Following the extensive proposals for the reform of local government made by the Local Government Commission, Brian acted successfully as lead counsel for the Auckland Regional Authority (as it then was) to challenge various proposals for the re-distribution of assets following the abolition of the Auckland Harbour Board and in further litigation directly against the Harbour Board (which eventually settled) resulting in the transfer to the Auckland Regional Authority of in excess of $20 million of assets which otherwise would have been diverted from it.
19. Commissioner of Inland Revenue v Lloyds Bank Export Finance Ltd [1990] 2 NZLR 154 (CA)
Successfully appeared as lead counsel for Lloyd’s Bank in the High Court and also appeared as lead counsel in the Court of Appeal. This was a case testing the interpretation of ’assessment’ in the income tax legislation. The Privy Council (English counsel instructed) reversed the Court of Appeal decision and restored the High Court ruling on the issue.
20. McDonald v Australian Guarantee Corporation (NZ) Ltd [1990] 1 NZLR (HC)
21. Commissioner of Inland Revenue v McDonald [1991] 1 NZLR 419 (CA)
Successfully appeared as lead counsel for a consortium of banks in both the High Court – case 20 above - and Court of Appeal to determine the correct application of the Corporations (Investigation and Management) Act 1989 to costs issues and entitlements.
22. Dodds v Smith (High Court, Master Towle, 26 July 1991 (CP31/90))
23. Security Pacific Asia Ltd v SBSA (NZ) Ltd (High Court, Thomas J, 5 December 1994; Security Pacific Asia Ltd v SBSA (NZ) Ltd [1995] 3 NZLR 379 (HC)
24. Deloitte Haskins and Sells v National Mutual Life Nominees Ltd [1993] 3 NZLR 1 (Judicial Committee)
Auditors liability, duty of care alleged to arise from statutory obligations. Brian appeared as a junior counsel in the Privy Council. Peter Goldsmith QC of the English Bar instructed as lead counsel.
25. Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd [1993] 2 NZLR 617 (HC)
26. Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd (No 2) [1993] 2 NZLR 657 (HC)
Successfully appeared as lead counsel in the High Court – see case 25 above - and before a Full Court on the Court of Appeal on what was the first major case and a leading decision on insider trading laws.
27. Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd [1994] 2 NZLR 152 (CA)
28. Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA)
29. Worldwide Leisure Ltd v Symphony Group Ltd [1995] NZAR 177 (HC)
Appeared (successfully - Court of Appeal not reported) as lead counsel in the High Court and Court of Appeal for the owners of Huka Lodge in one of the first major cases challenging a Council’s decision to proceed on a non-notified basis under the Resource Management Act 1991.
30. Fay, Richwhite & Co Ltd v Davison [1995] 1 NZLR 517 (CA)
31. Security Pacific Asia Ltd v SBSA (NZ) Ltd [1995] 3 NZLR 379 (HC)
32. Spicers Paper (NZ) Ltd v Whitcoulls Group Ltd (CA186/94, 27 February 1995)
33. WEL Energy Trust v Waikato Electricity Authority (CA247/94, 13 December 1995)
34. New Zealand Magazines Ltd v Karen — Lady Hadlee (CA74/96, 24 October 1996)
35. Fay Richwhite v Davison [1997] NZAR 563 (HC)
36. Mackay Refined Sugars (NZ) Ltd v New Zealand Sugar Co Ltd [1997] 3 NZLR 476 (HC)
37. Millark Properties Ltd v Auckland City Council [1998] NZRMA 573 (HC)
38. Commerce Commission v Taylor Preston (1998) 6 NZBLC 102, 598 (HC)
Acted as lead counsel for AFFCO (the largest operator in the market) in relation to significant contraventions by 8 meat companies of the Commerce Act 1986. All defendants eventually entered into Court-approved settlements.
