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A recent decision
of the Court of Appeal, Salt v Governor of Pitcairn and
Mr Salt was employed as Commissioner for
Pitcairn Island and was responsible for the day to day administration of the
affairs of By March 2003 Mr Fell, the Governor, was concerned
that Mr Salt was deliberately undermining the office and authority of the
Governor. In September 2003, following an unsuccessful mediation, Mr Fell
dismissed Mr Salt by email giving him one month’s notice. Mr Salt
raised a personal grievance claiming unjustified dismissal. The Employment Relations Authority found the
dismissal was unjustified on procedural grounds and awarded Mr Salt
reimbursement of wages and superannuation as well as compensation, but found
his conduct had contributed to his dismissal, and adjusted the damages
accordingly by 50%. This adjustment was based on a series of emails that were
not discovered until after Mr Salt was dismissed. The emails contained highly disparaging comments
about the Governor and other Government officials. |
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Inside this edition These
Boots are Made for Walking - The Walking Access Act 2008 Children’s
Participation Increased by Changes to Family Courts The
Early Bird Catches the Worm – Time Limits in Civil Claims Family
Trusts – Some Common Pitfall Building
Act Update – Kiwi DIY Tradition Improved Enduring
Powers of Attorney
Mr Salt challenged the reduction of
remedies in the The Court of Appeal decided that “subsequently
discovered misconduct of a significant nature could be taken into account in
determining remedies under Section 123 of the Act”. The Court therefore
could and should take the emails into account when determining wages, reimbursement
and compensation. Furthermore, Mr Salt’s behaviour was so bad that if
the employer had known of it then, the dismissal would have been justified.
As a matter of “equity and good conscience” the wages
reimbursement should be modest, and the 50% reduction was appropriate. |
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These Boots are Made for Walking - The Walking
Access Act 2008 |
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If you are a farm owner this Act won’t walk all
over you! On 25 September 2008 the Walking Access Bill was
passed in Parliament. The origins of the Bill hail back to 2004 when the
Government floated the idea of creating marginal public strips across
privately owned land to allow all New Zealanders access to important
recreational waterways. Property owners were concerned law may be passed to
compulsorily acquire privately owned land for public walkways and farmers
raised various concerns related to disruption of stock, damage to private
property near the walkways and public safety. One major concern was their own
potential liability for accidents on their property.
In answer to these concerns a Walking Access
Consultation Panel was established that received almost 1400 submissions in
response to its consultation document. The Panel made various recommendations
that have now been enshrined in the new Act. The Walking Access Act 2008 (“the Act”)
establishes a New Zealand Walking Access Commission (“the
Commission”) to enhance and extend walking access to our great
outdoors. The Commission will form national strategy and provide national
leadership to co-ordinate access among key stakeholders. The Commission will
also provide advice and information on walking access routes, determine the
nature of the access (i.e. walking, bicycles, access with motor vehicles,
dogs and use by hunters) negotiate new walking access across private land and
facilitate the handling of any disputes. The Commission will develop, promote and maintain a
code of responsible conduct for users of walkways that will include such
matters as ·
Standards of behaviour to be observed. ·
Information about Maori customs, values and
practices. ·
Maori relationships with the land and waterways. |
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·
A summary of benefits conferred and obligations
imposed by the Act, and ·
Any such other matters that the Commission
feels would be beneficial to users of walkways and relevant landowners. A
draft code is to be prepared as soon as practicable. The Act preserves private property rights and
provides that public access to private land should be achieved through
negotiation and agreement with landholders rather than compulsory
acquisition. It sets out the process that must be followed to declare a
walkway over public land and to negotiate a walkway over private land and
Maori freehold land. Section 54 of the Act sets out a number of strict
liability offences that may be incurred while using walkways. Strict
liability offences include: ·
Discharging a firearm ·
Setting a net, trap or snare ·
Placing poison or explosives ·
Lighting a fire ·
Taking plants ·
Using a vehicle ·
Taking a horse or dog on a walkway without authority Section 56 sets out offences that require knowledge, intent
or recklessness, such as interfering or disturbing livestock or wildlife,
damaging or destroying structures and attempting to intimidate persons using
a walkway. The Act provides for the appointment of enforcement
officers, for a term not exceeding 3 years, who have powers to prevent or
stop offenders. A fine not exceeding $5,000 may be imposed for offences under
section 54 of the Act and a fine not exceeding $10,000 for offences under
section 56 of the Act.
