Business failure rates down

Defying some predictions (similar to the unemployment rate), business failures are down through June and July. How much of that is due to the financial support packages is unknown.

We’re still in the middle of a wild global economic storm, and things will get worse. But no one expected us to actually eradicate covid, and our points of comparison are scant. The economy is doing vastly better than anyone anticipated.

Business are bracing, and have made significant layoffs and reduced hours, but the feared wave of company collapses hasn’t yet made even the hint of an appearance. Sectors unexposed to border closures are, however, basically back to normal.

I am not sure those complaining about the health:economy trade off give quite enough credit for how a successful response for the former bolsters the latter.

These stats are telling:
-Wage subsidy payment to business that have since failed: $11m
-Wage subsidy repayments by business who found the downturn actually wasn’t bad enough for them to qualify: $317m

The first stat will undoubtedly grow dramatically once the extension (effectively a subset of the most vulnerable) expires, but that is a crazy low baseline that suggests the contagion is far less acute than feared.

The wage subsidy extension expires this month, so the crunch will likely come from September onwards. It’s impossible to predict how bad (or not bad) it might be for both job losses and business failures.

See Unemployment statistics for June quarter 2020

High Court bars Jami-Lee Ross from publishing SFO documents

Ex National and now Independent MP Jami-Lee Ross, who is being prosecuted by the Serious Fraud Office over donations made to National that Ross went public about to try to damage National, has now been barred from publishing documents provided to him by the SFO as part of the prosecution proceedings.

RNZ: High Court blocks Jami-Lee Ross from publishing sensitive documents

The SFO said the material was sent to all the defendants as part of its disclosure obligations and Ross then expressed an interest in publishing it.

“The agency believes any publication of the material would have breached the SFO’s secrecy provisions and been contrary to requirements of confidentiality applying to the use of material obtained through court proceedings.

“However, the SFO sought a court order to ensure there was no doubt that the material remained confidential,” the agency said in a statement.

Ross said he had no intention of breaching people’s privacy but wanted to expose the nature of the documents.

After his attempt to expose National backfired on him badly Ross should have been cautious about publicising court documents.

Perhaps he thought that any publicity was good publicity heading into an election he looks likely to lose.

It is more common for politicians to insist on their own silence on matters ‘before the courts’.

Ross maintained that he was a whistleblower, but the SFO seems to think differently.

In February Ross made a statement to the court that there was “No basis for such a concern” that Ross ” may make a statement to Parliament regarding the matter”.

RNZ – National Party donations case: Jami-Lee Ross named as suppressions lifted

Former National MP, and now independent, Jami-Lee Ross, has been named today as one of the four people facing Serious Fraud Office (SFO) charges in relation to two $100,000 donations made to the National Party.

Today the application filed for Ross said he “has not and does not seek interim name suppression and is happy if such orders are discharged or lapse”.

His application also said the other three had applied to have name suppression lifted “due to an apparent concern that Mr Ross, as a sitting Member of Parliament may make a statement to Parliament regarding the matter”.

“No basis for such a concern has been provided, and there is none,” it said.

“Parliament has been sitting for a week. During that time, Mr Ross has at no time indicated an intention to make a statement in Parliament or to the public regarding this matter in breach of the current orders, nor has he done so. He has complied fully with the interim orders, notwithstanding these were never sought by him.”

But a week ago Ross did want to reveal details in Parliament.

NZ Herald: National’s President Peter Goodfellow addresses threats from Jami-Lee Ross to release leaked donor info

National’s president is playing down threats by ex-National MP Jami-Lee Ross to make public the party’s 2017 donation records in the House tomorrow.

On Sunday, the sitting Botany MP claimed to have been leaked National’s 2017 donor list…

He said he planned to table evidence of this in Parliament before Parliament adjourns for the campaign period.

Ross told the Herald that at this stage, he planned to table the documents during tomorrow’s general debate in the House.

He must have been blocked from tabling the documents.

And it doesn’t seem a coincidence that the SFO has obtained a bar on releasing documents – are these the same documents that Ross claimed were ‘leaked’?

