Max Barber

Solicitor
Max Barber

Max Barber is a Solicitor with Franks Ogilvie. He joined the firm in early 2023 and was admitted as a barrister and solicitor in March 2023.

Max joined the firm from BNZ where he spent seven years working across client relations and personal banking. He gained his Bachelor of Laws from Victoria University of Wellington.

Max
in the news
November 22, 2023

It is common in New Zealand’s MMP system for a multiple political parties to need to enter into an arrangement to secure government. In order to form government, a political party must be able to demonstrate to the Governor-General that they have the confidence of House. Therefore, a party must be able to show they can get a majority of votes in a confidence motion, and to get a budget through parliament.

To do this, the secure governing agreements with minor parties. These are often referred to as ‘coalition agreements’, but not all agreements between parties are actually coalition agreements.  

Types of governing agreements

Governing agreements allow governments made up of a variety of political parties to act collectively. The Cabinet Manual specifically states that the decision to form government is political. There are no rules on the form they take, but the most common types of governing agreement to date have been coalition agreements and confidence and supply agreements.

Coalition agreements involve two or more parties forming a single government called a coalition government. The agreements will set out an overall government policy and ministerial appointments, both of which are agreed through negotiation between the parties. All parties to the agreement will typically have Ministers inside Cabinet, as well as possibly outside Cabinet.

In a coalition government, Ministers inside Cabinet will be bound by collective responsibility in respect of all government policy, which restricts their ability to speak out in accordance with party policy or the preferences of their voting base. This can be a significant electoral drawback for minor parties, however this can be offset by ‘agree to disagree’ clauses(see below).  

Notable coalition governments in New Zealand include the2017 Labour-New Zealand First coalition government (which also relied on a confidence and supply agreement with the Green Party) and the volatile 1996 National-New Zealand First coalition government, the first government under MMP.

Confidence and supply agreements are a looser arrangement. Under this kind of arrangement, a minor party will agree to vote in the House with the governing party on matters deemed to be matters of confidence in the Parliamentary Standing Orders and on matters of supply such as the annual budgets and other appropriations necessary to fund the government. If a governing party fails to maintain confidence and supply, it is vulnerable to being ousted from government by a vote of no confidence in the House.

Minor parties usually provide this assurance in exchange for policy concessions from the governing party and/or ministerial appointments. The latter may be positions inside or outside of Cabinet, but are usually outside of Cabinet. Ministers outside of Cabinet are only bound by collective responsibility in respect of their ministerial portfolios.

Confidence and supply agreements are a trade-off for minor parties. Being freed from collective responsibility on most matters means they have greater means of maintaining their party identity and the support of their voting base. However, this greater freedom can come with a diminished ongoing influence on wider policy due to lack of representation in Cabinet.

The majority of governments since the advent of MMP have been minority governments reliant on confidence and supply from minor parties. The Fifth National Government (2008 – 2017) did not form any coalitions  relying on confidence and supply agreements with minor parties throughout.

Minor parties have obtained several notable policy victories over the years through confidence and supply agreements. Examples include the repeal of the Foreshore and Seabed Act under the National/Maori Party agreement of 2011, and the Climate Change (Zero Carbon) Amendment Act under the 2017Labour-New Zealand First/Greens agreement.

‘Agree to disagree’ arrangements

Under both coalition agreements, and confidence and supply agreements, the Cabinet Manual allows parties to ‘agree to disagree’. These agreements allow for Ministers to depart from collective responsibility and speak as party members on certain issues agreed between the parties. The issues can be agreed upfront, or the parties can agree to determine relevant ‘agree to disagree’ issues on a case by case basis. The 2017 Labour-New Zealand First/Greens confidence and supply agreement contained an example of the latter.

What are the consequences for departing from a governing agreement?

Governing agreements and collective responsibility are not legally enforceable. The extent to which they are enforced is an inherently political decision.  

However, this does not mean that they can be breached with impunity. The agreements ensure that parties with often divergent policies can function together as a single unit. The decision of whether to break a governing agreement, by any party, is usually determined by the significance of the breach of the agreement and the public appetite for this breach. If this occurs, there is a risk of the government suffering a vote of no confidence in the House, with the usual result being another election.  

Astute politicians will be aware that the electorate does not like instability, and may judge parties involved in a collapsed government harshly. Accordingly, there is a significant incentive to ensure governing agreements remain substantially complied with.

The collapse of the National/New Zealand First coalition in1998 provides an illustrative example. The coalition had formed following the first MMP election in 1996, and relations between the two governing parties were fraught from the start. These issues culminated with National’s proposed sale of government shares in Wellington Airport, prompting New Zealand First leader Winston Peters and several New Zealand First members exiting Cabinet in protest.