Within 11 years from the commencement of the Act the Minister must report on
a review into the Act and any recommendations for changes to the Act. You
can find out more about the commission at its website, www.walkingaccess.org.nz. |
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Children’s Participation Increased by Changes
to Family Courts |
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Counselling and Mediation Children now have the opportunity to participate in
counselling when decisions are being made about parenting matters, due to the
passing of the Family Matters Bill on 2 September 2008. Provided the parents agree, children will be able to
attend part of the counselling, or speak with the counsellor directly. Up
until now, children’s involvement in counselling was not specifically
provided for by legislation. In many cases, the benefits to both the children
involved and their parents will be significant, as from an early stage in the
process the child’s view on what is important can be expressed and
considered. As well as counselling, parties involved in parenting
matters (and other matters such as relationship issues) will be able to
request family mediation to help them identify issues and to resolve matters
by agreement. The mediation will not be overseen by a Family Court Judge but
by a specialist mediator. The purpose of the mediation is to divert less
complex family disputes away from formal court proceedings and to resolve
them quickly and inexpensively. Children can also be involved in the
mediation and will be able to attend the counselling, as mentioned above, to
help them formulate their views. Following the mediation, the mediator will be
required to provide a report to the Court detailing the resolution reached
between the parties, the issues still to be resolved and non-binding
recommendations as to the next steps to be taken by the parties. If parties (now including grandparents and other
family members) are considering entering into a parenting agreement, they can
request mediation or counselling. These can also both be accessed to help
resolve a dispute arising from an existing agreement. |
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Other changes resulting from the passing of the
Family Matters Bill include ·
Extending the duties of the Family Court Registrars. ·
New positions of Senior Family Court Registrars, with
the intention that they will be able to relieve the pressure on Judges and
reduce delays by dealing with, for example, routine procedural matters. ·
New provisions for openness in Family Court
proceedings have also been included with support persons and accredited media
allowed to attend proceedings. Reports on the proceedings can be published by
the media, but it is an offence to publish a report without leave of the
Court where the report includes identifying information and a child or
vulnerable person is involved. Support people will also be able to attend
proceedings provided the judge agrees, and ·
The restriction preventing Family Court Judges
wearing gowns in court has been removed. Implementation The above changes are intended to increase the
openness of Family Court proceedings and to improve the efficiency and
effectiveness of the Family Court. The Bill was divided into 12 amendment
Acts and will be implemented in stages. It is intended that most provisions
will be in place by early 2009, although new services like the counselling
for children, and family mediation, will take longer and the exact
commencement dates are yet to be announced. |
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The Early
Bird Catches the Worm – Time Limits in Civil Claims |
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Imagine that 2008 was just not your year. It began
with the discovery that your home, bought four years ago, is a leaky home and
needs major repairs that will cost over $200,000.
A short time later your widowed mother died, leaving her
entire estate, worth several million dollars, to your siblings because of a
recent falling out with you – and that after years of living with you
and your family. Then, two months ago, you lost your job because you stood up
to your manager, who is a workplace bully. The final straw came when your plasma TV died last
night during a test match, after having intermittent problems since you
bought it 18 months ago. You decide it is time to right some wrongs and go to
see your lawyer. One of the issues that will be raised with you is limitation
periods, which are time limits within which certain claims must be brought. Some of the limitation periods that might apply in
the present scenario include the following. You believe that the real estate
agent who sold you the house misled you and you would like to bring a claim
under the Fair Trading Act 1986. However, your claim under that Act might be
barred because applications under the Fair Trading Act must ordinarily be
made within three years of the date of the event. |
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You then consider bringing a claim through the
Weathertight Homes Resolution Service against the architect, the developer,
the builder, the roofing company and the council that issued the code
compliance certificate. Unfortunately, the house is 11 years old and section
393 of the Building Act 2004 prevents claims being brought 10 years or more
after the date the work was carried out. You may have better luck bringing a claim against
your mother’s estate pursuant to the Family Protection Act 1955 (or on
the basis of a testamentary promise, if you had been led to believe that you
would inherit some of the estate). The general rule for bringing such claims
is that they must be filed within 12 months of the date that administration
or probate is granted. However, in certain circumstances you need to be even
quicker, because the estate may be distributed after six months. What about your case for unfair job dismissal? If you
wish to bring a personal grievance pursuant to the Employment Relations Act
2000 against your employer, it must be submitted to the employer within 90
days from the date you were dismissed. Surely the Consumer Guarantees Act 1993 won't let you
down. However the Act provides that you must reject goods "within a
reasonable time" and what is reasonable will depend upon the type of
