Max Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
The Court of Appeal declined to make a declaration excluding the Jehovah’s Witnesses faith from the Royal Commission into abuse in state and faith-based care.
Royal Commissions are investigatory bodies established by the Governor-General (on the advice of Cabinet) under the residual royal prerogative power. This power is supplemented by the Inquiries Act 2013, which enables royal commissions to (among other things) compel parties to produce documents and give testimony under oath.
In 2018, the government established a Royal Commission whose terms of reference (“ToR”) required it to investigate historical abuse in state care and (following an amendment late in the year) abuse “in the care of faith-based institutions”.
The Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (“CCJWA”)are a corporate entity representing the Jehovah’s Witnesses faith (“Faith”) in Australia and New Zealand.
The Commission required CCJWA to produce documents as part of its investigation. CCJWA provided the documents but disputed that the Jehovah’s Witnesses were within the scope of the inquiry. They asserted that because the institution had no formal arrangements for care of children, it was impossible for “care” to have been provided in the relevant sense.
The Commission disagreed in a formal minute, they identified certain practices of the Faith that could support a finding that the Faith had assumed responsibility for the care of children.
In March 2023, CCJWA filed judicial review proceedings against the Commission, arguing that the Commission had exceeded the scope of the ToR in investigating the Faith.
In response to the proceedings, the Governor-General (on the advice of Cabinet) amended the ToR (“Amendment Order”). The effect of the amendment was to validate the Commission’s interpretation of the ToR.
Shortly afterward, CCJWA then amended claim, arguing that the Amendment Order had been made unlawfully.
CCJWA was unsuccessful in the High Court and appealed to the Court of Appeal. They sought a declaration that the Faith did not provide “care” in the relevant sense and were therefore excluded from the inquiry.
The Court of Appeal was tasked with determining two issues. First, whether the Commission had erred by investigating the Faith prior to the Amendment Order, and second whether the Amendment Order was unlawful.
The first issue turned on the meaning of “in the care of a faith-based institution” as it existed in the ToR prior to the Amendment Order.
CCJWA argued that the High Court was wrong to uphold the Commission’s interpretation of its ToR, asserting that the court had wrongly granted deference to the Commission to determine the scope of its own jurisdiction.
The Court of Appeal accepted that the High Court should not have deferred to the Commission’s assessment of its own powers. The court emphasised that like all other public bodies, the Royal Commission’s powers were delineated by the ToR, which was secondary legislation. The meaning of the ToR, like any other task of statutory interpretation, was always a question of law for the courts to determine. Allowing public bodies to determine their own jurisdiction was inconsistent with the rule of law.
However, notwithstanding this criticism, the court held that the High Court had reached the correct outcome. The meaning of “care” in the ToR, the court held, did not allow the Commission (or the courts) to draw a bright line between faith-based institutions providing care and those that did not. Whether care was provided in a particular instance was to be determined case by case.
The Commission had material (as set out in one of its minutes) that could have supported the conclusion that the Faith had provided care. The Commission was entitled to pursue this evidence, even if it had turned out after the fact that the matter enquired on was out of scope. Accordingly, the court found that the Commission had not misinterpreted its ToR by investigating the Faith.
CCJWA also argued that the Amendment Order was unlawful as it breached section 27 of the New Zealand Bill of Rights Act and was made for an improper purpose.
The court held that there was no breach of section 27, which protects the rights to bring judicial review proceedings and other proceedings against the Crown. The Amendment Order had not stopped CCJWA from bringing the proceedings – it had only impacted the relief available by correcting a potential legal error. To recognise a breach in this case would have been to recognise that judicial review applicants were entitled to have the law frozen in place from the time they filed their claim until it was heard.
The improper purpose argument also failed. The court held that the purpose of the Amendment Order was to mitigate uncertainty and delays for the Commission in producing its report, and not (as CCJWA argued) to favour the Crown in ongoing litigation. This was held to be a proper use of the power to amend the ToR.
