significant judgments

I have listed below a selection of court judgments and tribunal decisions where I have appeared as counsel. I have not referred to cases that settled or that were subject to confidentiality orders. Please scroll down:

New Zealand Animal Law Association v Attorney-General, Minister for Primary Industries [2020] NZHC 3009 (High Court)

New Zealand Animal Law Association v Attorney-General, Ministry for Primary Industries [2020] NZHC 2376 (High Court)

Acting for the applicants, on a pro bono basis, in their successful landmark challenge to the validity of regulations and minimum standards authorising the use of farrowing crates in the factory farming of pigs.

The Court also declined, in an interlocutory judgment, to permit an industry body, NZ Pork, to have access to the applicants’ submissions and evidence.

Application by SkyCity Casino Management Ltd and SkyCity Hamilton Ltd Gambling Commission Decision GC16/20, 15 May 2020 Acting for SkyCity in a test case relating to the substitution of EGMs and table games under s 12 of the Gambling Act 2003. This was a two week defended hearing, with multiple opposing parties, and extensive expert evidence relating to harm minimisation.
Middeldorp v Avondale Jockey Club Inc [2020] NZHC 1748 (High Court)

Middeldorp v Avondale Jockey Club Inc [2020] NZCA 13 (Court of Appeal)

Middeldorp v Avondale Jockey Club Inc [2019] NZHC 901 (High Court)

Acting for the respondent racing Club in its (largely successful) defence of a wide-ranging challenge to its governance. The judgments are significant because of their acceptance of jurisdiction to judicially review a voluntary incorporated society, their ruling that a power to suspend must be express not implied, and their approach to the remedial discretion.
E v Ministry of Business Innovation and Employment [2019] NZCA 658 (Court of Appeal) Test case holding that a “significant change in circumstances” under s 140 of the Immigration Act 2009 can include new evidence (here new expert evidence of torture). I lodged the appeal on a pro bono basis, then argued the refugee claimant’s successful appeal as counsel assisting the Court
Cullen Group Ltd v Commissioner of Inland Revenue [2019] NZHC 404 (High Court) Acting for Commissioner in a high profile three week tax avoidance trial, involving companies owned by Eric Watson. The Court upheld the Commissioner’s ruling that the scheme was tax avoidance and that over $112 million was payable by Cullen Group.
Commissioner of Inland Revenue v Cullen Group Ltd [2018] NZCA 166; (2018) 28 NZTC 23-059 (Court of Appeal)

Cullen Group Ltd v Commissioner of Inland Revenue [2017] NZHC 3260 (High Court)

Acting for the Commissioner in resisting further discovery of documents said to be “extrinsic aids” relevant to a statutory interpretation issue. The Court of Appeal judgment is novel in that the Commissioner’s appeal was allowed by consent.
Erceg v Erceg [2017] NZSC 28; [2017] 1 NZLR 320; (2017) 4 NZTR 27-003 (Supreme Court) Acting for trustees in their successful defence of an appeal in a test case regarding the approach the courts should take to an application by a beneficiary for access to information and documents relating to a trust.
Erceg v Erceg [2016] NZSC 135; [2017] 1 NZLR 310 (Supreme Court) A key ruling on the principles that determine when the Supreme Court will grant a non-publication order binding on the public at large in a civil case.
E v Ministry of Business Innovation and Employment [2016] NZHC 2599 (High Court) Judicial review. Refugee case. Successful application (as counsel assisting the Court advancing argument for the applicant) for leave to commence proceeding out of time. In issue was whether earlier credibility findings could be relied on to reject an expert medical report containing findings “highly consistent” with torture.
Erceg v Erceg [2016] NZCA 7, [2016] 2 NZLR 622; (2016) 4 NZTR 26-001 (Court of Appeal)

Erceg v Erceg [2015] NZHC 594; [2015] 4 NZTR 25-010, (2015) NZAR 1239 [2015] NZAR 1239 (High Court)

