Law: BRIEF CASE
The National Business Review 2009 - 20 March 2009

Repo men and QCs

The QC season has started with gusto, with more senior counsel involved in the banking repo cases that kicked off this week in the Wellington High Court than you’d find at one of the chief’s cocktail parties. The one-line fee notes that the banking tax cases are generating, immaculately printed on Croxley bond and followed by figures only banks can understand, is redolent of the good old days when banks were moderately venerable institutions, frequently with money. Now banks and whole countries are going broke. I read in an investment letter this week that the only difference between Iceland and Ireland is one letter and six months. BNZ is the first of the repo cases off the block with Brendan Brown for Inland Revenue, which is claiming up to $2 billion in tax and interest from the seven defendant banks. Alan Galbraith acts for the bank we used to call our own. The case is set down for 10 weeks, although indications are it is likely to conclude sooner than that and the result will be awaited with high interest by the banks, taxpayers, tax collectors and tax specialists.
Brief Case
The National Business Review - 30 November 2007

Talking of James Bond

Talking of spycatchers, the lawyer who handled the case for MI6 in New Zealand was the silver-haired, silver-tongued silk Brendan Brown QC.
While relaxing in Wellington’s Hamptons recently (aka Greytown), the silks were emerging from the cafés and leafy streets in all directions.
Brendan was chatting with fellow silk Ian Millard beside his new acquisition - an Aston Marton Vantage. Or is it a Vanquish? In any event, I perspired with envy and knew at once that this was an obvious choice for an MI6 lawyer to drive.

Case Load
The National Business Review - 24 November 2006
Another Brash faux pas?
Deborah Hill Cone John Bowie

Eyebrows have been raised in legal circles at (departing) National leader Don Brash’s choice of Wellington barrister Brendan Brown QC to represent him over the Nicky Hager leaked email case. Mr Brown QC has an excellent reputation in intellectual property cases and is known as “Mr Crown” in Maoridom for his work with the Waitangi Tribunal, but is certainly not the obvious “name” barrister to take on such a controversial and high profile proceeding. One source I spoke to thought Brown had done a bit of fancy legal footwork in convincing Justice Alan MacKenzie to grant the ex parte injunction, but in the big picture, the legal advice to pursue the suppression orders, a decision taken by Dr Brash personally, was a poor steer. Mr Brown certainly can’t be written off as a National Party insider (The party’s regular lawyer is Auckland’s Peter Kiely). Brown was described as “bookish” by legal website LawFuel which tipped him as a potential solicitor-general (although Labour favourite David Collins QC got the job). Brown was a former partner with National MP Chris Finlayson at Bell Gully, but on the other side of the ledger he represented former Human Rights Commissioner Joris de Bres in the case against him by National MP Murray McCully.

Case Load
The National Business Review - 01 December 2006
Don Brash and the Does
Hill Cone John Bowie

Wellington QC Brendan Brown received plaudits from legal observers on his obtaining the wide-ranging injunction and use of the John and Jane Doe device in relation to the Don Brash emails. Paul Chisnall, who acted on the broadly similar Salient (VictoriaUniversity student newspaper) case last year commended the “slick legal manoeuvering and excellent application.” It’s interesting to watch the development of the whole area of privacy and confidentiality. It would be nice to see one of these go the distance.

Millionaire factory hands

Deborah Hill Cone’s report last week on the major law firm rankings got some feathers ruffled, but no one seriously believes the boys and girls at The Factory, aka Russell McVeagh, are anywhere but in the top triumvirate of any earnings ranking, almost certainly with Chapman Tripp and Bell Gully. Factory equity partners reportedly took home $1 million last year. However, it’s clear from UK reports the whole pay structure is rapidly changing to meet younger lawyers’ expectations on their way toward partnership. The rigid, hierarchical structure for major firms no longer works the way it used to. The fact is that the massive growth experienced by many London firms has seen the partnership suites filled. To continue to attract talented lawyers, many firms are trialing new pay and career options. These include different bonus and pay structures, different levels of pay and status, more salaried partners and other steps that local firms will need to embrace, too.