CCJWA’s appeal was dismissed. Subject to a potential further appeal for the Supreme Court, the Royal Commission will be free to release its report on its inquiry into abuse in state care.
The judgment also provides a powerful re-emphasis of the fundamental principle that all public bodies are required to act within the scope of their powers as delegated from Parliament and the royal prerogative.
Following the appeal judgment, CCJWA applied to the Supreme Court for leave to appeal. They also sought interim orders prohibiting publication of parts of the Commission’s report dealing with the Faith until the appeal was heard. The Court of Appeal declined the application for interim relief because CCJWA’s case on appeal was weak, the report was of significant public interest, the orders sought infringed the rights of third parties, and would interfere with Parliamentary privilege (as the report was due to be tabled in Parliament on the same day as the judgment). In September 2024 the Supreme Court issues a judgment dismissing the application for leave to appeal.
The Royal Commission published its report on abuse in state and faith-based care on 24 July 2024. The Commission found that the Faith had taken inadequate steps to prevent and respond to abuse in care in the inquiry period, and was critical of its insistence that no children or young people were ever in its care.
For further information on this case or similar issues, please contact Brigitte Morten, Director.
A non-profit organisation successfully applied for a declaration that a non-statutory process that allowed pokie machine operators to relocate was unlawful under the Gambling Act 2003.
The Gambling Act 2003 (“Act”) was enacted as a response to the social harm caused by electronic gambling machines known commonly as ‘pokies’. The Act established stringent requirements relating to these ‘Class 4 gambling machines’. Among other things, businesses offering pokies are required to have both an operator licence and a venue licence.
Venue licences are automatically subject to a condition limiting the number of pokies within the venue. However, this requirement does not apply to venue licences issued before a date specified in the Act. These licences continued on the same terms as applied prior to the commencement of the Act (an arrangement known colloquially as ‘grandfathering’).
Originally, the Act did not expressly provide for relocation of venue licences. The apparent position was that for a venue to move even slightly (for example, to a neighbouring property) required a new venue licence application. When that occurred, the new licence would not have the benefit of the grandfathering provisions, inevitably meaning that fewer pokies were allowed at the relocated venue.
This position changed following ILT Foundation v Secretary for Internal Affairs [2013], a High Court decision concerning the venue licence for the Waikiwi Tavern (“Waikiwi Decision”). The owner sought to move their premises 200 metres to a neighbouring section,and a declaration that this could be lawfully achieved via a change to the conditions of their venue licence. The court granted the declaration, holding that minor relocations were not changes in “venue” under the Act and could therefore be completed via amendments to venue licence conditions.
Following the decision, many similar relocation applications were made to the Department of Internal Affairs (“DIA”), the responsible regulator. These became known as ‘Waikiwi Relocations’.
At around the same time, Parliament amended the Act. One of the amendments allowed local councils to have the final say over venue relocations under new venue relocation policies. The amendments were made in apparent ignorance of the Waikiwi Decision.
DIA continued to process Waikiwi Relocations notwithstanding the amendments until 2018, where they revised their approach and held that the relocations were no longer permitted. This attempt to change course was successfully appealed to the Gambling Commission, which treated the Waikiwi Decision as settled law.
In 2023, Feed Families Not Pokies (“Applicant”) (a charitable organisation seeking to mitigate the social harm caused by pokies) sought to have the law clarified. They applied to the High Court for declarations that Waikiwi relocations had been unlawful since the 2013 amendments. The application was supported by DIA but opposed by the Gaming Machine Association.
The parties accepted that the Waikiwi Decision had been correct at the time when the Act was silent as to venue relocations. The contentious issue in this case was whether the 2013 amendments had changed that interpretation and ousted Waikiwi relocations by implication.
The Applicant argued that Parliament, in enacting the 2013 amendments, had intended that local authorities have exclusive oversight of venue relocations within their district. The Gaming Machine Association argued the basis of the Waikiwi Decision was that minor relocations involved no change of “venue”. Accordingly, they concerned different subject-matter than was covered by local authority relocation policies, and the two processes could therefore co-exist.