Stuff: Serious Fraud Office accidentally leaked document to Jami-Lee Ross

On Thursday, the SFO welcomed a court decision confirming the confidentiality of material that was inadvertently disclosed by the agency to the defendants.

The material was disclosed during the course of the agency’s compliance with its normal disclosure obligations.

In a statement by the SFO on Thursday, it said it had acted with an abundance of care in seeking the court order as one of the parties had reportedly expressed an interest in publishing the material.

“The agency believes that any publication of the material would have breached the SFO’s secrecy provisions and been contrary to requirements of confidentiality applying to the use of material obtained through court proceedings.”

The SFO then sought a court order to ensure there was no doubt that the material remained confidential.

This doesn’t sound like a leak to me, despite their headline Stuff reports “inadvertently disclosed” and “the material was disclosed during the course of the agency’s compliance with its normal disclosure obligations”.

Auditor-General critical of Provincial Growth Fund

Yesterday morning Shane Jones promoted job creation due to the Provinciakl Growth Fun – see Questionable Provincial Growth Fund job claims.

Later in the day the Auditor-General strongly criticised the PGF:

Stuff: Auditor-General takes Provincial Growth Fund’s ‘fund within a fund’ to task

The Government’s Provincial Growth Fund has been savaged by the Auditor-General for a lack of transparency, lacklustre conflict management and operating a “fund within a fund”.

The Auditor-General, Parliament’s financial watchdog, was specifically critical of a $30 million spend, authorised by Cabinet for “manifesto commitments to the regions”.

That funding was approved soon after the fund was established, and soon grew to $85m. The Auditor-General queried why certain projects were funded from this specific pot of money.

“It was not always clear from the documentation why certain projects were considered for funding from this part of the Fund,” they said.

The report went on to say “it was difficult to find evidence of how projects had fully met the normal criteria for the Fund,” and that, in effect, the “manifesto commitments” pot was “operating as a ‘fund within a fund’”.

The Auditor-General was also highly critical of the transparency of the PGF and the early focus of the fund’s Provincial Development Unit (PDU) on political “deliverables” ahead of the clear purpose of the overall fund, which it said were very broad and so difficult to assess.

“The PDU’s reporting requirements in the first funding agreements were only about ‘deliverables’ (for example, numbers of training courses to be delivered) and not on achieving the Fund’s objectives (for example, the number of trainees getting a job), the report said.

“There is a risk that recipients of this early funding will not report on outcomes without a contractual obligation to do so”.

At the heart of the difficulty is that the PGF was deliberately broadly designed by the Government to fund a wide range of projects. It has mostly involved three Government Ministries – MBIE, The Ministry of Transport and the Ministry of Primary Industries.

Because it was set up so quickly, with pressure to get money out of the door, transparency and reporting has not been sufficient, the report said.

This has led political opponents of the fund to label it a “slush fund” design to buy NZ First votes in the regions.

“In the interests of the transparency of the overall process, it is important for the public and Parliament to have better visibility of how all the parts of the Fund operate,” the report said.

Auditor-General: Managing the Provincial Growth Fund

Read the whole report (56 pages)

There is also: 

Large explosion in Beirut

BBC: Summary

  • A huge blast in Beirut has killed at least 27 people, Lebanon’s health minister says
  • More than 2,000 others have been injured
  • The cause of the explosion in the city’s port area is not yet known
  • Reports suggest the blast was at a warehouse housing explosives
  • It comes at a sensitive time with the country’s economic crisis reigniting old divisions
  • Tensions are also high ahead of Friday’s verdict in the trial of four suspects for the murder of ex-PM Rafik Hariri

Research NZ – low confidence and trust in politicians

Members of Parliament and local council members are the least trusted of a range of professions and groups, and journalists are virtually the same.

Research NZ asked the general public to rate their level of trust and confidence in parliamentary representatives compared to some other professions.

  • Fire Service 89%
  • Ambulance Service 81%
  • Doctors and nurses 81%
  • Police 69%
  • School teachers 65%
  • Lawyers 43%
  • Government workers 35%
  • Journalists 23%
  • Local council members 22%
  • Members of Parliament 22%

Respondents were considered to have trust and confidence if they rated it between 7-10 on a 0-10 scale.