Report questions top lawyer’s credibility
The National Business Review - 28 October 2005 : 10-01

Blocking tactics come to nothing in the battle of Talley v McFadden
Jock Anderson

Prominent Nelson lawyer Nigel Alexander McFadden faces disciplinary charges alleging deceit and conflict of interest.

A second law society investigation recommended charges be laid against Mr McFadden, senior partner in McFadden McMeeken Phillips and a former chairman of the Nelson Marlborough District Health Board and Deportation Review Tribunal, for breaches of the Law Practitioners Act.

It is the latest development in a long-running saga, which began more than six years ago when Nelson businessman Michael Talley accused his former friend and legal adviser of betraying him over a subdivision zoning issue.

The re-hearing of the Talley complaint followed unsuccessful efforts by Mr McFadden in the High Court and Court of Appeal to block a re-hearing.

The re-hearing also considered Mr McFadden’s complaints history, which an earlier Wellington District Law Society hearing did not.

A Canterbury District Law Society complaints committee found sufficient evidence of professional misconduct, specifically deceit and conflict of interest, to warrant charging Mr McFadden. Wellington Queen’s counsel Brendan Brown has been instructed to prepare charges.

Since any sanction against Mr McFadden is unlikely to involve striking off or suspension, the charges are expected to be heard by a law society district tribunal, rather than a national disciplinary tribunal, thus ensuring the matter continues to be dealt with behind closed doors.

The initial complaint by Mr Talley and his wife Lorraine involved allegations that Mr McFadden had betrayed both personal and professional relationships which had existed between them.

At its heart the Talley complaint was that, having accepted instructions from the Talleys to protect their interests in their coastal property under the Tasman District Council’s proposed plan, Mr McFadden failed do to so.

He acted at the same time for what was variously called the Kina or Wood Trust, which held a competing interest in securing rural residential zoning.

The Talley complaint also contained further allegations that Mr McFadden had made false and misleading statements not only to the Talleys but also to the New Zealand Law Society, the National Business Review, the courts and the Tasman District Council - referred to as the “third party deceit complaint.”

But the Canterbury committee ruled that with the exception of concerns over information given to the Tasman District Council by Mr McFadden and his explanations to an earlier complaints committee, those further allegations related to matters after the original Talley complaint and were outside its jurisdiction.

While the Canterbury committee found there was no evidence that would support a finding that Mr McFadden had a personal beneficial interest in the Kina Trust, he had a conflict of interest.

Although it was Mr McFadden’s position that he finally faced up to the conflict in March 1999, the Canterbury committee was concerned about evidence both around that period and in the preceding years that Mr McFadden, “leaving aside conflict issues was simply not acting frankly.”

The committee found there was clear evidence of misconduct in relation to the conflict complaint of sufficient gravity to warrant the making of a charge.

The committee also said aspects of the original Talley complaint focused on the proposition that Mr McFadden had deceived them over “a very long span of time.”

It considered that evidence of a lack of fullness and frankness on the part of Mr McFadden in dealing with the Talleys on the facts underlying his conflict constituted evidence of further professional misconduct.

Mr McFadden did not return NBR‘s calls and Mr Talley declined to comment, saying the matter was still in the hands of the law society.

How the saga unfolded - page 32

The re-hearing also considered Mr McFadden’s complaints history, which an earlier hearing did not

McCully sets his teeth into race conciliator
The National Business Review - 08 Aug 2003 : 03-01

Karl du Fresne

Wellington

National MP Murray McCully, dusting off long-forgotten legal know-how, is bracing for an appearance before a full bench of the High Court as he continues his dogged pursuit of race relations conciliator Joris de Bres over the controversial Taleban speech Mr de Bres gave last December.

Mr McCully, who has a law degree but has never practised, went up against Queen’s counsel Brendan Brown, acting for Mr de Bres, in a recent chambers hearing, which resulted in Justice Lowell Goddard deciding the case raised an issue that was sufficiently important to be dealt with by the High Court.