The court found for the Applicant. The points made in the Waikiwi Decision about whether changes in location amounted to changes of venue were specific to the legislative context, which did not provide for venue relocations. The same reasoning did not automatically apply when that context changed.
The court held that three factors supported the contention that the 2013 amendments had rendered Waikiwi relocations unlawful:
The court made a declaration that Waikiwi relocations had ceased to be lawful following the 2013 amendments. However, to avoid unfairness to parties who had successfully relied on the law as it had been understood before the case, the court held that the declaration would not retrospectively invalidate any existing venue licence.
Whether an individual licence had been modified unlawfully was a question that could be determined in separate judicial review proceedings. A court in such a case would have regard to the good faith reliance of prior applicants in determining whether it was appropriate to grant relief.
The result means that Class 4 venues seeking to relocate, even to a minimal extent, will now require territorial authority consent to do so, in accordance with the prevailing venue relocation policy in their district. If there is no policy in force, it is likely that a business seeking to relocate will need to apply for a new venue licence (and will not retain the benefits of any grandfathered licence).
Businesses that have relied on Waikiwi relocations in the past are not likely to sleep easily. While the court held that the declaration did not invalidate prior relocations, the licence amendments that allowed those relocations could be independently challenged.The court here hinted that the prejudice to those businesses (who had reasonably relied on what was at the time assumed to be good law) might point against invalidating those decisions. However, this decision ultimately remains at the discretion of a future reviewing court.
For further information on this case or similar issues, please contact Brigitte Morten, Director
Summary
An iwi leader successfully appealed a decision striking out his climate-change based tort claims against several major greenhouse gas emitters.
Background
The appellant in the case was Michael Smith, an elder of Ngāpuhi and Ngāti Kahu, and a climate change spokesperson for the Iwi Chairs Forum, a national forum of tribal leaders.
In 2019, Mr Smith filed proceedings in the High Court against several companies that he alleged were major greenhouse gas (“GHG”) emitters, or suppliers of raw materials that, when burned, resulted in significant GHG emissions (“Respondents”).
Mr Smith alleged that the ongoing GHG emissions contributed to climate change, in breach of duties the Respondents owed under tort law, including public nuisance, negligence, and a common law duty to cease materially contributing to the climate change crisis. Mr Smith sought a declaration that the duties had been breached as well as an injunction requiring the Respondents to gradually phase out their net GHG emissions (or in the alternative, stop them immediately).
The Respondents applied to strike out the proceedings on the basis that they disclosed no reasonably arguable cause of action. The High Court struck out the nuisance and negligence claims but refused to strike out the climate duty. On appeal, the Court of Appeal struck out all three claims.
Mr Smith appealed to the Supreme Court.
The case
Strike out principles
The court affirmed existing principles of determining strikeout applications, namely:
· All pleaded facts were assumed to be proven unless wholly without foundation.
· A claim would only be struck out if it clearly could not succeed on the basis of those facts.
· A court would be cautious to strike out a claim in a novel or developing area of law.
The court placed significant emphasis on the third point on the basis that development of the law was best done with the discipline introduced by evidence and detailed argument.
The court emphasised that declining to strike out a claim did not suggest that the claim was likely to succeed at trial.
Climate change legislation
The court noted that the preliminary issue was whether the claims were excluded by the operation of legislation. In the case of climate change, the relevant legislation was the Climate Change Response Act 2002 (“CCRA”) and the Resource Management Act1991 (“RMA”).
The emissions trading scheme (“ETS”) under the CCRA is the primary mechanism in the government response to climate change. Under that scheme, businesses in certain industries are required to register as participants and surrender ‘emissions units’ to the Crown proportionate to their annual GHG emissions. The Crown only issues a certain number of units per year, which can be purchased directly at carbon auctions as well as on private markets. Businesses that fail to accurately report annual emissions or surrender sufficient units to cover their emissions liability may be liable for pecuniary penalties.