With elected representatives and those who are supposed to hold politicians to account grouped a distant last this doesn’t look good for our democracy.

Why did the Advance NZ Public Party not feature in the polls?

In response to Thursday’s 1 News/Colmar brunton poll someone commented:

Please include Advance NZ Public Party in your polls next time. It is a rapidly growing movement that has more members than the major parties. There were 2500 people at the launch. Billy Te Kahika is the leader with Jamie Lee Ross the deputy leader.

I have nothing to do with any polling so can’t include anyone.

Now Colmar Brunton have posted full poll details (1 News don’t give all the numbers in news reports) here are all the parties included:

  • Labour 53%
  • National 32%
  • Green Party 5%
  • ACT Party 4.8%
  • New Zealand First 2.0%
  • New Conservative 1.2%
  • Maori Party 1.0%
  • ONE Party 0.2%
  • Aotearoa Legalise Cannabis Party 0.2%
  • The Opportunities Party 0.1%

So why no Advance NZ Public Party?

The questions asked are:

“Which political party would you vote for?”
IF DON’T KNOW
“Which one would you be most likely to vote for?”

METHODOLOGY NOTES: The party vote question has been asked unprompted since February 1997.

No party names are provided, so to indicate a party respondents have to know the name of the party.

12 June New Zealand Public Party kicks off

The Co-Leader of the newly merged Advance NZ Party, Billy Te Kahika, will take his fight for democracy to the heart of government by going head to head with Kelvin Davis.

“Te Tai Tokerau is my home and where my wife and children whakapapa to.

There was little publicity in mainstream media, and while the party has become quite popular in social media most voters are unlikely to have noticed.

Last Sunday 26 July: Jami-Lee Ross’ newly formed alliance with NZ Public Party…

Leader of the newly formed Advance NZ Party, Jami-Lee Ross has joined forces with the NZ Public Party…

Half of the Colmar polling had already been done by last Sunday so many people would have been unaware of the joining let alone either party name.

There is another problem – neither party is registered for the Electoral Commission yet. If they don’t manage to do that before the campaign starts they may not be listed on ballot papers.

Bill Te Kahika could still stand in Te Tai Tokerau, and Jami-Lee Ross can still stand in Botany, but they would only get in on their own as electorate MPs if they don’t have a registered party.

It looks like Ross has been unable to get 500 members required to register, which isn’t surprising, he’s probably one of the least popular politicians around.

Te Kahika seems to have grown a significant following but will need to get members to sign up in time to register.

Te Kahika did feature in the ‘preferred prime minister’ part of the poll with 0.7%, which is about 7 respondents, which seems a bit odd but suggests his name is better known than the party name.

He got more than Greens Chloe Swarbrick (0.3%), and Marama Davidson and James Shaw on just 1% (or just 1 respondent each). New Conservative leader Leighton Baker also got 1%.

But it may still be difficult to get rated in polls. Colmar Brunton polls via landlines and mobile phones and doesn’t use online polling.

Reid Research does some online polling so may find some NZPP supporters, but time is running out for NZPP to get noticed enough for that.

While NZPP have quickly built a following via social media it may be too late for this election.

Nottingham succeeds in Supreme Court sentence reduction

Dermot Nottingham has had a rare success in court. He has been successful in an appeal to the Supreme Court over the length of his second home detention sentence, which means he doesn’t have to serve any more of the sentence revised by the Court of Appeal.

This result doesn’t surprise me, as teh maximum home detention term is 12 months and Nottingham has served that in total, although it effectively means the sentence increased by the Court of Appeal has been wiped even though the original High Court sentence was found to be inadequate.

Nottingham was found by both the High Court and Court of Appeal to be largely responsible for publications on the notorious Lauda Finem website, and for campaigns of harassment against five people (I think considered by the police to be just the worst examples but I think that is debatable).

Nottingham just avoided having to serve a prison sentence both times, and although the Crown argued that the reduction of his home detention should have meant the alternative was prison, the Supreme Court disagreed.