This defiance of the coalition agreement and collective responsibility led to the collapse of the coalition government. Following this, National managed to govern for another year, with the support of minor parties helping to avert a no confidence vote. However, at the 1999 election, National was ousted from government by a Labour/Alliance coalition government, and New Zealand First lost almost half its seats, illustrating the potential pitfalls of departing from governing arrangements and collective responsibility.

To understand more about this issue, please contact Director Brigitte Morten

October 26, 2023
Summary

A political party sought an order requiring the Electoral Commission to accept candidate nominations after the statutory deadline had expired.

Background

The applicants, NZ Loyal, were a registered political party running in the 2023 general election. The respondent, the Electoral Commission, is an independent statutory body charged with conducting elections in accordance with the Electoral Act 1993 (“Act”).

The Act governs, among other things, the nomination pathways for electoral candidates. There are two nomination pathways.

The first is a personal nomination process, where any qualified person can be nominated by two or more members of their electoral district (“First Pathway”). The second process requires the secretary of a registered political party to submit candidates in bulk (“Second Pathway”).  

Crucially in this case, statutory deadline is earlier for nominations under the Second Pathway. Nominations under the First Pathway must be submitted by noon on the nomination date, while Second Pathway deadline is at noon on the day before the nomination date. The Commission is required to reject any nominations received after the relevant deadline under s 128(1)(b) of the Act.

The nomination date is set in the writ calling the election. The writ for the 2023 general election was issued by the Governor-General who set the nomination date as 15 September.

Ms Smith, the party secretary for the applicant, submitted nominations for three candidates to the Commission under the Second Pathway before noon on 14 September. She then notified the Commission that she would submit a number of other nominations under the First Pathway prior to noon on 15 September, which she perceived to be the applicable deadline.

However, s 146C(2) of the Act prohibits the Commission from accepting nominations under the First Pathway if they have received notice from a party secretary that they intend to use the Second Pathway. The Commission informed Ms Smith of this, and that they would not accept any nominations after the noon 14 September deadline applicable to the Second Pathway.  

The Commission informed Ms Smith that the nominations would not be accepted, as she had given notice that she would be following the Second Pathway, meaning the First Pathway was no longer open to her. The Commission informed her of the noon 14 September deadline applicable to the Second Pathway.

The applicant filed judicial review proceedings in the High Court arguing that the Commission’s “decision” not to accept the additional candidates was unlawful. To preserve the status quo before trial, the applicant sought an interim order requiring the Commission to accept and publish the candidate list to reflect the nominations after noon on 14 September.  

The interim order hearing

The case proceeded on the basis that all the facts alleged by the applicant were proved, so that a preliminary legal question could be resolved, namely whether the High Court could grant the order sought by the applicant.

The court rejected the applicant’s claim for interim relief.

Parliamentary sovereignty

The primary reason for doing so was that the order sought would cut against the nomination deadlines, the nomination deadline being set directly in the Act rather than by the Commission.

The court affirmed that Parliamentary sovereignty is the fundamental constitutional principle in New Zealand law. It was confirmed that the courts have no jurisdiction to modify or ignore an Act of Parliament.

The court noted that its judicial review jurisdiction was an extension of Parliamentary sovereignty, embodying the court’s constitutional role to police exercises of discretionary power delegated by Parliament to the executive government and other public bodies. However, judicial review was not available here because the Commission was not exercising a discretionary power. Instead, it was simply acting in accordance with the terms of its empowering legislation.

For the court to have ordered that the Commission act in contravention of these statutory deadlines would require the Commission to contravene its empowering legislation. The court had no jurisdiction to make such an order.

The court went on to reject several technical arguments to the effect that the statutory deadline for nominations under the Second Pathway was noon 15 September rather than noon on the previous day.

Electoral integrity

The Parliamentary sovereignty point decided the case.

However, the court went on to note following clear Parliamentary intent was especially important in the context of the Act. The court noted that the Act recognises that the integrity of the electoral system is fundamentally important to maintaining liberal democracy in New Zealand. For such a system to survive requires the electoral system to have legitimacy among the public.

One aspect of maintaining public confidence in the electoral system is to ensure that elections are conducted impartially. In this context, allowing the Commission a discretion as to who received lenience (and who did not) regarding the deadlines for nominations would have the opposite effect. Justified or not, questions could be raised about the Commission giving special treatment to certain parties over others.

In that context, it made sense for deadlines to be set in the Act, with the Commission having little discretion in how it carried out its role.


Result

The court rejected NZ Loyal’s claim for interim relief.

The case provides a timely reminder that the doctrine of Parliamentary sovereignty remains the fundamental constitutional principle in New Zealand law.

For further information on this case or similar issues, please contact Director Brigitte Morten

August 29, 2023

Summary

A husband and wife successful sued a local authority for a mistaken assurance that their pool complied with the Fencing of Swimming Pools Act 1987 (“FOSPA”).