39. Avon Cosmetics v Collector of Customs [1999] NZAR 345 (HC)
40. Collector of Customs v Avon Cosmetics Ltd (CA101/99, 9 November 1999)
41. B v Auckland District Law Society (2000) 14 PRNZ 423 (HC)
42. Auckland District Law Society v Russell McVeagh McKenzie Bartleet & Co (2000) 15 PRNZ 417 (HC)
43. Auckland District Law Society v B [Leave to Appeal] (2001) 15 PRNZ 730 (CA)
44. Auckland District Law Society v B [2002] 1 NZLR 721 (CA)
45. Russell McVeagh v Auckland District Law Society (2002) 16 PRNZ 508 (HC)
46. B v Auckland District Law Society [2004] 1 NZLR 326 (PC)
Brian was involved in appearances as second counsel with Mr Craddock QC before disciplinary committees of both the Auckland and Wellington District Law Societies, before the High Court, before a Full Court of the Court of Appeal, and before the Privy Council (where Mr Jonathan Sumption QC was briefed as lead counsel). The decision of the Privy Council is now a leading decision in New Zealand affirming various principles relating to legal professional privilege. (Cases 41 - 46).
47. Riverside Casino Ltd v Moxon [2001] 2 NZLR 78 (CA)
48. Ord v Calan Healthcare Properties Ltd [2004] 2 NZLR 122 (HC)
49. Maruha Corp v Amaltal Corp [Exclusion of Witnesses] (2004) 17 PRNZ 67
50. Maruha Corp v Amaltal Corp [Discovery of Translation] (2004) 19 PRNZ 71 (HC)
51. Maruha Corp v Amaltal Corp [Undiscovered Document] (2004) 17 PRNZ 77 (HC)
52. Maruha Corp v Amaltal Corp [Exclusion of Expert] (2004) 17 PRNZ 83 (HC)
53. Maruha Corp v Amaltal (High Court, Auckland, CIV-2003-404-001773, 19 October 2004, Priestley J)
The Maruha v Amaltal litigation (2004 — 2006): This involved 2 separate claims within one proceeding. Each claim plus interest was in the order of $14 million. Brian was instructed by the defendant to act as lead counsel and conducted the 4 to 6 week trial. Brian also appeared as second counsel in various appeals and cross-appeals to the Court of Appeal and Supreme Court. Numerous reported and unreported decisions arose from this complex litigation (refer cases 49 to 52, 54 to56).
54. Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA)
55. Maruha Corp v Amaltal Corp Ltd (High Court, Auckland, CIV 2002-404-1773, 8 May 2006, Priestley J) [Pre-judgment interest]
56. Amaltal Corporation Ltd v Maruha Corporation [2007] 3 NZLR 192 (SC)
57. Ord & Fenton v Calan Healthcare Properties Ltd [2005] 2 NZLR 96 (CA)
58. Latimer Holdings Ltd v SEA Holdings New Zealand Ltd [2005] 2 NZLR 328 (CA)
Appeared as lead counsel in the High Court and Court of Appeal. This is a leading decision of the Court of Appeal reviewing the law on minority shareholder claims under s174 of the Companies Act 1993, including in relation to public listed companies.
59. Carter Holt Harvey Ltd v North Shore City Council [2006] 2 NZLR 787 (HC)
Acted as lead counsel for CHH to obtain orders quashing bylaws which imposed levies on ’waste’ on the grounds that local authorities have no power to tax absent express power conferred by Parliament, and (case 60) successfully acted as lead counsel in the Court of Appeal also quashing related licensing bylaws as also invalid.
60. Carter Holt Harvey Ltd v North Shore City Council [2008] 1 NZLR 744 (CA)
61. Carter Holt Harvey Ltd v Genesis Power Ltd (High Court, Auckland, CIV 2001-404-1974, Randerson J, 24 October 2006)
62. The Proprietors of Maraeroa C Block and Ors v NZ Forest Products Ltd & Ors (Maori Land Court, A20060028157, 22 March 2007)
63. Bank of New Zealand v Deloitte Touche Tohmatsu [2007] 1 NZLR 663 (HC)
64. Osmose New Zealand v Wakeling [2007] 1 NZLR 841 (HC)
65. Carter Holt Harvey Ltd v Rolls Royce New Zealand Ltd (Court of Appeal, CA256/06, Glazebrook, Hammond and Wilson JJ, 13 November 2007)
66. Bank Of New Zealand v New Zealand Exchange Ltd [2009] 1 NZLR 53 (CA)
67. Carter Holt Harvey Ltd v Genesis Power Ltd (No 8) HC Auckland CIV-2001-404-1974, 29 August 2008.
68. Stayinfront Inc v Tobin [2008] NZCA 367.
69. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 21 April 2009.
70. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 28 May 2009.
71. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 28 May 2009.
72. Carter Holt Harvey Ltd v Genesis Power Ltd (No. 1) HC Auckland CIV-2001-404-1974, 23 June 2009.
73. Carter Holt Harvey Ltd v Genesis Power Ltd (2009) 20 PRNZ 87.
74. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 10 September 2009.
75. Re Godfrey Hirst NZ Ltd HC Wellington CIV-2011-485-1257, 8 July 2011.
76. NZX Ltd v Ralec Commodities Pty Ltd HC wellington CIV-2011-485-1299, 22 November 2011.
77. NZX Ltd v Ralec Commodities Pty Ltd [2012] NZHC 1585.
78. NZX Ltd v Ralec Commodities Pty Ltd [2012] NZHC 1641.
4.1
This Part considers whether the Act should be repealed or retained, and in what form. In our view, it is desirable to continue to have legislation that fulfils the function of the discussing and voting rule, but we have doubts as to whether the contracting rule needs to be retained. We favour retaining the Act as a stand-alone statute, and we favour rewriting the entire Act rather than just amending specific provisions.
4.2
We assess the discussing and voting rule and the contracting rule separately.The discussing and voting rule
4.3
The discussing and voting rule is a partial codification of the common (i.e. judge-made) law about bias in public body decision-making. It needs to be considered in the context of this wider law.
4.4
The relevant legal principle58 is encapsulated in the phrase nemo judex in causa sua, meaning “no person shall be a judge in their own cause”. It exists to ensure that persons with the power to make decisions affecting the rights and obligations of others carry out their duties fairly and free from prejudice. If a decision is tainted by bias, the courts may declare it invalid. The general test is whether there is, to a reasonable observer, a real danger of bias on the part of a member of the decision-making body.59
4.5
The fact that the statutory discussing and voting rule applies only to interests of a pecuniary nature reflects a long-standing distinction in the common law, which treats pecuniary interests more strictly than other – non-pecuniary – types of bias. Under the common law, a pecuniary interest amounts to an automatic disqualification from participation in the decision,60 regardless of any suggestion or likelihood of actual or apparent bias. In other words, where the interest is financial, bias is presumed to exist.61
4.6
The common law principle about bias is long-standing and widely regarded as significant. Everyone accepts that public office-holders should use their official positions only in the public interest, and that they should not have the opportunity to use their positions for personal benefit.
4.7
But, given the existence of the common law, the question may then be asked why the legal principle needs to be expressed in statutory form as well. We consider that having the discussing and voting rule in legislation has several advantages:
*A well-written statute should promote certainty, transparency and accessibility of the law. Members of local authorities are more likely to be aware of a statutory rule, and to know how to comply with it.
*A statutory expression of the rule will provide a clear external framework for the most important legal limitations on members’ participation in decision-making. Pecuniary conflicts of interest are the most serious category of conflicts of interest, and a category for which strict and absolute rules apply. Retention of the discussing and voting rule in statutory form will highlight the particular importance of pecuniary interests.
*The statutory rule encourages personal responsibility. The Act, unlike the common law, establishes a penalty that can be imposed upon individual members.
4.8
Why should there be a special statement of the law for local authorities, when the law about bias applies to all bodies exercising public powers? This may be because members of local authorities are considered to be at particular risk of breaching the rule against bias. By definition, local authorities are concerned with matters affecting a small community in a defined geographical area. Members usually reside within that area, and so are likely to have personal interests in the area that from time to time are affected by decisions of the authority. In addition, local authorities may be made up of a higher proportion of part-time and non-professional members than other public bodies, and so may more usefully benefit from a clear statutory statement of important rules. The palace casino tuscaloosa al menu.
