Health and Safety at Work

The Health and Safety at Work Act 2015 requires businesses to be proactive to ensure that workers and other persons in the workplace are kept safe. Some of the important changes are:

  • The Act introduces the concept of “PCBU” or “person conducting a business or undertaking”. A PCBU can be a company or an individual who is a sole trader but does not include someone who is solely an employee.
  • A PCBU has various obligations to ensure, so far as is reasonably practicable, the health and safety of workers, which includes employees and contractors who are under the direction or influence of the PCBU.   The PCBU must also ensure, so far as is reasonably practicable, that other persons such as visitors are not put at risk from work that is carried out by the business.
  • The definition of workplace is broad and includes places where a worker goes, or is likely to be, while at work and includes cars, trucks and boats.
  • Directors and other persons such as chief executives who exercise significant influence over the management of the business must exercise due diligence to ensure that the PCBU complies with its duties. Workers must also take reasonable care for their own health and safety and also that they do not adversely affect the health and safety of others.
  • Due diligence includes taking reasonable steps to keep up to date with health and safety matters, ensuring that the PCBU has processes in place to minimise or eliminate risks and that those processes are actually implemented.
  • Penalties for offences have substantially increased so that reckless breaches could result in an individual receiving up to 5 years’ imprisonment and/or a fine of up to $600,000 and a company receiving a fine of up to $3 million.

Criminal Proceedings FAQs

Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.

How is a criminal proceeding brought?
A criminal proceeding is commenced by filing a “charging document” in the District Court nearest to where the offence is alleged to have been committed or where the prosecution believes the defendant can be found.

What information does the prosecution provide to the defendant at the commencement of the criminal proceeding?
The prosecution is obliged to provide “initial disclosure” at the commencement of the criminal proceeding or as soon as practicable up to 15 working days later.  “Initial disclosure” should at least include the “charging document”, summary of facts and a printout of any previous convictions.

The prosecutor must provide “full disclosure” as soon as is reasonably practicable after the defendant has pleaded not guilty.  The standard information that has to be disclosed includes a copy of any statement or brief of evidence made by a prosecution witness, any record of an interview or statement made by a person who the prosecutor does not intend to call as a witness, details of any criminal convictions for a prosecution witness that may affect that witness’s credibility, a list of exhibits and any report from an expert.

How does a defendant obtain bail?
For some offences the Police may grant bail on conditions after charging the defendant at the police station and release the defendant to attend Court on a particular day.  In more serious cases the defendant is taken to Court where it is necessary to apply to the Court for bail. If bail is opposed by the Police then a Judge will make a decision as to whether the defendant should be released on bail and, if so, may impose bail conditions on the defendant.

Bail conditions can include requiring the defendant to reside at a particular address, to report to a police station between certain hours on specified days, to remain at a residential address between certain hours, not to associate with witnesses and/or other defendants.  A defendant can be arrested for breaching bail conditions and this can result in the Court refusing to grant bail again.  If the Court refuses to grant bail then a defendant may be kept in custody until the proceeding has been determined.

What is a case review hearing?
If a defendant pleads not guilty then the proceeding is usually adjourned to a “case review hearing”.  Prior to the case review hearing defence counsel and the prosecutor need to discuss whether the charges can be resolved or whether a trial will be required.

What happens at a jury trial?
At the commencement of a jury trial the Court Registrar reads out the charge or charges to the defendant.

If the defendant pleads not guilty to one or more charges then a jury of 12 persons is selected to try the case.  Each defendant is entitled to challenge up to 4 jurors “without cause” as part of the jury selection process.

Once the jury is selected then the Judge will usually make some introductory remarks following which the Crown prosecutor will make an opening statement to the jury outlining the case against the accused.  Defence counsel may also make a brief opening statement.

The trial proceeds by the Crown prosecutor calling witnesses and counsel for the accused has the opportunity to cross-examine each witness. Once the Crown has called all its witnesses then the defendant has to make an “election” as to whether to give evidence and/or call a witness or witnesses in support of the defence case.  There is no obligation on a defendant to give evidence or to call other witnesses.  If the defendant elects to give evidence and/or call witnesses then the defendant and any witnesses can be cross-examined by the prosecutor.

Once the evidence is complete then the Crown prosecutor will make a closing address to the jury, followed by defence counsel and finally a summing up by the trial Judge.  The jury will then retire to consider its verdict on each charge.  The jury will indicate once it has reached verdicts and these are read out in Court in the presence of the defendant.  If the verdicts are not guilty then the defendant will usually be free to leave the court.  If there is one or more guilty verdicts then the Judge will usually remand the defendant to another date for sentencing either on bail or in custody.

