4 cases that shook New Zealand 2017

The courts never sleep. Well, almost never. From the tribunals through to the Supreme Court, the judicial system is a hive of activity. And, as the large portion of their decisions are matters of public record, they are a constant source of entertainment, heartache, amusement, learning… The list of responses their decisions evoke, some argue, rivals the size of their workloads. It is as long as they are large.

At law school I was at times bored to tears by some of the precedent (and therefore extremely important) cases we needed to study. But then there were the ones that just blew me away – either because they were hideous stories of depravity, or they tugged my heart strings, or they were so quaintly old-fashioned they were interesting relics of a bygone era, or because they were just entertaining and different. 2017 had some crackers – some sheer entertainment (thanks to the National Party), some heartstrings, some “it’s about time” moments and some big kahunas sticking up for the little kiwi.

Here is a selection of cases which made it big in 2017.

Eminem Esque – Eight Mile Style, LLC v New Zealand National Party [2017] NZHC 2603

Rappers enter into rap battles. They’re a standard extracurricular activity if you’re an MC. But in 2017 it was the one of the world’s most famous rapper’s music publication company which went to bat. Eight Mile Style LLC, aka Eminem’s music publisher, sued the New Zealand National Party for breach of copyright with respect to their 2014 campaign video.

Oh, we think it’s pretty legal!

The National Party developed a video with background music called ‘Eminem Esque’, reminiscent of Eminem’s 2002 song ‘Lose Yourself’. Conscious of the similarity they sought professional, commercial and media advice as to the legalities of using ‘Eminem Esque’ in their video and had been advised that it was fine to do so as they had obtained a licence. To quote the then National Party Campaign Manager, Steven Joyce, “Oh, we think it’s pretty legal”.

Eight Mile Style did not however agree and so the rap battle grande commenced. It’s not every year that our government gets taken to task by the music industry, so this was definitely a case to put 2017 in the books.

How did the battle end? Overall, not too badly for anybody. The National Party were ordered to pay $600,000 damages, (which represented the amount they would have had to pay in the beginning had they obtained the appropriate licence from Eight Mile Style). No additional damages were ordered as the High Court found the National Party did not act recklessly. The National Party were understandably disappointed to have lost the case however and are not pursuing legal action against Beatbox and Labrador, the companies involved in the production and licencing of Eminem Esque. Eight Mile Style’s legal counsel warned music producers everywhere to take note – “The ruling clarifies and confirms the rights of artists and songwriters. It sets a major precedent in New Zealand and will be influential in Australia, the UK and elsewhere”.

One small step SN v MN [2017] NZCA 289

“There are far too many silent sufferers.  Not because they don’t yearn to reach out, but because they’ve tried and found no one who cares.” 2017 was a big year for the laws governing the protection of those vulnerable to domestic abuse, in all its guises. The New Zealand Court of Appeal handed down a judgment overturning prior Family Court and High Court decisions related to a protection order for SN against her ex-husband (MN).

The earlier decisions had maintained no final protection order was warranted on the bases (a) MN’s behaviour did not constitute a pattern and (b) in the situation of a post-property settlement MN was no longer likely to breach trespass and occupations orders.

SN was a fulltime teacher.Whilst gainful and skilled employment would ordinarily work in one’s favour, in SN’s case it was a hindrance rather than an asset. The Family Court had determined that as SN held down a full time job working with children, and generally appeared to have it all together, then she must not have felt all that vulnerable, and therefore a protection order was unnecessary.

The Court of Appeal looked afresh at all previous judgments and determined MN’s abusive and threatening behaviour not only formed a clear pattern but established the potential for similar behaviour in the future against which SN was entitled to protection. SN’s ability to perform in one area of her life should not mean than she was not vulnerable, and in need of protection, in another.

Misguided assumptions were made, as they so often are when dealing with things we can’t physically see such as emotional and psychological abuse, but through SN’s perseverance and the Court of Appeal’s careful application of the Domestic Violence Act 1995, justice had a shining moment in the realm of protection law in 2017.

Frankly my dear, I don’t give a damHawkes Bay Regional Investment Company Ltd v Royal Forest and Bird Protection Society of New Zealand Inc [2017] NZSC 106

The Supreme Court has ruled – the Court of Appeal were correct to reverse the High Court ruling allowing the Director-General (D-G) of Conservation’s decision, to revoke the protected status of conservation park, as lawful. Follow all that? I didn’t the first time either.

Basically there is a 22 hectare tract of conservation protected land in Hawkes Bay which the Department of Conservation (via the D-G) agreed to revoking its protected status, so as to allow for the development (by Hawkes Bay Regional Investment Company Ltd) of the Ruataniwha Dam. Forest and Bird took the D-G’s decision to the High Court. The High Court said yes – the status swap/revocation was OK, as was the dam. The Court of Appeal said no – no swap/revocation, no dam. Not at that location anyway. Then it was on to the Supreme Court (SC), where a posse of five of New Zealand’s most astute legal minds weighed in on the side of conservation. They returned a 3-2 decision – no swap, no dam.

The interesting part of this case however is going to be how it continues post-2017. The government came out within days of the SC decision’s release and signaled it is prepared to change the law to overturn the ruling. A government changing the law because it got thwarted by the judiciary? Surely not! (Oh wait, Foreshore and Seabed…) It’ll be interesting to see what happens with this one, now the government has changed. This is definitely a watch-this-space, unfinished scenario.

A long and winding roadOsborne v Worksafe New Zealand [2017] NZSC 175

Everyone likes to end the year on a high note, including the Supreme Court. On 23 November 2017, almost 7 years to the day after an explosion ripped through the Pike River mine and killing 29 men inside, the Supreme Court ruled that a $3.4 million deal which allowed mine boss Peter Whittall to escape charges was an unlawful bargain.

“Chequebook justice”, as one litigant (Ms Rockhouse, who lost her son) put it, is not good enough.

Worksafe made the decision in 2013 to drop charges against Whittall in return for payment of the aforementioned sum to the two survivors and the families of those who died. This decision was upheld by the Court of Appeal. However the families of two of the miners killed in the explosion refused to accept it. “Chequebook justice”, as one litigant (Ms Rockhouse, who lost her son) put it, is not good enough. As put by another Ms Osborne, who lost her husband – “[It is] blood money. You should never be able to buy your way out of charges”. The Supreme Court effectively agreed with them – they ruled that the arrangement made between Worksafe and Whittall amounted to preventing the prosecution and was therefore unlawful.

This “moral victory” does not however mean that Whittall will be charged – that ship has sailed (or to put it in more legal terms, an order to require the prosecution to proceed is no longer an option due to the statute of limitations having been exceeded).

So, what does the SC decision mean, at this stage? It stands, according to Worksafe, as an important precedent and guideline for regulators and decision-makers in the future. It is hoped that it will bring some measure of relief to the families involved also. The commitment of these families has undoubtedly been one of the single most important driving factors behind the comprehensive changes in New Zealand health and safety law over the past decade.

2018 will be one to watch with regard to the Pike River mine. A new agency will take over its assets from mid-March and, with some government funding, work towards re-entry of the mine and the potential recovery of bodies. It will be interesting to see where we are by November 2020, when the ten-year anniversary bell rings.

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