That issue is whether Mr de Bres is entitled to immunity from complaints about the speech, in which he accused colonial New Zealand governments of cultural vandalism similar to that perpetrated by the Taleban in Afghanistan.

Mr McCully told The National Business Review he was just as offended by Mr de Bres’ attempt to claim immunity as he was by the original speech.

“The immunity issue is now arguably the more important feature of this case,” he said.

Mr McCully’s original complaint was that the Taleban speech breached s61 of the Human Rights Act - the very statute Mr de Bres is required to uphold - which makes it an offence to publish words likely to incite hostility against or bring into contempt any group of persons on the grounds of their race, colour or ethnic origins.

He claimed Mr de Bres used words that were abusive and insulting and likely to cause offence to non-Maori New Zealanders. But legal argument has hinged on whether Mr de Bres is entitled to immunity under s130 of the act, which protects the race relations conciliator from legal action for statements made in the course of his duties unless it can be shown he acted in bad faith.

Justice Goddard accepted Mr Brown’s argument that the immunity issue concerned not only Mr de Bres but also other members of the Human Rights Commission. She said there was a clear need for urgency in having the issue definitively determined by the High Court, and because it had importance beyond the ambit of the present case it was possible a full bench of the court would be convened.

Justice Goddard noted Attorney-General Margaret Wilson, who was also represented in the case, wanted a High Court ruling on the immunity issue.

But the judge declined Mr Brown’s request that the High Court also determine whether Mr de Bres acted in bad faith.

She accepted Mr McCully’s argument that the bad faith question should be resolved by the Human Rights Review Tribunal. Otherwise, she said, the court would be usurping the tribunal’s role.

Justice Goddard commented that the implicit allegation of bad faith in Mr McCully’s complaint was “very grave” and it was in the public interest for the complaint to be dealt with urgently.

Mr McCully, who earlier represented himself in preliminary proceedings before the tribunal, told NBR the legal manoeuvring in the case had put him through a quick learning process. He believed it was the strategy of Mr de Bres’ legal team - who he said was being paid by the taxpayer - to tie him down in preliminary legal arguments.

The cost of the case to the taxpayer so far would have run to tens of thousands of dollars, raising questions about a process that was supposed to be accessible to lay citizens.

Mr McCully, who forsook a legal career for public relations before entering politics, said he would continue to represent himself before the High Court but might engage a barrister when it came to cross-examination on the substantive issues in the case.

He said he had neither asked for nor received the formal backing of the National Party in pursuing his complaint but had been given a lot of encouragement by colleagues and party members.

Mr McCully has never met Mr de Bres but said he started from the perception that Mr de Bres was a political appointee with “way-out” personal views, who consulted only fellow travellers who shared those views.

The question at the heart of the case was whether, in giving the Taleban speech, Mr de Bres was acting as a responsible race relations conciliator or as a private individual “nursing some private prejudices and going out of his way to offend people.”

IMMUNITY CHALLENGE: The issue is whether Joris de Bres is entitled to immunity from complaints he breached the Human Rights Act.

CARTER HOLT HARVEY FIGHTS PREDATORY-PRICING CLAIM
The National Business Review - 29 Oct 1999
BY MICHELE SIMPSON

Carter Holt Harvey faces a penalty of up to $5 million if it is found to have breached the Commerce Act in what could be a long-running High Court battle.

The case, which started in Auckland last week, could last until December. It centres on alleged below-cost pricing by Carter Holt Harvey building products group to force out a competitor.

A division of Carter Holt Harvey, Inzco, sold insulation, stainless steel sinkware, specialist flooring and a number of other products.

In his opening address, Commerce Commission lawyer Brendan Brown QC said the commission started investigating the Inzco “2 for 1” insulation promotion after a complaint from Nelson man Lindsay Newton who ran a business known as New Wool Products.

Mr Newton launched a product known as Woolbloc in 1992, Mr Brown said.

Inzco is alleged to have supplied its Wool Line insulation product at below cost. The product was sold by distributors in Nelson and Blenheim at “significantly reduced prices”.

Mr Brown alleges Wool Line was sold at half the original price. The pricing offers were made through Placemakers and Fletcher Merchants in 1994.

