Aly joined Franks Ogilvie in 2024 as a Senior Solicitor. After graduating from Victoria University and completing her professional studies, she worked in general private practice gaining experience across a wide range of matters.
In her first two years of practice Aly appeared in the Employment Relations Authority, District Court, High Court, Court of Appeal and the Court Martial of New Zealand. She was involved in numerous mediations and negotiations, and in multiple successful judicial review challenges to Government decisions.
Aly is particularly interested in Government decision making processes and the evolution of New Zealand’s uncodified constitution. She takes satisfaction in problem solving and in providing both legal and practical advice that is comprehensive, concise and easy to understand.
In her personal time she enjoys being out in nature, going tothe driving range or tennis court, and being creative.
Summary
The Supreme Court unanimously dismissed Uber’s appeal, upholding the Court of Appeal’s decision that the true nature of the relationship between Uber and its drivers, was one of employment.
Background
The distinction between employer and contractor is significant due to the protections and benefits afforded to employees and, conversely, the obligations (or lack thereof) for businesses when engaging workers.
Section 6 of the Employment Relations Act 2000 provides that an employee is “employed by an employer to do any work for hire or reward under a contract of service”. A Court is required to look at the “real nature of the relationship” when determining whether an employment relationship exists.
The Employment Court determined that the Uber drivers were not contractors, as their written agreement specified, but were actually employees.
Court of Appeal
The CA agreed with the Employment Court that the drivers were employees but considered the Employment Court had misdirected itself on the interpretation of section 6 (the meaning of “employee”).
The CA found the reasoning of the Supreme Court in Bryson v Three Foot Six Ltd should be applied. In asking what the “real nature of the relationship” is, a Court is required to consider all relevant matters. This includes considering; the written terms of agreement, what the arrangements were in practice, the intention of the parties, and the common law tests of:
Application of Test
Real Nature of Relationship
The CA’s starting point was the substantive rights and obligations contained in the agreement and other contractual obligations of the parties. The CA first looked at the agreements as written (“in theory”), and then the agreement (“in practice”).
The documents were complex and sophisticated, and reflective of Uber’s preferred view of the relationship. This was that it would provide services to drivers, with drivers paying Uber for those services via a service fee, and that drivers are not paid by Uber, but provide transportation services to riders who pay the driver for those services with Uber acting as a payment intermediary.
In practice, the CA found that “although the driver agreement [had] been crafted to avoid the appearance of an employment relationship, many of the provisions designed to point away from employee status [were] window-dressing”. For instance, control over when, where and how drivers carry out work, was found to be exercised by Uber through its incentive schemes.
The parties’ intentions were then assessed, with the CA confirming that the labels a party places on the relationship is not determinative of intention of the relationship. The Employment Court’s consideration of evidence relating to the subjective intentions of the drivers was considered irrelevant, as the test is what would be “known to a reasonable person observing the parties’ dealings”. The key indicators of the parties’ intention were found in provisions that:
Common Law Tests
The second stage of the inquiry is to consider the common law tests, including:
After considering all relevant matters under the guidance of Bryson, the CA found the real nature of the relationship was one of employment. The factors in favour of the drivers being employees, outweighed those pointing away from employment (such as the considerations under the Integration test). Uber drivers were not carrying on their own independent transport service businesses.
Supreme Court
By a majority, the Supreme Court confirmed the CA’s interpretation of the test to be taken in determining whether a worker is an employee. Applying Bryson, section 6 is to be interpreted by determining the real nature of the relationship, which involves considering the common law tests of control, integration and the fundamental test.
A slight difference was presented in the Majority’s consideration of the Integration test, stating that "once it is accepted that Uber delivers passenger transport services to riders, drivers must be considered integrated in a more substantive sense. They are the face of Uber’s business, and the relationship between Uber and its drivers is one of co-dependency."
This contrasts with the CA’s view that this wasn’t a strong indicator of employment status.
In all other substantial aspects of applying the section 6 test, the Supreme Court majority agreed with and reinforced the CA's conclusions.
Justice Glazebrook and Justice Ellen France agreed that the drivers were employees but differed from the majority on a couple of points. They considered that the CA was wrong to disregard the parties’ actual common intention at contracting, which they considered was that the drivers were to
be independent contractors. They found the common intention should be a factor (but not determinative). The minority also considered the CA was wrong to limit its analysis to only when drivers were “logged on”. This meant consideration of factors such as freedom to work for others or providing their own equipment was restricted.