4.9
Moreover, it is increasingly common for other public bodies to have statutory rules about conflicts of interest (mostly covering similar ground to the discussing and voting rule) inserted into their own governing legislation.62 Similar laws also continue to exist in foreign jurisdictions, and a summary of some of those overseas laws is included as the Appendix to this report.63 All foreign jurisdictions reviewed have a rule very similar to the discussing and voting rule.
4.10
There have been very few prosecutions under the Act.64 However, the Act does not rely on regular enforcement action in order to be effective. Ideally, if it is working well, members will not breach it at all. We understand that local authority awareness of the Act is generally high. Moreover, the Act does not appear to be irrelevant. We continue to receive a steady stream of enquiries about the Act, and complaints about alleged breaches of the discussing and voting rule.
4.11
We are convinced that the purpose and principles underlying the discussing and voting rule remain sound and relevant today. The nature of local authorities and their decision-making processes have not changed in a way that affects the continuing validity or relevance of the principles discussed above.Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 Download
4.12
Accordingly, we consider that it is desirable to continue to have legislation that fulfils the function of the discussing and voting rule.The contracting rule
4.13
We take a different view of the contracting rule, and doubt whether it needs to be retained. Genting highland casino age limit.
4.14
While the contracting rule reflects concerns about the potential for a member to profit from their public position, strictly speaking it is not actually part of the law about bias, because it is not connected to participation in decisionmaking processes. The contracting rule applies regardless of whether or not the member participated in formal decision-making about the contract. It involves a wider probity question, concerning a person’s suitability to even hold office.
4.15
The underlying principle seems to be that the mere existence of contracts over a certain value represents either a conflict of interest so pervasive, or an indication of improper behaviour so compelling, that the member should be disqualified from office.
4.16
We do not find this principle convincing. Being interested in a valuable contract or series of contracts will certainly create a conflict of interest for the member in certain areas of the local authority’s business. But this need not prevent the person from being a valuable and impartial member in other areas. Automatic disqualification from office may be too harsh a consequence.
4.17
Concerns about the potential for undue influence or preferential treatment can be satisfactorily addressed if the authority follows thorough, transparent and competitive processes in awarding large contracts. Such practices may not have always been the case, but are standard for
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*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 Download
*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 2
*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 1
*Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 -
60: Subject to a de minimis threshold: Auckland Casino Ltd v Casino Control Authority 1995 1 NZLR 142 (CA). 61: Some judges and lawyers refer to pecuniary interests as “presumptive bias”, and other types of bias as “apparent bias”. Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 restrict yourself with only traditional currencies as well, PlayAmo offers a unique opportunity Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 to deposit and withdraw through cryptocurrencies. In Auckland Casino Ltd v Casino Control Authority 1995 1 NZLR 142 AT 151 Cooke P, sitting as President of the New Zealand Court of Appeal, said this about waiver of judicial bias at the time of disclosure. “There is much authority that a party who, in the course of a hearing, has.
Table of Cases 819 Boscawen Properties Ltd v Governor-General HC Auckland M.555/93, 10 December 1993 472 Bowles v Bank of England 1913 1 Ch 57 538 Bradlaugh v Gossett (1884) 12 QBD 271 8, 165, 742, 744, 799 British American Tobacco Australia Ltd v Secretary, Department of Health.Selected important decisions/reported cases in which Brian Latimour has appeared as counsel
1. Junction Motors Ltd v New Lynn Borough [1975] 2 NZLR 131 (HC)
2. New Zealand Insurance Co Ltd v New Zealand Insurance Brokers Ltd [1976] 2 NZLR 40 (HC)
3. Begley Industries Ltd v Cramp [1977] 2 NZLR 207 (CA)
4. Re Mortgage Management Ltd [1978] 1 NZLR 494 (HC)
5. Begley Industries Ltd v Cramp [1978] 1 NZLR 527 (CA)
6. Re Securitibank Ltd (in liquidation) [1978] 1 NZLR 97 (HC)
Brian appeared either as counsel for the bank-appointed Receivers or as Court-appointed Counsel in the extensive and complex litigation arising out of the collapse of the Securitibank Group of Companies. Many of these cases remain leading New Zealand decisions in the area of banking law, bills of exchange and creditors’ rights in relation to complex liquidations. Re Securitibank, involved 24 days sitting of intensive legal argument in relation to a multiplicity of issues.