Inzco kept a close eye on Mr Newton’s Woolbloc sales. In a 1994 South Island monthly sales report the company said: “Woolbloc is now very active in the central and Southland regions. A pricing strategy is now a high priority for wooline [sic] if our distributors are to be competitive with the direct selling by Lindsay Newton to the local builders … ”

The Commerce Commission launched an investigation into the Inzco pricing promotion which had attracted further publicity after Mr Newton contacted an MP who took up his cause.

Meanwhile, the Inzco deal continued and about October 1994 it was reported Mr Newton’s New Wool Products had had to stop production.

The commission did not believe Inzco was offering a “genuine promotion”.

Mr Brown said the Inzco promotion was “far from being merely introductory and short in duration”.

“Inzco’s intentions were to ‘remain competitive’ in the Nelson market in the long term,” Mr Brown said this week.

A November 1994 letter from law firm Russell McVeagh McKenzie Bartleet & Co said: “Inzco’s pricing for the Wool Line product will be further reviewed in order to ensure that it is reasonably competitive with the Woolbloc product. The commission surely does not want to impose on Inzco a decision it cannot sell below cost and so effectively force it to exit the Nelson market.

“Hardly ‘competition at work’ or in consumer’s interest. The market will impose its own discipline.”

The case is being heard by Justice Hugh Williams. David Williams QC is representing Carter Holt Harvey. The company refused to comment.

COMMISSION CLAIMS CHH ACTION MOTIVATED BY FEAR
The National Business Review - 03 Dec 1999
BY MICHELE SIMPSON

Carter Holt Harvey came out with a “me too” product after the competition spread “like a disease” and threatened its market share, the Commerce Commission told the High Court this week.

In his closing statement for the commission Brendan Brown QC said Inzco, a division of Carter Holt Harvey, was concerned a competing insulation product called Woolbloc would “spread and infect” other areas outside its Nelson and Blenheim base.

The commission has taken Carter Holt Harvey to court over alleged predatory pricing, saying it breached the Commerce Act over a promotion for its own product, Wool Line, more than five years ago.

If Carter Holt Harvey loses the case, which started more than a month ago in Auckland, it faces a penalty of up to $5 million.

Inzco sold insulation among other products and was targeted by the commission when it launched a “2 for 1” promotion following a complaint from Nelson’s Lindsay Newton who ran a local business, New Wool Products in 1992. Mr Brown called New Wool Products a “fledgling regional enterprise” up against the “second-largest New Zealand corporate.”

He said New Wool Products was a competitive force in the market and that evidence put forward showed its product, Woolbloc, was a concern for Inzco’s but also for its distributors.

Carter Holt Harvey disputes its promotion of its own insulation product was run to force out a local competitor. “There will often be instances where companies sell below cost for perfectly commercial and rational reasons,” Carter Hol Harvey’s barrister, David Williams QC, said.

Mr Brown said the Woolbloc threat to Inzco and its distributors was significant because it had an impact on sales of Pink Batts - a Carter Holt Harvey product.

Inzco executives addressed the problem of Woolbloc in the market with a “me too” competing product, said Mr Brown.

“It was intended [Wool Line] would have the effect of lowering the consumer/trade perception of wool as the ultimate in insulation by remaining its uniqueness of product into an ‘also ran’.”

Mr Brown said until the arrival of Woolbloc in 1992 the only competition in the region was among Inzco distributors competing over Pink Batts sales.

Inzco’s decision to take on Woolbloc was made “hastily” and a trial product launched in December 1993, he said.

The commission was not trying to prove Woolbloc had caused Inzco to develop its own woollen insulation product but that it caused Inzco to “accelerate” the development of the Wool Line.

“[And] when it turned out that Inzco had got its product launch wrong, the impact of [New Wool Products] was a reason for the ‘promotion,” said Mr Brown.

He accused witnesses for Carter Holt Harvey of protesting too much over the fact Woolbloc had not been the original reason for the Wool Line product development. New Wool Products’ plant was shut down by the owner, Mr Newton, in 1994 and he laid off his staff after the company experienced a “significant” drop in sales.