What happens at sentencing?
The sentencing Judge receives submissions from both counsel for the prosecution and defence counsel as to the appropriate sentence.  The Judge is also likely to receive a report from a probation officer which contains a recommendation as to the appropriate sentence.  If there is a victim of the offending then the Judge is also likely to receive a “victim impact statement” which describes the effect that the offending has had on the victim.  The Judge will take these and other matters into account before verbally advising the defendant of the penalty imposed and the reasons for it.

Criminal Proceedings – Peter Davey, Auckland Lawyer | Criminal Proceedings in Auckland

Mediation FAQs

Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.

What is mediation?
Mediation is a form of negotiation that is assisted by an independent person (“the mediator”), who controls the negotiation process.  The mediator does not make a decision regarding the dispute (unless the parties agree to this happening) and it is up to the parties to decide the outcome.

What are the advantages of mediation?
Mediation assists with communication between the parties to a dispute and may help to preserve any ongoing relationship between them.

Mediation allows the parties to explore options to resolve the dispute which may be more flexible than the options available to a Judge or an arbitrator if a decision is imposed on them.

Mediation is less formal than a court hearing as it involves the parties sitting together with their legal representatives and the mediator to discuss the dispute.

A mediation can usually take place much quicker than a court hearing.

Mediation is less expensive than a trial and the mediator’s fees and expenses are usually shared equally by the parties.

Mediation is also confidential and held on on a “without prejudice” basis. This means that anything said during the course of the mediation cannot be used subsequently in any arbitration or court proceedings, except in limited circumstances.

What are the disadvantages of mediation?
Mediation invariably involves compromise in order to reach a settlement and depends on each party’s willingness to resolve the dispute. As a result, there is the possibility that the dispute may not be resolved at a mediation.

What happens at a mediation?
The mediator usually makes some introductory remarks about the mediation process.

Each party is then given an opportunity to make an opening statement setting out that party’s perspective of the dispute.

After the opening statements the mediator assists the parties to identify and discuss the issues between them and ultimately explore solutions for settlement.

As part of the process the mediator may “caucus” the parties (i.e.) meet with them and/or their representatives in private to discuss certain aspects of the dispute and to explore possible solutions. Any information disclosed to the mediator during a caucus session will not be conveyed by the mediator to another party without express consent.

If a settlement is reached then the parties or their representatives will draw up an agreement or at least heads of agreement for the parties to sign prior to leaving the mediation.
Mediation – Peter Davey, Auckland Barrister | Mediation

Arbitration

Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.

What is arbitration in NZ?
Arbitration is an agreed process between parties in dispute for one or more arbitrators appointed by them or by default to determine a dispute between them.

How is a dispute referred to arbitration?
In order to arbitrate a dispute there must also be a binding agreement between the parties to either submit all or certain disputes between them to arbitration. It is not necessary for an arbitration agreement to be in writing unless one of the parties is a “consumer” in which case the Arbitration Act 1996 sets out specific requirements before such an arbitration agreement is enforceable.
Unless otherwise agreed, an arbitration is commenced when one party gives notice to the other party requesting that the dispute or disputes between them be referred to arbitration. In general, a party is not entitled to issue proceedings in a Court where there is a binding agreement to arbitrate the particular dispute and the other party may apply to the Court to stay any such proceedings.

What are the advantages of arbitration?
The parties have a reasonable amount of autonomy to determine the particular procedure to govern the arbitration and timing for determining the dispute. The arbitration is confidential to the parties and the hearing is held in private.

What are the disadvantages of arbitration?
The parties have to meet the cost of the arbitrator.

There is no ability to join other parties to the arbitration unless they are also parties to the arbitration agreement.

What procedure is used by the aribtrator?
The rules relating to the conduct of the arbitration are governed by the Arbitration Act 1996 except where the Act allows the parties to agree to vary its terms.

Arbitration – Peter Davey, Auckland Barrister | Arbitration in Auckland, NZ

Civil Proceedings – High Court

Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.

How are proceedings brought?
A civil proceeding is usually commenced by filing a statement of claim in the Court closest to where a defendant resides. In general, claims under $200,000 are filed in the District Court and claims over that amount are pursued in the High Court.
The statement of claim sets out the main factual matters relied on in support of one or more legal causes of action against a defendant. The statement of claim must provide sufficient details to inform each defendant of the nature of the claim and the remedy being sought. If a defendant believes that there is insufficient information in the statement of claim then it may request the plaintiff to provide further particulars of the claim. If necessary, an order may also be obtained from the Court for the plaintiff to provide those details. The plaintiff will usually also have to serve a bundle of all documents referred to in the statement of claim and any additional principal documents used in preparing the statement of claim.