Decision

Mr Nottingham was convicted of publishing information in breach of suppression orders and criminal harassment. On 26 July 2018, he was sentenced in the District Court to a term of 12 months’ home detention. Mr Nottingham appealed against conviction and sentence to the Court of Appeal and the Solicitor-General appealed against sentence. By the time the Court of Appeal heard the appeal, Mr Nottingham had served three and a half months of his sentence of home detention.

The Court of Appeal dismissed Mr Nottingham’s appeal against conviction and sentence. The Court allowed the Solicitor-General’s appeal, quashing the original sentence and imposing a new sentence of 12 months’ home detention.

Mr Nottingham was granted leave to appeal to the Supreme Court against
sentence. The only issue on appeal was whether the Court of Appeal erred in imposing a term of home detention which would mean that, in total, Mr Nottingham would serve 15 and a half months of home detention. The issue arose because s 80A(3) of the Sentencing Act 2002 provides that the maximum term of a sentence of home detention is 12 months.

Mr Nottingham submitted that he could not lawfully be required to serve more than 12 months’ home detention as this was the statutory maximum in s 80A(3). The Solicitor-General submitted that the sentence imposed by the Court of Appeal was permissible because the Court had imposed a new sentence. In these circumstances, the Solicitor-General argued that the old sentence ceased to exist and that the new Court of Appeal sentence started on the day it was imposed.

The Supreme Court has unanimously allowed Mr Nottingham’s appeal. The Court held that s 80A(3) was clear that the maximum term of home detention that can be imposed in relation to an offence is 12 months. Therefore, the Court of Appeal did not have jurisdiction to impose a sentence of 12 months’ home detention in circumstances where Mr Nottingham had already served some time on home detention. The practical effect of the Court of Appeal’s decision was that Mr Nottingham would have to serve more than 12 months’ home detention, contrary to the maximum in s 80A(3).

In order to get to a position where Mr Nottingham’s sentence did not exceed the statutory maximum, the Supreme Court exercised its powers to vary sentences under the Criminal Procedure Act 2011. It did so by varying the sentence imposed by the Court of Appeal to a sentence of eight and a half months’ home detention with a backdated start date of 30 July 2019.

Supreme Court judgment: Dermot Gregory Nottingham v R

Court of Appeal judgment: NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Both the High Court and Court of Appeal sentences seemed a bit contrived, both arriving at a 24 month prison sentence which is the maximum that can be converted to 12 months home detention.

The Court of Appeal stated:

The sentence was premised on the following findings of fact which we agree were consistent with the jury’s verdicts:

(a) Mr Nottingham either was LF (in other words the leading mind of that
blog) or he was so intimately related to it that it was proper to conclude
that he provided information and draft articles to that blog knowing and
intending that they would be published.

(b) Publication and other intimidating and harassing conduct was either
carried out by Mr Nottingham himself or at his direction and he knew
his conduct was likely to cause the individuals involved to fear for their
safety or that of family members.

(c) Although Mr Nottingham may, at least initially, have reasonably
believed he had legitimate grievances in respect of the complainants,
he elected to pursue these, not by lawful and reasonable means, but by
personal attacks on an “anything goes” basis.

With multiple charges and different offences sentencing can be complicated.

Based on seven convictions the High Court judge arrived at a total sentence of 2 years and 4 months prison but gave a 4 month deduction:

…to reflect what he described as Mr Nottingham’s “multi-faceted and complex” health problems s, which in the Judge’s view meant that a sentence of imprisonment would be much harder for him than for an average middle-aged man in reasonable health. He identified this as the only mitigating factor resulting in a provisional end sentence of two years’ imprisonment.

That required the judge to consider replacing that with a 1 year home detention sentence, which he did.

He said he regarded home detention as an appropriate and sufficient response, particularly because of the ability to impose restrictive conditions limiting Mr Nottingham’s activities and assisting his rehabilitation.

Special conditions were imposed including that Mr Nottingham attend
counselling or treatment programmes as directed by a probation officer and that he not use any electronic device capable of accessing the internet without prior approval from a probation officer.