The Respondents argued that Parliament’s intent in enacting the ETS was that it act as the sole means of accountability for otherwise lawful GHG emissions. The court rejected this argument.
They noted that the CCRA said nothing about concurrent tort liability, contrasting with other legislation such as the Accident Compensation Act 2001 (which expressly ousted personal injury claims where cover was available under the Act). Additionally, the CCRA said nothing about the legality of GHG emissions themselves. While the ETS was designed to indirectly incentivise emissions reductions, direct legal accountability for emissions themselves (if any) existed only under the RMA. The latter Act specifically provided that tort claims remained available.
Accordingly, the court held that the Parliamentary intent behind the CCRA and the RMA (described as ‘companion legislation) did not oust liability for emissions under tort law.
The public nuisance claim
Mr Smith argued that various harms arose from climate change caused by GHG emissions (temperature and sea level rises, ocean acidification, geopolitical instability, and others). The Respondents’ contribution to these harms amounted to a substantial and unreasonable interference with the rights of the public,and accordingly the Respondents’ emissions amounted to a public nuisance.
The court accepted that the harm pleaded by Mr Smith was capable of amounting to a substantial and unreasonable interference, and that the issue of whether a nuisance was established should be assessed at trial. The court rejected the argument that GHG emissions had to be independently unlawful before they could amount to a nuisance. Additionally, they cast doubt on whether Mr Smith (as a private plaintiff) had to have suffered ‘special damage’ before he had standing to sue in public nuisance, although it left a final decision on this point for trial. In any event, they held that it was arguable that Mr Smith had suffered special damage by virtue of his dual legal and tikanga-based interests in the land.
The most important aspect of the court’s decision on the nuisance claim was on the issue of causation. The significant difficulties of attributing harm arising from climate change to the Respondents was ‘fatal’ to the claim in the Court of Appeal.
The Supreme Court departed from the Court of Appeal on this point. While they acknowledged that the emissions of the respondents were miniscule in global terms (meaning that the claimed relief would not stop the harm from occurring), this was not an insurmountable barrier to success.
The court noted that earlier public nuisance cases involving the discharge of sewage into public waterways had resulted in liability for individual materially contributing to the pollution even where they had not independently caused it. It would be possible for a trial court to find that the climate change crisis differed only in magnitude, and not in principle, from this line of cases.
On this issue, the court also emphasised that the common law had not always developed slowly and incrementally – that in times of major social upheaval (such as the Industrial Revolution), legal development occurred quickly in relation to new social problems, citing the landmark Donoghue v Stevenson negligence case as an example. They noted that these developments were not always successful, but that it was open for Parliament to intervene in such cases by enacting corrective legislation.
Accordingly, the court was not prepared to halt development of the law in this area at a preliminary stage notwithstanding the significant difficulties involved in attributing blame. Until the matter was heard at trial, it was not possible to say that it was beyond the capability of tort law to respond to the complex issues raised by climate change.
The other claims
The negligence and climate duty claims were reinstated on the basis that they were based on overlapping facts to the nuisance claim and that inclusion of the claims would not materially add to cost and delay of proceedings.
Relevance of tikanga
The Supreme Court, contrary to the Court of Appeal, held that tikanga evidence was relevant to determining the development of the torts proposed in the claim. As Mr Smith was suing in the capacity of a kaitiaki of the whenua of his iwi, tikanga evidence was likely to be relevant to establishing the nature of the harm and meeting the special damage requirement (if one existed).
Result
Mr Smith’s appeal was allowed and all three causes of action were reinstated. The case now falls to be determined by the High Court with full evidence and argument, including evidence of tikanga.
The decision is a landmark tort law and climate change case. Depending on the outcome at trial, businesses in certain industry sectors could be subject to enormous legal risk in respect of their carbon emissions.
Whatever happens at trial, the court’s decision is likely to set an international precedent, emboldening further climate change litigation in countries beyond New Zealand.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