How are proceedings defended?
A defendant usually has 25 working days from the date on which the proceeding is served to file a statement of defence to the claim. An overseas defendant needs to consider whether to oppose the jurisdiction of a New Zealand court before filing any document in the proceeding.The statement of defence responds to each of the factual allegations in the statement of claim. Sometimes, a defendant will also set out a claim against the plaintiff (i.e.) a counterclaim and the plaintiff is then required to file a statement of defence to that claim.
A defendant may also sometimes seek to join another party into the proceeding on the grounds that the defendant has a right to relief from that party or that it has another related claim against that party which should be heard in the same proceeding.

What is a summary judgment application?
A summary judgment application is a fast track procedure which is usually sought by a plaintiff at the commencement of the proceeding to obtain judgment where a defendant has no arguable defence to some or all of the claim. The plaintiff is required to file an affidavit(s) in support of the application which sets out the factual background to the claim and why the plaintiff believes there is no defence.
If a defendant considers that it has an arguable defence to the plaintiff’s claim then it may oppose the application for summary judgment by filing affidavit(s) in opposition setting out its defence. If the plaintiff does not establish that the defendant has no arguable defence then the proceeding will continue as an ordinary proceeding with the parties undertaking discovery and proceeding to trial in the usual manner.

What is discovery?
Discovery is the process by which each party to a proceeding discloses to every other party all documentation in its control that is relevant to the issues between them. Documentation includes written documents and electronically stored information. It also includes documents within a party’s control but not necessarily in that party’s possession, e.g. documents belonging to that party which are held by its lawyers or accountants. Confidential and/or commercially sensitive documentation is required to be disclosed although it may be possible to restrict access to such documentation. All relevant documentation must be discovered and this includes documents that adversely affect that party’s own case.
The relevant documentation is collated into an affidavit listing the documents, which is divided into different parts. The first part sets out documentation which other parties may inspect. The second part lists documents for which privilege is claimed (ie) other parties may not inspect. For example, privileged documentation includes correspondence between a party and its lawyer which records legal advice.
Each party then has an opportunity to inspect documents contained in the first part of the affidavit of documents. If a party does not provide full discovery of all relevant documents then an order may be sought from the Court requiring further discovery to be carried out. It is also possible to seek discovery against a non-party to the proceeding but this is usually on the basis that the party seeking discovery will pay the non-party’s costs in providing discovery.

How is the proceeding controlled?
The Court will allocate a case management conference after a statement of defence has been filed. The purpose of the conference is to identify the issues between the parties, the scope of discovery and any other directions required for the future conduct of the proceeding.

What are interlocutory applications?
At any time prior to trial the parties may apply to the Court for orders in relation to the proceeding. For example, a party may apply to the Court for an order for further discovery of documents by another party. If the application is opposed then the Court will conduct a hearing and make a decision. The party that is unsuccessful at the hearing is likely to have to pay a contribution towards the legal costs of the successful party in relation to that application.

How is a trial conducted?
The Court will allocate a date for a trial and this includes a timetable for each party to present its evidence prior to trial. Generally, the plaintiff will first prepare its briefs of evidence, which set out the evidence that each of its witnesses will swear to at trial. The defendant will then prepare its briefs in response. The plaintiff will then usually prepare a common bundle of the particular documents that the parties are relying on at the trial.
The trial usually commences with the plaintiff’s counsel making an opening statement setting out the plaintiff’s claim. The plaintiff then calls each witness to read his/her written brief of evidence following which the defendant’s counsel has an opportunity to cross-examine each witness. The defendant may then make an opening statement and call its witnesses in the same manner.
After all the evidence has been heard the parties make closing submissions to the Judge based on the evidence that has been given and the relevant legal principles. The Judge will then make a decision although this is often delivered at a later date after he/she has had an opportunity to reflect on the evidence and/or the relevant law.

Who bears the legal costs in bringing or defending the proceeding?
A plaintiff may decide to discontinue its claim prior to trial but is likely to be required to pay a contribution towards the legal costs of the other parties unless there is an agreement reached that no costs will be sought.If a proceeding proceeds to a trial then the Court will usually make an order requiring the unsuccessful party to pay a substantial proportion of the legal costs and expenses of the successful party. On rare occasions a party may be awarded its actual costs.

Is it possible to appeal?
A party that is aggrieved by the Judge’s decision may file an appeal in the Court of Appeal.

Civil Proceedings – Peter Davey, Auckland Barrister