Mr Nottingham said that the sentences should be commuted to time served (three and a half months home detention) and without the requirement for community work on the primary ground that the LF articles on which the harassment charges were based were “not designed to make anyone fear for their safety”.

By contrast, the Crown submitted the sentence was manifestly inadequate and that nothing less than a custodial sentence is sufficient to capture the level of denunciation and deterrence required for what it says was an egregious breach of non-publication orders and malicious and misogynistic attacks on members of the public

The Court of Appeal agreed that Nottingham’s various health issues needed to be taken into account and justified the 4 month reduction in sentence, despite the lack of remorse – he continued to blame others for his attacks on them.

But they arrived at a longer sentence of 31 months imprisonment, which in itself is too much to qualify him for home detention.

But they also had to take into account the 3 and a half months home detention Nottingham had also served, which equates to 7 months prison. So lo and behold, deducting that from the sentence it came to 24 months prison to be served, which again brought home detention into play. So it was converted to 12 months home detention again, but as the Supreme Court found, he shouldn’t serve the 3 and a half months plus the 12 months.

So in total Nottingham served 12 months home detention for a 31 month prison sentence. Such is our judicial system.

I don’t have a problem with him not serving prison time (although other victims of his harassment may have different ideas on that).

But time will tell whether the sentence served will deter Nottingham from further harassment.

We encourage the Department of Corrections Community Probation Service to consider a requirement that Mr Nottingham attend such counselling or courses as would assist him in management of his PTSD and in his incipient understanding (as recorded by the Judge) that his abrasive and combative approach to others may, in part, be consequential on this diagnosis.

His abrasive and combative approach is still apparent. While serving home detention and being banned from internet use Nottingham managed to start legal proceedings against Jacinda Ardern and Ashley Bloomfield:

In doing so, Mr Nottingham has engaged in political comments of a personalised nature, particularly against the Prime Minister.

See  NOTTINGHAM v ARDERN [2020] NZCA 144 [4 May 2020].

But this isn’t the end of this case. Nottingham is still subject to six months of post detention conditions which according to his original sentencing notes and reiterated by the Supreme Court – “The standard and special
post-detention conditions imposed by the Court of Appeal remain in place for the remainder of the 12-month and six-month post-detention periods respectively” – which mirror his home detention conditions, which include:

(a) That you attend an assessment for counselling, treatment or programme as directed by a probation officer. That you attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.

(b) You are not to associate with or contact any victim or witness of your offending without prior written approval of a probation officer, except in relation to … in relation to current proceedings. Again, the rider that it must be approved by a probation officer will cover the means by which that correspondence is to be carried out, just for the avoidance of confusion.

(c) You are not to possess or use any electronic device capable of accessing the Internet for capturing, storing, accessing or distributing images (including without limitation any personal computers, notebooks,
tablets or cellphones) without prior written approval from a probation
officer.

So those conditions are still in place for six months (I’m not sure when from).

Report from Operation Burnham inquiry

Inquiry into Operation Burnham

In April 2018 the New Zealand Government announced that an inquiry into Operation Burnham and related matters would be held.

Operation Burnham was undertaken in Afghanistan by NZSAS troops and other nations’ forces operating as part of the International Security Assistance Force in 2010.   

In 2017 the book Hit & Run was published which contained a number of serious allegations against New Zealand Defence Force (NZDF) personnel.

The Inquiry has sought to establish the facts in connection with the allegations, examine the treatment by NZDF of reports of civilian casualties following the operation, and assess the conduct of NZDF forces.

In common with all inquiries established under the Inquiries Act 2013, this Inquiry has no power to determine the civil, criminal, or disciplinary liability of any person, or award reparations.  However it may, if justified, make findings of fault and recommend further steps be taken to determine liability.

The Inquiry reported back to the Attorney-General on 17 July 2020. The Government has authorised the release of the report which is now published on the Inquiry website.

RNZ: Operation Burnham: Child killed, but death was justified, inquiry finds

A civilian child was killed during Operation Burnham in 2010, but an inquiry has found their death was justified under international law.