Erceg v Erceg [2015] NZHC 915 (High Court)

Acting for trustees in their successful defence of a proceeding brought by a beneficiary seeking access to information. The Court of Appeal took the opportunity to restate the relevant principles. Also in issue was whether an interest under a discretionary trust can constitute “property” as defined in the Insolvency Act 2006
Taylor v Attorney-General [2013] NZHC 1659 (High Court) Judicial review of new regulations to enforce a prison smoking ban. Appointed as counsel assisting the Court, and, with the applicant, successfully argued that the regulations were invalid.
Carroll v Coroner’s Court at Auckland [2013] NZHC 906; [2013] NZAR 650 (High Court) Judicial review of a finding by a Coroner in relation to the disappearance of Iraena Asher. Appointed as counsel assisting the Court.
Taylor v Manager of Auckland Prison [2012] NZHC 3591 (High Court) Judicial review of a rule banning smoking by prisoners. Appointed as counsel assisting the Court, and, with the applicant, successfully argued that the rule was invalid.
Telecom Corporation of New Zealand Ltd v Commerce Commission [2012] NZCA 344 (Court of Appeal)

Telecom Corporation of New Zealand v Commerce Commission Ltd [2012] NZCA 278 (Court of Appeal)

Commerce Commission v Telecom Corporation of New Zealand Ltd (2011) 13 TCLR 270; [2011] NZCCLR 19 (High Court)

Commerce Commission v Telecom Corporation of New Zealand Ltd, High Court, 9 October 2009, Rodney Hansen J, Professor Martin Richardson

Acting for Commerce Commission in its successful proceeding against Telecom for taking advantage of its market power in its wholesale pricing of high speed data services (“data tails”) in breach of s 36 of the Commerce Act 1986. A penalty of $12m was awarded by the High Court. Telecom’s breach was confirmed (and extended) on appeal. The Court of Appeal also upheld the $12m penalty.
Waikato Regional Airport Ltd v Comptroller of Customs [2011] NZAR 43 (High Court) Acting for WRAL in its successful judicial review of decision of Comptroller of Customs to charge WRAL for passenger clearance services, on grounds of improper purpose.
Commerce Commission v Telecom Corporation of New Zealand Ltd [2011] 1 NZLR 577 (Supreme Court).

Commerce Commission v Telecom Corporation of New Zealand Limited (2009) 12 TCLR 457; [2010] NZCCLR 10 (Court of Appeal)

Acting for the Commission (with J Farmer QC) in its appeals in a proceeding against Telecom alleging that in introducing its “0867” scheme Telecom took advantage of its market power in breach of s 36 of the Commerce Act. In the Supreme Court the principal issue was whether the New Zealand Courts should continue to apply the Privy Council’s “counterfactual test” as the sole test of taking advantage of market power.
SkyCity Auckland Ltd v Gambling Commission [2008] 2 NZLR 183 (Court of Appeal).

SkyCity Auckland Ltd v Gambling Commission, High Court, 24 August 2006, Cooper J.

Acting for SkyCity (with A Galbraith QC) in a test case seeking a declaration on the proper interpretation of certain key provisions of the Gambling Act 2003.
Lai v Chamberlains [2007] 2 NZLR 7 (Supreme Court).

Lai v Chamberlains [2005] 3 NZLR 291 (Court of Appeal).

Lai v Chamberlains [2003] 2 NZLR 374 (High Court).