Background

In 2008, Ms Buchanan and Mr Marshall (“Plaintiffs”) purchased a property in Nelson. A selling feature of the property was its centrally located open-plan swimming pool area. The Tasman District Council had certified in 2006 that the pool complied with the FOSPA. This was confirmed in subsequent pool inspections in 2009 and 2012.

However, in 2019 the Council went back on its earlier advice. The pool area had in fact never been compliant with FOSPA. Expensive remediation works were required, which included installation of a barrier that undermined the open-plan nature of the pool area, damaging the amenity value of the property.


Despite having a good claim, the Plaintiffs were barred from suing the Council in respect of its 2006 certification, as such a claim would be outside the statutory deadline imposed by the Limitation Act 2010. To get around this technicality, the Plaintiffs sued the council on the basis that the later inspections gave them false assurance that deprived them of the opportunity to sue the Council for negligence in the original inspection.


The Council admitted negligence but disputed the existence of a duty of care.

The case

Duty of care

The court applied the well-established three-factor framework for assessing a novel duty of care:


1. Whether it was reasonably foreseeable that the Plaintiffs would suffer loss;
2. Whether the Council was the best party to bear responsibility for the loss; and
3. If so, whether there was any policy reason why the Council should not bear the loss


The court found that the loss was reasonable foreseeable. Section 10 of the FOSPA clearly contemplated that Councils would advise pool-owners on compliance, and it was predictable that pool-owners could suffer remediation and amenity loss if advice was negligent.  


Additionally, the Council was the best party to bear responsibility for the loss. Councils regularly provided homeowners with assurances that their pools were FOSPA-compliant, and it was ordinary practice for them to be relied on. In this sense, the role of councils in FOSPA inspections was held to be significantly similar to their role in issuing building consents and codes of compliance, where a well-established duty of care applies.


Finally, there were no public policy arguments against recognising a duty of care. Recognising a duty would not promote a flood of legal claims – any liability that existed would be to a small and well-defined class (pool-owners). Legal risk would not disincentivise councils conducting pool inspections either as FOSPA inspections are now mandatory under Part 2 of the Building Act 2004.


Accordingly, the court held that the Council owed the Plaintiffs a duty to conduct the 2009 and 2012 inspections with reasonable care.


A duty was also found based on the separate doctrine of negligent misstatement, largely for the same reasons that a general duty of care was recognised. However, the Plaintiffs’ claim for breach of statutory duty failed, as the court held that Parliament did not intend for FOSPA to ground a private legal claim.

Limitation statutes

Limitation statutes are statutes that bar civil claims unless they are filed by a statutory deadline. Two relevant limitation statutes applied in this case – the 10-year deadline under s 393 of the Building Act 2004 applied, and the 3 year ‘late knowledge’ deadline under s 11(3)(a) of the Limitation Act 2010.


The 10-year Building Act deadline applied to both inspections, as they ‘relate[d] to building work’ per the requirement of s 393. This barred the claim based on the 2009 inspection, as the claim was filed 11 years after the inspection. However, the claim based on the 2012 was within the deadline.


The 2012 claim was also held to be within the Limitation Act deadline. The ‘late knowledge’ date under s 14 was held to be the date of the 2019 inspection. Prior to this date, the Plaintiffs had no reason to suspect the 2012 inspection had been conducted negligently. The claim was filed in 2020, well within the three year deadline applicable under s 11(3)(a).

Damages

The Plaintiffs claimed damages from the Council to compensate them for remediation costs, loss of amenity value to their property (as measured by reduction in market value), and for emotional distress. They were largely successful in recovering all of these losses, with some minor and technical exceptions.


This was outside the norm for a case framed around a lost opportunity to sue, where damages are usually discounted to account for the possibility of the barred claim (in this case, the claim base on the 2006 certification) being unsuccessful. Palmer J held that this case differed from the norm, in that the negligent conduct was an act rather than an omission, and that in any event it was virtually certain that the Plaintiffs would have recovered in respect of the 2006 certification had the Council not negligently assured them that their pool was FOSPA-compliant.  


The court also declined to discount the damages for contributory negligence. It was reasonable for the Plaintiff’s to have relied on the Council’s negligent advice without further enquiry.

Result

The Plaintiffs were successful in their claim against the Council for negligence and negligent misstatement relating to the 2012 inspection. They were awarded damages compensating them for remediation works, loss of amenity value of their property, and emotional distress.  

Note: Swimming pool inspections are now governed by a similar regime under Part 2 of the Building Act. It is highly likely that the duty of care recognised in this case will apply under the new regime.

Update: On 20 August 2024, the Supreme Court granted the Plaintiffs leave to appeal. The sole question on appeal will be whether the Court of Appeal was correct to hold that there was no duty of care owed by the Council to the Plaintiffs when carrying out FOSPA inspections.

For further information on this case or similar issues please contact Director, Brigitte Morten

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