Four others were killed, but the government inquiry could not determine if they were civilians or insurgents.

The Burnham Inquiry, led by Sir Terence Arnold and Sir Geoffrey Palmer, has also found New Zealand Defence Force (NZDF) officials did not plot to cover-up the casualties, as claimed in the book Hit and Run by investigative journalists Nicky Hager and Jon Stephenson.

It did, however, find the Defence Force never corrected claims made to the public and ministers by its personnel that allegations of civilian casualties were “unfounded”, despite knowing it was possible.

The Inspector-General of Intelligence and Security has also released its report, which found New Zealand’s intelligence agencies could have done more to help set the record straight.

Read the summary of the findings and recommendations from chapter 1. [PDF, 332 KB]

Read PDF chapters of the report through the following links: 

Read the full PDF of the report in a high resolution, easy to print version. [PDF, 14 MB]

Costs awarded against Spring, Atkins in messy liquidation of Whale Oil

Costs have been awarded against Marc Spring, Juana Atkins, Brian Henry and Howard Taylor in what looks to me like an attempt to interfere in the liquidation of the Whale Oil company, Social Media Consultants Limited.

It seems to have been orchestrated by Spring. I suspect that Taylor and Henry won’t be pleased to be caught up in this but the High Court says they signed the court application for “a number of orders against the respondent as liquidator of Social Media Consultants Limited, including an order that she resign from that office effective immediately”.

The application was discontinued, but costs have been awarded for what the court described as:

The proceedings were vexatious and improperly brought in the form they were commenced. They wrongly alleged fraud, criminal harassment and blackmail without any proper basis for such scandalous allegations.

In February 2019 the company running the Whale Oil blog site, Social Media Consultants Limited, was put into voluntary liquidation. At that time the sole director and shareholder was Juana Atkins, wife of Cameron Slater. At about the same time Slater declared himself bankrupt and has since then unsuccessfully tried to claim bankruptcy exempted him from ongoing defamation actions against him.

Whale Oil was moved to a new site, The BFD, which continues to operate. The new site is registered to Suva Media Company Limited, with Atkins sole director and shareholder. Howard Taylor was the founding director and shareholder but handed over to Atkins in March last year.

March 2019: Liquidated Whale Oil company owes more than half a million dollars

In August 2019: Liquidator message on Whale Oil

It is the liquidator’s opinion that the director of Social Media Consultants Limited, Juana Atkins or someone directed by her has illegally used the customer database for the benefit of another business entity.

The Six Monthly Liquidators Report for Social media Consultants Limited in October 2019 showed there were issues with assets related to the blog:

The Six Monthly Liquidators Report in June 2020 repeated the above statement and also included:

This has now been dealt with further in High Court.

On 13 November 2019 the applicants issued an originating application seeking a number of orders against the respondent as liquidator of Social Media Consultants Limited, including an order that she resign from that office effective immediately.

On 16 March 2020 the applicants discontinued the application. The respondent now seeks costs.

The proceedings were misconceived from the outset. The applicants are stated to be Frog Rock Trust and four named persons. The trustees of the Frog Rock Trust were not identified. It is now accepted that the Frog Rock Trust is not a legal entity.

It may not be a coincidence that a company FROG ROCK MANAGEMENT LIMITED has Atkins as the sole director and shareholder (Slater was also a shareholder up to 2005).

The four other named applicants all signed the application, which was stated to be made under s 284 of the Companies Act 1993 for urgent emergency orders.

The four are named as BRIAN HENRY, HOWARD TAYLOR, JUANA ATKINS and MARC SPRING.

Henry is well known as friend and lawyer of Winston Peters, a trustee of the NZ First Trust, and has represented Slater in defamation proceedings (not any more).

It seems remarkable that an experienced lawyer would sign an application with a lay litigant trying to represent him, this just doesn’t make sense to me.

The application came before Associate Judge Andrew on 13 December 2019. Mr Spring, one of the named applicants, sought to appear on behalf of all the applicants. The Judge recorded that Mr Spring had no authority to represent parties in this Court and it would be necessary for the applicants to obtain proper legal representation. The Judge also noted there were issues as to whether the respondent Ms Toon had been properly served with the proceedings. She had only obtained copies of the relevant documents by picking up copies from the Registry.