goods and how they were used. You might not be entitled to compensation if it
turns out that the minor problems you have been having for 18 months should
have been fixed and would have prevented the TV from stopping altogether. These are only a handful of examples of the
limitation periods that apply to a vast array of legal situations. While some
of the limitation periods can be extended by a court, the examples highlight
that it may be crucial to seek legal advice as soon as possible. Most claims
must be brought within a certain time, or the opportunity to obtain a remedy
will be lost. |
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Introduction In the course of trusteeship, trustees make decisions
that will impact on the assets of the trust. If made incorrectly,
trustees’ decisions can lead to personal liability if the trust suffers
a loss. Potential problems could arise, especially in the
current economic climate, due to such issues as: ·
A drop in asset values ·
Excessive trust borrowings ·
Loss of income from trust assets, or from a
beneficiary’s company ·
Trust assets used as security for company/personal
borrowings of a beneficiary/person who established the trust Trustees are obliged by law to have the best
interests of the beneficiaries at the core of decision making, not the best
interests of the settlors (the people who established the trust). Trust secures family company
borrowings It is common for trustees to agree to provide
mortgages over trust property and provide corresponding unlimited liability
guarantees in favour of another entity/borrower, such as the family company,
which might run the family business or operate the family farm. The problem arises when the company is then unable to
meet its loan repayment commitments and the bank is required to sell trust
property to pay for non-trust borrowing. The decision to provide guarantees
and mortgages to the bank for company borrowing can be the trust’s
undoing. |
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Before they provide guarantees and mortgages the
trustees must consider whether this is actually in the beneficiaries’
best interests. For example, was the trustees’ decision prudent in light
of the financial situation of the company, and was the guarantee and loan
structure reviewed on an ongoing basis? Also, before guarantees and mortgages are given, the
trustees are required to check the trust deed to ensure there is power in the
deed to provide such guarantees and mortgages. Resettlement of trust assets Trust deeds should contain a provision to allow the
trust to resettle its assets on another trust provided the resettlement is
for the benefit or advancement of one of the beneficiaries of the trust. If
the trust deed has a power to resettle, and the trustees are asked to
resettle, they are required to conclude that it would be in the best
interests of the beneficiaries to do so and that it is a proper exercise of
the power of advancement to resettle trust assets on one, or a group of,
beneficiaries. This is a decision not to be made lightly as the
remaining beneficiaries may be interested in the details of the resettlement,
not to mention the Inland Revenue Department. The trustees are less likely to
be personally liable if they turn their mind to the best |
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Building Act Update - Kiwi DIY
Tradition Improved Hon. Shane Jones, the Building and Construction
Minister, has taken steps to cut back on DIY building regulations enacted as
a result of the leaky building crisis. The Government has realised that the response to the
crisis was too extreme and has reduced the scope of work that requires
building consent. Schedule 1 (Exempt Building Work) of the Building Act 2004
was amended by Order in Council on 16 October 2008. The work that does not
require consent now includes such things as: ·
Changing existing household plumbing ·
Removing or changing non-load bearing walls ·
Installing or replacing windows or exterior doors ·
Making a home more accessible by widening doorways
and building access ramps ·
Construction of retaining walls that retain not more
than 1.5 metres depth of ground ·
The construction, alteration or removal of a pergola These
changes will allow Kiwis to once again take up their tools and go about what
they have always done in that long standing tradition of DIY. |
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Enduring Powers of Attorney On 26 September 2008, the Act governing powers of
attorney was amended. In brief, the Act has made powers of attorney documents
more secure meaning they are less able to be abused by attorneys to whom
power to act on a donor’s behalf is given. Among other things, the signature of the donor must
be witnessed by a lawyer, qualifying legal executive, or an officer of a
trustee corporation. The witness to the donor’s signature must certify
that he/she is independent of the Attorney. Therefore, in the common situation where a husband
and wife wish to appoint each other as attorneys, advice from two qualifying
witnesses such as a lawyer/qualifying legal executive/officer of a trustee
corporation is a necessity. Both parties should see their witness
independently of the other. The independent advice requirement will be the major
effect of this amendment and is one of the measures that aim to ensure powers
of attorney achieve what they set out to achieve. |
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If you have any questions about the newsletter items,
please contact me, I am here to help. Simon
Scannell S J
Scannell & Co - Phone:
(06) 876 6699 Fax: (06) 876 4114 Email: simon@scannelllaw.co.nz All
information in this newsletter is to the best of the authors' knowledge true
and accurate. No
liability is assumed by the authors, or publishers, for any losses suffered
by any person relying directly or indirectly upon this newsletter. It
is recommended that clients should consult S J Scannell & Co before
acting upon this information. S J Scannell & Co Would like to wish
you and your family a Merry Christmas and prosperous New Year
We advise our offices will be closing on
Tuesday, 23rd December 2008 and re-opening on Thursday, 15th January 2009 at
8.30 am |
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