7. Carter Holt Holdings Ltd v Fletcher Holdings Ltd [1980] 2 NZLR 80 (HC)
8. Molyneux v Cramp [1980] 1 NZLR 713 (CA)
9. Lamont v Bank of New Zealand [1981] 2 NZLR 142 (HC)
10. Tasman Pulp & Paper Co Ltd v Newspaper Publishers Association of New Zealand Inc [1983] NZLR 600 (CA)
11. Foreman v Hazard [1984] 1 NZLR 586 (CA)
Brian appeared as Court-appointed counsel in both the High Court and Court of Appeal to represent separately creditor groups following the collapse of the JBL group of companies.
12. Fletcher Trust and Investment Co Ltd v Guthrie’s Pharmacy Ltd [1984] 2 NZLR 418 (CA)
13. Broadcasting Corporation of New Zealand v Broadcasting Tribunal [1986] 2 NZLR 620 (CA)
14. Jagwar Holdings Ltd v Fullers Corporation Ltd (No 1) HC, Barker J, 3 February 1989 (CL85/87)
15. Kerry (New Zealand) Ltd v Taylor HC, Gault J, 29 May 1989 (CP1614/88)
16. Effem Foods Pty Ltd v Best Friend Pet Foods Ltd HC, Barker J, 23 November 1989 (CP139/89)
17. Titchener v Attorney-General (High Court, Tompkins J, 28 March 1990 (CP2488/89).
18. Auckland Regional Authority v Local Government Commission (CP528/89, Grieg J, 31 October 1989)
Following the extensive proposals for the reform of local government made by the Local Government Commission, Brian acted successfully as lead counsel for the Auckland Regional Authority (as it then was) to challenge various proposals for the re-distribution of assets following the abolition of the Auckland Harbour Board and in further litigation directly against the Harbour Board (which eventually settled) resulting in the transfer to the Auckland Regional Authority of in excess of $20 million of assets which otherwise would have been diverted from it.
19. Commissioner of Inland Revenue v Lloyds Bank Export Finance Ltd [1990] 2 NZLR 154 (CA)
Successfully appeared as lead counsel for Lloyd’s Bank in the High Court and also appeared as lead counsel in the Court of Appeal. This was a case testing the interpretation of ’assessment’ in the income tax legislation. The Privy Council (English counsel instructed) reversed the Court of Appeal decision and restored the High Court ruling on the issue.
20. McDonald v Australian Guarantee Corporation (NZ) Ltd [1990] 1 NZLR (HC)
21. Commissioner of Inland Revenue v McDonald [1991] 1 NZLR 419 (CA)
Successfully appeared as lead counsel for a consortium of banks in both the High Court – case 20 above - and Court of Appeal to determine the correct application of the Corporations (Investigation and Management) Act 1989 to costs issues and entitlements.
22. Dodds v Smith (High Court, Master Towle, 26 July 1991 (CP31/90))
23. Security Pacific Asia Ltd v SBSA (NZ) Ltd (High Court, Thomas J, 5 December 1994; Security Pacific Asia Ltd v SBSA (NZ) Ltd [1995] 3 NZLR 379 (HC)
24. Deloitte Haskins and Sells v National Mutual Life Nominees Ltd [1993] 3 NZLR 1 (Judicial Committee)
Auditors liability, duty of care alleged to arise from statutory obligations. Brian appeared as a junior counsel in the Privy Council. Peter Goldsmith QC of the English Bar instructed as lead counsel.
25. Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd [1993] 2 NZLR 617 (HC)
26. Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd (No 2) [1993] 2 NZLR 657 (HC)
Successfully appeared as lead counsel in the High Court – see case 25 above - and before a Full Court on the Court of Appeal on what was the first major case and a leading decision on insider trading laws.
27. Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd [1994] 2 NZLR 152 (CA)
28. Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA)
29. Worldwide Leisure Ltd v Symphony Group Ltd [1995] NZAR 177 (HC)
Appeared (successfully - Court of Appeal not reported) as lead counsel in the High Court and Court of Appeal for the owners of Huka Lodge in one of the first major cases challenging a Council’s decision to proceed on a non-notified basis under the Resource Management Act 1991.
30. Fay, Richwhite & Co Ltd v Davison [1995] 1 NZLR 517 (CA)
31. Security Pacific Asia Ltd v SBSA (NZ) Ltd [1995] 3 NZLR 379 (HC)
32. Spicers Paper (NZ) Ltd v Whitcoulls Group Ltd (CA186/94, 27 February 1995)
33. WEL Energy Trust v Waikato Electricity Authority (CA247/94, 13 December 1995)
34. New Zealand Magazines Ltd v Karen — Lady Hadlee (CA74/96, 24 October 1996)
35. Fay Richwhite v Davison [1997] NZAR 563 (HC)
36. Mackay Refined Sugars (NZ) Ltd v New Zealand Sugar Co Ltd [1997] 3 NZLR 476 (HC)
37. Millark Properties Ltd v Auckland City Council [1998] NZRMA 573 (HC)
38. Commerce Commission v Taylor Preston (1998) 6 NZBLC 102, 598 (HC)
Acted as lead counsel for AFFCO (the largest operator in the market) in relation to significant contraventions by 8 meat companies of the Commerce Act 1986. All defendants eventually entered into Court-approved settlements.
39. Avon Cosmetics v Collector of Customs [1999] NZAR 345 (HC)
40. Collector of Customs v Avon Cosmetics Ltd (CA101/99, 9 November 1999)
41. B v Auckland District Law Society (2000) 14 PRNZ 423 (HC)
42. Auckland District Law Society v Russell McVeagh McKenzie Bartleet & Co (2000) 15 PRNZ 417 (HC)
43. Auckland District Law Society v B [Leave to Appeal] (2001) 15 PRNZ 730 (CA)
44. Auckland District Law Society v B [2002] 1 NZLR 721 (CA)
45. Russell McVeagh v Auckland District Law Society (2002) 16 PRNZ 508 (HC)
46. B v Auckland District Law Society [2004] 1 NZLR 326 (PC)
Brian was involved in appearances as second counsel with Mr Craddock QC before disciplinary committees of both the Auckland and Wellington District Law Societies, before the High Court, before a Full Court of the Court of Appeal, and before the Privy Council (where Mr Jonathan Sumption QC was briefed as lead counsel). The decision of the Privy Council is now a leading decision in New Zealand affirming various principles relating to legal professional privilege. (Cases 41 - 46).
47. Riverside Casino Ltd v Moxon [2001] 2 NZLR 78 (CA)
48. Ord v Calan Healthcare Properties Ltd [2004] 2 NZLR 122 (HC)
49. Maruha Corp v Amaltal Corp [Exclusion of Witnesses] (2004) 17 PRNZ 67
50. Maruha Corp v Amaltal Corp [Discovery of Translation] (2004) 19 PRNZ 71 (HC)
51. Maruha Corp v Amaltal Corp [Undiscovered Document] (2004) 17 PRNZ 77 (HC)
52. Maruha Corp v Amaltal Corp [Exclusion of Expert] (2004) 17 PRNZ 83 (HC)
53. Maruha Corp v Amaltal (High Court, Auckland, CIV-2003-404-001773, 19 October 2004, Priestley J)
The Maruha v Amaltal litigation (2004 — 2006): This involved 2 separate claims within one proceeding. Each claim plus interest was in the order of $14 million. Brian was instructed by the defendant to act as lead counsel and conducted the 4 to 6 week trial. Brian also appeared as second counsel in various appeals and cross-appeals to the Court of Appeal and Supreme Court. Numerous reported and unreported decisions arose from this complex litigation (refer cases 49 to 52, 54 to56).
54. Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA)
55. Maruha Corp v Amaltal Corp Ltd (High Court, Auckland, CIV 2002-404-1773, 8 May 2006, Priestley J) [Pre-judgment interest]
56. Amaltal Corporation Ltd v Maruha Corporation [2007] 3 NZLR 192 (SC)
57. Ord & Fenton v Calan Healthcare Properties Ltd [2005] 2 NZLR 96 (CA)
58. Latimer Holdings Ltd v SEA Holdings New Zealand Ltd [2005] 2 NZLR 328 (CA)
Appeared as lead counsel in the High Court and Court of Appeal. This is a leading decision of the Court of Appeal reviewing the law on minority shareholder claims under s174 of the Companies Act 1993, including in relation to public listed companies.
59. Carter Holt Harvey Ltd v North Shore City Council [2006] 2 NZLR 787 (HC)
Acted as lead counsel for CHH to obtain orders quashing bylaws which imposed levies on ’waste’ on the grounds that local authorities have no power to tax absent express power conferred by Parliament, and (case 60) successfully acted as lead counsel in the Court of Appeal also quashing related licensing bylaws as also invalid.
60. Carter Holt Harvey Ltd v North Shore City Council [2008] 1 NZLR 744 (CA)
61. Carter Holt Harvey Ltd v Genesis Power Ltd (High Court, Auckland, CIV 2001-404-1974, Randerson J, 24 October 2006)
62. The Proprietors of Maraeroa C Block and Ors v NZ Forest Products Ltd & Ors (Maori Land Court, A20060028157, 22 March 2007)
63. Bank of New Zealand v Deloitte Touche Tohmatsu [2007] 1 NZLR 663 (HC)
64. Osmose New Zealand v Wakeling [2007] 1 NZLR 841 (HC)
65. Carter Holt Harvey Ltd v Rolls Royce New Zealand Ltd (Court of Appeal, CA256/06, Glazebrook, Hammond and Wilson JJ, 13 November 2007)
66. Bank Of New Zealand v New Zealand Exchange Ltd [2009] 1 NZLR 53 (CA)
67. Carter Holt Harvey Ltd v Genesis Power Ltd (No 8) HC Auckland CIV-2001-404-1974, 29 August 2008.
68. Stayinfront Inc v Tobin [2008] NZCA 367.
69. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 21 April 2009.
70. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 28 May 2009.
71. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 28 May 2009.
72. Carter Holt Harvey Ltd v Genesis Power Ltd (No. 1) HC Auckland CIV-2001-404-1974, 23 June 2009.
73. Carter Holt Harvey Ltd v Genesis Power Ltd (2009) 20 PRNZ 87.
74. Carter Holt Harvey Ltd v Genesis Power Ltd HC Auckland CIV-2001-404-1974, 10 September 2009.
75. Re Godfrey Hirst NZ Ltd HC Wellington CIV-2011-485-1257, 8 July 2011.
76. NZX Ltd v Ralec Commodities Pty Ltd HC wellington CIV-2011-485-1299, 22 November 2011.
77. NZX Ltd v Ralec Commodities Pty Ltd [2012] NZHC 1585.
78. NZX Ltd v Ralec Commodities Pty Ltd [2012] NZHC 1641.
4.1
This Part considers whether the Act should be repealed or retained, and in what form. In our view, it is desirable to continue to have legislation that fulfils the function of the discussing and voting rule, but we have doubts as to whether the contracting rule needs to be retained. We favour retaining the Act as a stand-alone statute, and we favour rewriting the entire Act rather than just amending specific provisions.
4.2
We assess the discussing and voting rule and the contracting rule separately.The discussing and voting rule
4.3
The discussing and voting rule is a partial codification of the common (i.e. judge-made) law about bias in public body decision-making. It needs to be considered in the context of this wider law.
4.4
The relevant legal principle58 is encapsulated in the phrase nemo judex in causa sua, meaning “no person shall be a judge in their own cause”. It exists to ensure that persons with the power to make decisions affecting the rights and obligations of others carry out their duties fairly and free from prejudice. If a decision is tainted by bias, the courts may declare it invalid. The general test is whether there is, to a reasonable observer, a real danger of bias on the part of a member of the decision-making body.59
4.5
The fact that the statutory discussing and voting rule applies only to interests of a pecuniary nature reflects a long-standing distinction in the common law, which treats pecuniary interests more strictly than other – non-pecuniary – types of bias. Under the common law, a pecuniary interest amounts to an automatic disqualification from participation in the decision,60 regardless of any suggestion or likelihood of actual or apparent bias. In other words, where the interest is financial, bias is presumed to exist.61
4.6
The common law principle about bias is long-standing and widely regarded as significant. Everyone accepts that public office-holders should use their official positions only in the public interest, and that they should not have the opportunity to use their positions for personal benefit.
4.7
But, given the existence of the common law, the question may then be asked why the legal principle needs to be expressed in statutory form as well. We consider that having the discussing and voting rule in legislation has several advantages:
*A well-written statute should promote certainty, transparency and accessibility of the law. Members of local authorities are more likely to be aware of a statutory rule, and to know how to comply with it.
*A statutory expression of the rule will provide a clear external framework for the most important legal limitations on members’ participation in decision-making. Pecuniary conflicts of interest are the most serious category of conflicts of interest, and a category for which strict and absolute rules apply. Retention of the discussing and voting rule in statutory form will highlight the particular importance of pecuniary interests.
*The statutory rule encourages personal responsibility. The Act, unlike the common law, establishes a penalty that can be imposed upon individual members.
4.8
Why should there be a special statement of the law for local authorities, when the law about bias applies to all bodies exercising public powers? This may be because members of local authorities are considered to be at particular risk of breaching the rule against bias. By definition, local authorities are concerned with matters affecting a small community in a defined geographical area. Members usually reside within that area, and so are likely to have personal interests in the area that from time to time are affected by decisions of the authority. In addition, local authorities may be made up of a higher proportion of part-time and non-professional members than other public bodies, and so may more usefully benefit from a clear statutory statement of important rules. The palace casino tuscaloosa al menu.
4.9
Moreover, it is increasingly common for other public bodies to have statutory rules about conflicts of interest (mostly covering similar ground to the discussing and voting rule) inserted into their own governing legislation.62 Similar laws also continue to exist in foreign jurisdictions, and a summary of some of those overseas laws is included as the Appendix to this report.63 All foreign jurisdictions reviewed have a rule very similar to the discussing and voting rule.
4.10
There have been very few prosecutions under the Act.64 However, the Act does not rely on regular enforcement action in order to be effective. Ideally, if it is working well, members will not breach it at all. We understand that local authority awareness of the Act is generally high. Moreover, the Act does not appear to be irrelevant. We continue to receive a steady stream of enquiries about the Act, and complaints about alleged breaches of the discussing and voting rule.
4.11
We are convinced that the purpose and principles underlying the discussing and voting rule remain sound and relevant today. The nature of local authorities and their decision-making processes have not changed in a way that affects the continuing validity or relevance of the principles discussed above.Auckland Casino Ltd V Casino Control Authority 1995 1 Nzlr 142 Download
4.12
Accordingly, we consider that it is desirable to continue to have legislation that fulfils the function of the discussing and voting rule.The contracting rule
4.13
We take a different view of the contracting rule, and doubt whether it needs to be retained. Genting highland casino age limit.
4.14
While the contracting rule reflects concerns about the potential for a member to profit from their public position, strictly speaking it is not actually part of the law about bias, because it is not connected to participation in decisionmaking processes. The contracting rule applies regardless of whether or not the member participated in formal decision-making about the contract. It involves a wider probity question, concerning a person’s suitability to even hold office.
4.15
The underlying principle seems to be that the mere existence of contracts over a certain value represents either a conflict of interest so pervasive, or an indication of improper behaviour so compelling, that the member should be disqualified from office.
4.16
We do not find this principle convincing. Being interested in a valuable contract or series of contracts will certainly create a conflict of interest for the member in certain areas of the local authority’s business. But this need not prevent the person from being a valuable and impartial member in other areas. Automatic disqualification from office may be too harsh a consequence.
4.17
Concerns about the potential for undue influence or preferential treatment can be satisfactorily addressed if the authority follows thorough, transparent and competitive processes in awarding large contracts. Such practices may not have always been the case, but are standard for
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