Result and Significance
The Supreme Court dismissed the appeal, upholding the CA’s decision.
The CA and Supreme Court decisions are important guidance for employers and business owners in understanding obligations owed to workers.
However, the Employment Relations Amendment Act 2026 aims to better clarify the distinction between employee and contractor by excluding “specified contractors” from the section 6 definition of employee. Specified Contractor is defined in the Act as (among other things) someone who is not restricted from performing work for any other person and who is either able to sub-contract work or is not required to be available to perform work at a specified time, on a specified day or for a minimum period.
For further information on this case or any employment issues, please contact Director Brigitte Morten.
Summary
The High Court dismissed a lawyer’s challenge of a Lawyers and Conveyancers Disciplinary Tribunal decision, to suspend him from practice for two months for refusal to provide information.
Background
Mr Kwon, a barrister specialising in immigration, had a complaint laid against him by a client’s husband. The complaint alleged Mr Kwon was at fault for an appeal to the Immigration and Protection Tribunal being made out of time, and that Mr Kwon said he would refund fees in relation to this but did not.
A Standards Committee was appointed. In investigating the complaint, they requested information under section 147 of the Lawyers and Conveyancers Act 2006 (“LCA”). They asked for all invoices, receipts, trust account records, client account information with records of payments and the terms of engagement.
Mr Kwon objected to the production of these documents on the basis of lawyer client privilege. The Lawyers Complaints Service responded that the documents were “not generally of the type that are subject to legal professional privilege” and gave him further time to comply with the s147 request.
Mr Kwon responded re-stating his position, and that he did not see legitimate grounds for the investigation into his practice.
The Standards Committee wrote to him setting out the difference between legal professional privilege and confidentiality, noting that section 147 overrode confidentiality. Section188(2) of the LCA ensures disclosure of information to a Standards Committee remains private and confidential.
Mr Kwon went on to make other arguments including that the complaint was an attempt to “extort money from him” and that the “complainants did not have standing”. He also claimed that complying with the request would contravene his fiduciary duty to his client.
The Case
The Tribunal
The key question was whether the failure to resist the section 147 request amounted to misconduct.
The Tribunal found the Standards Committee request was properly made under section 147 as the documents sought were “reasonably necessary” to investigate the complaint. It further found that Mr Kwon “totally misunderstood the provisions” of the LCA in which he referred to in refusing to provide information. This was despite the difference between confidentiality and privilege being made clear to him.
Mr Kwon provided the information sought to the Tribunal, but the Tribunal concluded that Mr Kwon’s resistance to the section 147 request was wilful and repeated, and therefore amounted to misconduct. Emphasis was placed on the importance of complying with section 147 requests:
In a separate penalty decision, the Tribunal censured Mr Kwon and suspended him, considering “the need for general and specific deterrence in this case to be significant”. They gave Mr Kwon“ considerable credit” that a few weeks before the hearing he had changed approach and demonstrated remorse, discontinuing an appeal against the misconduct decision. Another mitigating factor was that he had finally produced the requested information at the Tribunal stage.
The High Court
Mr Kwon appealed the Tribunal's penalty decision, arguing his suspension was unnecessary for public protection, the Tribunal improperly considered a previous unsatisfactory conduct finding, and that the penalty failed to adequately consider his rehabilitation and was not the least restrictive penalty necessary.
The Court applied the decision of Daniels v Complaints Committee 2 of the Wellington District Law Society which considered the Tribunal’s penalty function:
Mr Kwon failed to satisfy the Court that the Tribunal was wrong. Affirming the importance of deterrence in the circumstances, the Court stated that “compliance with Standards Committee orders is not negotiable”.
Result
The High Court upheld the Tribunal’s orders which included a two month suspension, censure and a requirement to take advice on the management of his practice from a senior practitioner for 12 month, and costs.
These decisions show the importance that the Tribunal and Courts place on maintaining the integrity of the disciplinary process in assessing penalties for misconduct. Lawyers should be aware of the very real consequences if they wilfully fail to comply with requests of Standards Committees. Even with mitigating factors, a suspension from practice is a possible outcome.
For further information on this case, issues related to the lawyer’s complaints regime or professional regulation generally, please contact Managing Director Brigitte Morten.
The government is constantly examining policies, conducting investigations, and holding inquiries of various kinds. Some are small, happening within departments and rarely becoming public knowledge. Others deal with significant public policy issues or questions of ethical behaviour by officials.
What is a Commission of Inquiry?