Counsel for the New Zealand Bar Association (with J Farmer QC) as intervenor in a test case about barrister’s immunity.
Commerce Commission v Telecom Corporation of NZ Ltd (2006) 18 PRNZ 251 (Court of Appeal). Acting for the Commission in its successful appeal on electronic discovery issues, in the context of a proceeding under s 36 of the Commerce Act. A test case on the issue of cost-shifting in electronic discovery, and the obligation to preserve e-documents in a readily retrievable form.
SkyCity Auckland Ltd v Gambling Commission, High Court, 22 November 2005, Lang J Acting for SkyCity in its successful appeal from a decision of Gambling Commission, the issue being whether electronic roulette is a gaming machine or table game.
Application by SkyCity Auckland Ltd to vary conditions of casino premises licence, Casino Control Authority Decision dated 3 July 2001 Acting for SkyCity in its successful application to increase the number of EGMs and table games at its Auckland Casino, in part on the basis of an undertaking by SkyCity to build its new conference centre in Federal St.
Harley v McDonald [2001] 2 WLR 749; [2002] 1 NZLR 1 (Privy Council).

Harley v McDonald [1999] 3 NZLR 545 (Court of Appeal).

Acting for the appellant in a test case on the jurisdiction of the Court to award costs against a barrister personally. The case also involved important issues relating to natural justice in the particular circumstances, and the Privy Council allowed the appeal on those grounds.
Man O’War Station v Auckland City Council [2000] 2 NZLR (Court of Appeal). Acting for appellant (with R Craddock QC) in case relating to doctrine of implied dedication of land./td>
Application by Queenstown Casino Ltd for casino premises licence, Casino Control Authority Decision dated 23 April 1999 Acting for QCL (with E Wylie QC) in its successful application for a casino premises licence in Queenstown. This followed a defended hearing of several months’ duration./td>
Queenstown Casinos Ltd v Dunedin City Council [1998] NZRMA 209 (High Court). Acting (with E Wylie QC) for QCL in a judicial review of the issue of a compliance certificate to Dunedin Casinos Ltd by the Dunedin City Council.
Application by SkyCity Casino Management Ltd for a casino operator’s licence, Decision of Casino Control Authority dated 7 May 1998 Acting (with E Wylie QC) for SkyCity in its successful application for a casino operator’s licence./td>
New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (Court of Appeal).

New Zealand Maori Council v Attorney-General, High Court, 29 March 1996, McGechan J

Acting (with J Farmer QC) for NZMC in proceedings to attempt to prevent the sale by the Crown of commercial radio assets. Treaty of Waitangi issues.
Auckland Casino Ltd v Casino Control Authority, Court of Appeal, CA 181/94, 7 March 1995.

Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142 (Court of Appeal).

Auckland Casino Limited v Casino Control Authority, High Court, 31 August 1994, Robertson J.

Acting (with P Salmon QC) for the second respondent, Sky Tower Casino Ltd in its successful defence of a judicial review challenge to a decision by the Casino Control Authority granting it a casino premises licence. This decision remains an important authority on the doctrine of apparent bias and on the factors governing the Court’s exercise of its remedial discretion.
Ancient Trees of New Zealand v Attorney-General, High Court, 29 April 1994, McGechan J Judicial review of a decision of the Ministry of Forestry declining to grant export approval for unprocessed swamp kauri. A test case on the intended meaning of a “salvaged stump”.
Natural Gas Corporation of NZ Ltd v Horowhenua Energy Ltd [1994] 3 NZLR 493 (High Court) Circumstances when a case will be shifted into Commercial List.
Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (Court of Appeal).

Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries, High Court, 6 August 1992, Ellis J

Acting for the second respondent, Sealord (with R Fardell QC) in its successful defence of a judicial review challenge to a decision of D-G in its favour. The case continues to be a significant authority on the circumstances when a judicial review proceeding may be struck out.
Faris v The Medical Practitioners Disciplinary Committee [1993] 1 NZLR 60 (High Court). Proceeding (with B H Giles and S Grieve QC) to stay charges against a medical practitioner who was facing disciplinary action as a consequence of the Cartwright Report.
SmithKline Beecham (NZ) Ltd v Minister of Health [1992] NZAR 357 (High Court). Acting (with R Fardell QC) for the applicant in its successful judicial review of a decision by the Minister to reduce the level of subsidy on its antibiotic drug augmentin.

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