Spring has been associated with Slater and Dermot Nottingham in a number of failed legal actions, including against myself. He has not properly served proceedings before, including to me.

It’s basic that a lay litigant cannot represent others in court. Nottingham has had similar difficulties so Spring should be aware of that.

By the time the matter next came before Associate Judge Sargisson on 6 March 2020 Mr Nicholls had been instructed by the applicants. Mr Nicholls …had some difficulty to support the standing of the remaining applicants except for Ms Atkins (who was a director and shareholder of the company in liquidation). Judge Sargisson directed further steps be taken in relation to the standing of Mr Henry, Mr Taylor and Mr Spring if the matter was to be pursued. As noted, shortly afterwards, on 16 March, the proceeding was discontinued.

But costs were sought.

The application contained a number of extreme allegations against the
respondent.

That sounds typical of Spring, Slater, Nottingham et al.

The allegations were purportedly supported by affidavits from Mr Spring, Ms Atkins and Mr Cunliffe. The allegations are serious, particularly when made against a professional person such as Ms Toon acting in the course of her profession. If made publicly and found to be wrong they would support a claim in defamation. Allegations made in Court proceedings are privileged. With that privilege comes a responsibility to ensure that allegations of fraud or dishonest behaviour have a proper basis.

A solicitor associated with such pleadings or allegations has an additional
responsibility and can be the subject of disciplinary proceedings if the allegations are made without a substantive basis. Quite apart from the solicitor’s responsibility, a party who wrongfully makes such allegations is at risk of sanction by an adverse costs award.

Mr Nicholls submitted that the situation fundamentally arose from lay people attempting to avert what they honestly believed to be an injustice. The application was not intentionally vexatious.

My response based on past experience with Spring to “honestly believed to be an injustice” and “not intentionally vexatious” is ‘yeah right’.

I am satisfied that the criteria for indemnity costs is made out in this case.

The proceedings were vexatious and improperly brought in the form they were commenced. They wrongly alleged fraud, criminal harassment and blackmail without any proper basis for such scandalous allegations. Such serious allegations against a professional person in the role of liquidator required a serious and detailed response.

In bringing the proceedings the applicants acted improperly and unreasonably. To exacerbate matters, it appears the proceedings were brought with the intention of preventing Ms Toon from carrying out her proper functions as liquidator. The proceedings were hopeless and on the information before the Court would never have succeeded.

Not only hopeless. Spring, like his associate Nottingham, has a record of making accusations and claims in courts unsupported by evidence or facts.

So far Spring has managed to avoid being held to account (while Slater and Nottingham have both been convicted, bankrupted and having their reputations publicly damaged by their own actions.

But in this case Spring and Atkins have been to the fore in proceedings and there will be a financial cost.

The respondent is to have costs against the applicants Brian Henry, Howard Taylor, Juana Atkins and Marc Spring, jointly and severally, in the sum of $15,983.15.

Compared to costs incurred by Slater and Nottingham that isn’t a lot, but at least Spring and Atkins are being held to account for some of their actions. I can only guess why Spring has involved himself in this.

Atkins is deep in it due to taking on the legal and financial responsibility of Whale Oil. This may just be the start of the financial repercussions for her.

Judgment: FROG ROCK TRUST v TOON (as liquidator of Social Media Consultants Ltd) [2020] NZHC 1407 [22 June 2020]

Report into Covid privacy breach

The Heron report into the Covid privacy breach has been released.

Media release:

Findings of investigation into COVID-19 active cases privacy breach

Deputy State Services Commissioner Helene Quilter has today announced the findings of an investigation into a breach of privacy regarding sensitive personal information.

The investigation looked into who or what caused the disclosure of the information, and what might have prevented the information from being disclosed and what, if any, improvements might prevent that happening again in the future.

The deputy commissioner said the investigation, led by Mr Michael Heron, QC, found that sensitive personal information was passed to someone who was not authorised to see it, who then placed it in the public arena.