At the apex of the varying types of Inquiries, sit Commissions of Inquiry. These are independent investigative bodies appointed by the government to look into issues of public importance. Statutory Commissions of Inquiry were introduced in 1867 to enable thorough, credible investigations to be undertaken.
Today, Commissions of Inquiry are regulated by the Inquiries Act 2013 (“Act”).
The Act applies to three types of Inquiries:
1. Royal Commissions;
2. Public Inquiries; and
3. Government Inquiries.
All three types of Inquiries can be used to investigate and report on “any matter of public importance”.
Royal Commissions and Public Inquiries hold the same wide-ranging powers and are both appointed by the Governor-General. According to the Cabinet Manual, Royal Commissions are typically reserved for the most serious and complex issues. Government Inquiries, established by Ministers, typically focus on narrower, more specific issues requiring a timely, independent response. They have more limited powers.
Powers and Scope
Inquiries must have Terms of Reference. The Act does not mandate what must be included in these but suggest it may set out any matters relevant to the scope and purpose of the Inquiry, procedural matters, and a reporting date or process for determining a reporting date. Terms of Reference often contain specific questions the Inquiry is tasked with answering.
Members of an Inquiry and an Inquiry itself, must act independently, impartially, and fairly. Inquiries are focused on fact-finding, and do not determine fault. However, their findings can inform other proceedings, and they can make recommendations to assess liability if required.
Inquiries can regulate their own procedure, and have powers to compel the production of documents and evidence, summon witnesses, and take evidence on oath (or affirmation). Protections applying to witnesses in Court proceedings, extend to Inquiries under the Act. Inquiries do not have powers of search and seizure.
Reporting
Every Inquiry under the Act requires the preparation and presentation of a final report. The final report must set out the findings and any recommendations. For Public Inquiries and Royal Commissions of Inquiry, the final report is to be presented by the appropriate Minister to Parliament.
There is no statutory requirement for Parliament to debate the report, but it is a matter of public record and typically the Government will make public statements outlining an initial position or intentions.
Advantages and Disadvantages
Statutory Inquiries build public trust in findings and recommendations with powers to compel evidence, rules around impartiality and independence, as well as the requirement that findings are published.
However, statutory Inquiries can be expensive and take time (sometimes years) to complete. There are some limits on their powers, findings are not binding, and they are often used as apolitical tool due to the fact they are initiated by the government.
Effectiveness of an inquiry largely rests on the design of the Terms of Reference (which define the scope and focus of the inquiry), resourcing (ensuring the inquiry has sufficient staff, expertise, and time to conduct a thorough investigation), and genuine government engagement with findings (demonstrating a commitment to considering and acting on the inquiry's recommendations).
Examples
Recent examples of Royal Commissions of Inquiry include the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions (established 2018),which is the largest inquiry ever undertaken in New Zealand, and the Royal Commission of Inquiry into COVID-19 Lessons Learned, launched in 2022 and continuing into 2026.
In 2018 there was a Public Inquiry into the Earthquake Commission following the Canterbury earthquakes, and the Government Inquiry into Mental Health and Addiction which had 38 of its40 recommendations accepted in principle or for further consideration.
Other Inquiries
It is worth noting that there are many types of Inquiries that are not regulated by the Inquiries Act2013, including:
1. Ministerial Inquiries – these are established by a Minister (with the Prime Minister’s agreement), to investigate matters within the Minister’s portfolio. Participation in these Inquiries are voluntary. As an example, there was a non-statutory Inquiry completed in 2007 on local government rates; known as the “Shand Report”.
2. Parliamentary Select Committee Inquiries – These can include full-scale investigations with written Terms of Reference, witness examination, and formal reporting, which are a core form of parliamentary oversight but are separate from statutory Inquiries. The rules for this type of Inquiry are in the Standing Orders. In 2024, the Finance and Expenditure Committee conducted an Inquiry into climate adaptation to enable Parliament to recommend a framework on how New Zealand will adapt to the effects of climate change.
3. Statutory Bodies with Inquiry powers – These are entities established by legislation with powers to conduct inquiries. Examples include; the Auditor-General, Law Commission, Independent Police Conduct Authority, Privacy Commissioner, Ombudsmen, Public Service Commissioner, and Coroner. The Waitangi Tribunal has unique status as a permanent standing commission of inquiry, established by the Treaty of Waitangi Act 1975.
To understand more about Inquiries, please contact Director Brigitte Morten.