Don Brash MP
National Party Leader

22 November 2006

Avenues to allow book’s release being explored

National Party Leader Don Brash has confirmed that he has this morning had an initial brief telephone conversation with his legal counsel, Brendan Brown QC, who is currently in Sydney.

“As I’ve said earlier, I want to see the book by Nicky Hager published so that the claims can be exposed to daylight.

“On the strength of the initial discussion with Mr Brown, I am confident that there are ways in which the book can be released, even in the next few days. These are being actively explored.

“I will be making a further statement on this matter tomorrow once I have had the opportunity for a more substantive discussion with Mr Brown.

“I will not be making any further statement on this matter today.”

Letter from Dr Peter Wills to Dr Stuart McCutcheon

Forwarded on behalf of Dr Peter Wills.

15 October 2003

Dr Stuart McCutcheon
Vice Chancellor University of Victoria
Po Box 600Wellington 6001

Dear Dr McCutcheon,

As the alleged inspirer of the now infamous Madge billboard and as a scientist I reply to your assertion, reported in yesterday’s NZ Herald, that GM protestors are making unscientific claims such as the implication that women might be genetically modified to have four breasts. Apparently in the next breath you reportedly characterize us as terrorists.

Some baby girls are born with more than two nipples and are surgically “normalised”. But molecular biological processes are not bound by social norms and it is the aim of genetic engineering to gain exquisite control over natural variation and exploit it.

From my critical perspective I dispute the claims of how precisely and carefully genetic variation can be controlled through engineering, but the deliberate alteration of genes that determine processes of development is now an everyday event. The billboard portrays an outcome of GE that is technically plausible.

AgResearch is working on ways to control what happens during muscle development in cattle so that we can eat different meat. It is also learning how to use bovine lactation to produce proteins derived from human genes.

However, we are shocked to think of female humanoids being used as bioreactors, even if they had been engineered to have the intelligence and emotions of cattle as well as extra breasts. Ultimately, only ethical standards would block attempts to create multi-breasted woman-like animals whose milk proteins would not have the problems of cow/human mismatch such as AgResearch will struggle to overcome.

What is so special about human molecular biology that it should not be engineered to create bioreactors that do not have the problems of cows? Well, I find the idea repugnant, but I am also very offended by the idea of genetically altering cows for AgResearch Ltd’s crass commercial purposes.

The real point of the billboard is that we do not see cows as a species worthy of a right of protection from genetic engineers. No, they are considered so sub-human that we change with impunity their genes and therefore the role of this species as domestic friends of human society with a heritage stretching back over thousands of years of simple animal husbandry.

In my view the close relatives and friends of humans should be afforded some of the rights that I want claim for humans - not to suffer unnecessarily and not to be genetically engineered. I hope the Madge billboard has shocked a few people into thinking about it. ERMA didn’t feel any need to consider the issue before it gave AgResearch permission to proceed with its experiments.

Your reported insinuations about anti-GE terrorists are well out of date. When I testified to the Royal Commission on Genetic Modification on 8 November 2000, Counsel for the Life Sciences Network, a body falsely representing itself as having the support of my employer, the University of Auckland, tried to link my point of view to concerns involving the Security Intelligence Service. On 8 May 2002, one of the persons who could perhaps have detected the fraudulent nature of the LSN’s representations, QC Brendan Brown, used the same technique during cross-examination of my testimony to the Waitangi tribunal about genetic engineering, Western science and matauranga Maori, except that he flattered me by elevating the level of concern from the local (SIS) to the super-international (MI6).

If you want to call me a terrorist and invoke against me the draconian measures that have recently been passed into law against my most reasonable, thoughtful and academically sound protestations, then please have the courtesy of first addressing your accusations to my face and give me the chance to answer them.

Yours,

Peter R Wills Associate Professor Department of Physics University of Auckland email: [email protected] Private Bag 92 019 Aucklandhttp://www.phy.auckland.ac.nz/staff/prw/ New Zealand http://www.physics.auckland.ac.nz/html/wills.html