The breach happened after the then Acting Chief Executive of the Auckland Rescue Helicopter Trust, Ms Michelle Boag, passed on the information, without authorisation, to Mr Hamish Walker, MP. Mr Walker subsequently passed the information on to the media.The report findings around Ms Boag, the Auckland Rescue Helicopter Trust (ARHT) and Mr Walker have raised privacy issues which are outside the deputy commissioner’s jurisdiction. Ms Quilter has therefore referred the report to the Privacy Commissioner. In particular, she has referred the actions of Ms Boag, the ARHT and Mr Walker for specific attention. Mr Walker’s actions may fall outside the jurisdiction of the Privacy Commissioner but that is for him to determine.

The deputy commissioner has also shared the report with the Speaker of the House of Representatives and the Leader of the National Party, who are referred to in the report and who may have jurisdiction.

In relation to matters under the Commissioner’s jurisdiction, Ms Quilter said the policy around the security of personal information within the Ministry of Health could have been tighter and the agency should have reviewed this earlier.

The Director-General of Health, Dr Ashley Bloomfield, has assured the Commission that the agency is fixing the areas identified in the report for improvement.“The Ministry’s policy should have been reviewed when the context shifted and it was not,” said Ms Quilter.

“I am not going to criticise the Ministry of Health beyond that when lives have been saved as a result of their actions on the broader COVID-19 front.

“The information should not have been placed in the public arena. The Ministry of Health did not place it there.”

Report Executive Summary:

Ms Boag and Mr Walker were each responsible for the unauthorised disclosure of this sensitive personal information. Their motivations were political. Their actions were not justified or reasonable. Each acknowledged their error publicly and cooperated fully with this inquiry.

The Ministry of Health policy and process in notifying emergency services of active cases was a considered response to the pressures arising during the early stages of the crisis. Whether the policy was appropriate in the circumstances applicable in April 2020 will be the subject of further review by the Privacy Commissioner. The policy and process should have been reviewed once there were no longer cases in the community and the dissemination to emergency services of the personal information ought to have stopped. In any event, there ought to have been better protection over the personal information.

On Boag and Walker:

The statements of Ms Boag and Mr Walker indicate that the cause of the leak was, first and foremost, deliberate and politically motivated. Both have expressed their sincere regret at their poor judgement in distributing this sensitive personal information to others. I was contacted by a COVID-19 patient to convey their shock and dismay that such information would be passed around in this manner. The Ministry was aware of the risks of unauthorised disclosure of such information and the harm that could be caused. Given its sensitivity, disclosure of such personal information requires clear legal authority and careful judgement.

The Privacy Act is unlikely to apply to Mr Walker in these circumstances. Section 2 of the Act states that an “agency… does not include… a member of Parliament in his or her official capacity.” Mr Walker considers he received and disseminated the information in his capacity as an MP. He says and I accept that he sought to hold the Government to account with respect to the countries from which new cases were originating and with respect to the lack of security around personal information. Mr Walker accepted that the spreadsheet did not assist to prove the first point. In my view, however, Mr Walker was acting in his official capacity.

Ms Boag’s actions in disseminating the personal information would not have been compliant with ARHT policy.

The State Services Commissioner could consider a formal referral of Ms Boag and the ARHT to the Privacy Commissioner, who is the appropriate statutory body in their case. The Privacy Commissioner is, however, already reviewing the question of whether the Ministry policy was appropriate and can investigate this matter with or without a referral or complaint.

On Michael Woodhouse:

Ms Boag had earlier provided similar personal information (but different spreadsheets) to Michael Woodhouse, MP. I received information relating to those other occasions from Ms Boag and proactively from Mr Woodhouse. Mr Woodhouse advised he did not forward such information on and has now deleted it. I considered whether I should pursue the deletion further with Mr Woodhouse, but ultimately because the information was similar in nature and it was not central to my inquiry, I determined it was not necessary to pursue it. I accept Mr Woodhouse deleted the information. Ideally, he would have counselled Ms Boag not to disclose such information and/or alerted the Ministry or Minister.

Full report: