Aimee Dartnall

Senior Solicitor
Aimee Dartnall

Aimee has a Bachelor of Law, and a Bachelor of Arts, majoring in politics, from the University of Otago. She worked in local government advising on alcohol regulation, before joining Franks Ogilvie in early 2018.

Aimee has expertise in local government regulations, with specialist knowledge of the Sale and Supply of Alcohol Act 2012 as the former Secretary to District Licensing Committees in Wellington.

As a litigator, Aimee has appeared in a number of High Court cases, primarily for judicial review, but also for claims under the Marine and Coastal Area (Takutai Moana) Act 2011, trusts and Resource Management Act 1991 cases. In addition, she has appeared before the District Licensing Committee, the Environment Court and the Court of Appeal.

She is also experienced in public and administrative law, Incorporated Societies administration and governance (constitution amendments, creating disciplinary procedures), and company governance (creating procurement policies, funding policies, standard contract templates) and admin (advising on reporting requirements).

Aimee
in the news
November 26, 2021
Summary

Judge BA Gibson dismissed charges laid by the Commerce Commission against Bunnings for making false or misleading representations about its lowest price guarantees.

Background

The Commerce Commission laid 38 charges against Bunnings for making false or misleading representations between 17 June 2014 and 29 February 2016. The charges were based on adverts and uniform signage saying things like "lowest prices are just the beginning", "lowest prices guaranteed", "nobody beats our prices", and included the ‘lowest price guarantee’ "if you happen to find a lower price on the same stocked item, we'll beat it by15%".

The Commission claimed the public were liable to be misled into thinking Bunnings offered the lowest prices in the market on all items always, when this was not true on many occasions.

The Case

The words 'liable to mislead the public' are not defined in the Fair Trading Act but are determined by an analysis of the facts and circumstances of the particular case. These were criminal charges and the Commission had the burden of proving the statements were liable to mislead the public beyond reasonable doubt. However, it did not have to prove that anyone was actually misled.

What representations were made?

The Judge found that tagline phrases such as "lowest prices are just the beginning "are simply holistic statements of Bunnings' position in market. They are not representations.

The Judge also rejected the Commerce Commission argument that a significant number of Bunnings’ customers would have considered Bunnings offered the lowest price on each individual product in all its stores at all times, with rare exceptions. Instead, he confirmed that consumers can be trusted to use their common sense. Most would be well aware of the large number of products stores like Bunnings and Mitre10 carry and the need for Bunnings to have time to adjust its prices to react to competitors' movements.

The Judge considered the advertising material conveyed a representation that, if a consumer finds a lower priced item in the same range another store, Bunnings will honour its guarantee to have the lowest price by matching it and discounting it by 15%.  This is a clear signal to customers that not all products at Bunnings will be the lowest priced in the market, otherwise there would be no need for this guarantee.

 

Was the representation misleading?

A degree of "robust realism" is needed when assessing whether promotional material is false or misleading. In this case, the Judge found the advertising would be unlikely to mislead consumers unless the Commission can establish a pattern of prices higher than Bunnings' competitors that is unreasonable in all the circumstances.

Both sides presented extensive expert evidence. In the end, the Judge concluded that there was no reliable evidence about Bunnings' prices across its whole range, including on the almost 70% of products available at competing outlets.

There were a number of deficiencies in the price comparison data collected by various agents for both sides. Some were designed to be used for every-day price setting rather than to gather accurate statistical data, and many did not accurately represent the full range of non-exclusory products. Overall, the Judge found an acceptable range where Bunnings was not the lowest or same priced item was approximately 15%. These items are effectively covered by the lowest price guarantee, which, when activated, means Bunnings always will have the cheapest prices.

The lowest price guarantee would also alert customers to the fact that not every item at Bunnings will have the lowest price, but it offered a remedy to achieve this.

Overall, the Judge concluded there was no hard proof of what customers would believe the advertising material to mean, or that they were actually mislead, and there was no evidence of customer complaints.

 

Result

The Commerce Commission could not prove the charges beyond reasonable doubt, so the case was dismissed.

November 3, 2021
Summary

The Court of Appeal dismissed Mr Smith’s appeal and allowed the respondents’ cross-appeal, with the effect of striking out Mr Smith’s claims for breaches of tort law relating to climate change.

Background

Mr Smith is an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesperson for Iwi Chairs Forum. He alleged greenhouse gases released by the respondents contributed and will continue to contribute to dangerous anthropogenic climate change, which will disproportionately affect poor and minority communities.

He filed a claim alleging public nuisance, negligence and a new tort of breach of duty against the respondents for their release of greenhouse gas emissions. He asked the court to issue declarations that the respondents have each unlawfully caused or contributed to the effects of climate change or breached duties owed to Mr Smith, as well as injunctions requiring the respondents to produce or cause zero net emissions by 2030.

The High Court struck out the claims for public nuisance and negligence but allowed the claim for a new tort of breach of duty to continue. The parties appealed these decisions to the Court of Appeal.

The Case

Should the Court recognise a new tort?

The common law changes incrementally over time and new torts can be recognised as modern expressions of existing torts. However, the Court considered the proposed new tort would represent a major departure from fundamental principles of common law and was not similar enough to negligence to be recognised.

 

No other tort in New Zealand, or anywhere in the world, is recognised where the entire population is both responsible for causing harm and a victim of it. Mr Smith could not point to any principled reason for singling out the respondents and the fact they were profit-making entities did not change the nature of the alleged wrong.

 

The alleged wrong was described in terms of net emissions, meaning the Court was asked to order the respondents to offset their emissions, not stop producing them at all. This does not sit well with tort law, which is about stopping unlawful actions.

 

Overall, the Court found the common law was not an appropriate or adequate vehicle for dealing with climate change, which they state requires a sophisticated regulatory response at a national and international level. No remedies in tort would meaningfully address the harm and action could only be taken on an arbitrary case-by-case basis. A shared common approach is also more consistent with kaitiakitanga.

 

Mr Smith's other claims

Mr Smith appealed the High Court’s decision to strike out his claims for nuisance and negligence. The Court of Appeal considered climate change harms could be considered a public nuisance as they breach the common law right to public enjoyment. However, Mr Smith could not point to any special damage he suffered that separated him from the public generally. In addition, any harm suffered was consequential and not the direct result of the respondents’ actions.

The Court also found that, although it could not rule out the foreseeability of harm caused by the respondents’ emissions, there was not a close enough connection between Mr Smith and the respondents to give rise to a duty at common law. Nor was there any way of readily identifying all contributors and all victims of the harm.

Result

The claim was struck out in its entirety. However, because Mr Smith's concerns were genuine public interest ones, the court declined to order costs.

If you would like to understand more about this case, please contact Senior Solicitor, Aimee Dartnall.

October 12, 2021

The issues between Mr Vincent Middeldorp and Avondale Jockey Club resulted in five judgments over a two and a half year period.

 

Mr Middeldorp sought judicial review of the Club’s decisions to suspend him from the committee, to decline 14 membership applications, and for breaching the Club's rules in relation to elections to the committee. Two judgments deal with these substantive issues and there are a further three judgments dealing with costs, including one from the Supreme Court.

 

Substantive case: Middeldorp v Avondale Jockey Club Incorporated [2020] NZCA 13

 

Summary

Mr Middeldorp claimed the Club made three reviewable errors by suspending him from the committee, declining 14membership applications and not following the Club rules for committee elections. The High Court found the committee did not have the power to suspend Mr Middeldorp from the committee, but otherwise dismissed the application and declined to grant relief.

 

Mr Middeldorp appealed the decision to the Court of Appeal.

 

Background

Mr Middeldorp has been a member of the Club since 1982 and a committee member since 2013. He strongly objected to a proposal to close its training track which was supported by the majority of the committee and Club officers.

 

The Club had been in financial strife since the 1990s and is on the brink of closure. The Club President claims Mr Middeldorp is 'making trouble' by refusing to accept and undermining decisions of the majority of the committee. Mr Middeldorp claims he always acted with the Club's best interests in mind.

 

The Case

Incorporated societies are amenable to judicial review but courts are usually reluctant to intervene in their internal affairs. In this circumstance, both the High Court and the Court of Appeal agreed they should consider the issues.

 

Power to suspend committee members

The Court of Appeal upheld the High Court's ruling that it was not appropriate to read into the Club's rules a power to suspend committee members. The general provision allowing the committee to determine cases not provided for in the rules did not extend to a power as significant as the power to suspend its members.

 

Membership applications

The Committee rejected 14 applications that it considered were made by associates of Mr Middeldorp to support his objections to committee decisions to close training operations, rather than genuine prospective members. The Court of Appeal agreed with the High Court finding that these concerns were valid.

 

Election of Committee members

Both parties accepted the committee had between five and eight members, instead of the 10 members required by the Club rules, throughout the relevant period. This had been the case since 2014 and the committee adopted a pragmatic approach to retirement and (re-)appointment over the years, including when Mr Middeldorp retired and was re-elected in 2015. The High Court accepted the Club's submission that there is an implied term in the Club rules allowing for adaptations where there are fewer than 10 members.

 

The Court of Appeal agreed the committee acted lawfully, but for different reasons. It found there was nothing in the Club rules to prevent the committee from operating with fewer than 10 members. Provided that a quorum of five is present, the committee can meet and make decisions. An implied term was not necessary.

 

Approach to relief

The High Court judge adopted a nuanced approach to relief to justify refusal. The judge did not think Mr Middeldorp has been seriously prejudiced by the decision, which had already been given effect to and could not be reversed. Mr Middeldorp also acted against the Club’s best interest in the lead up to suspension and delayed in filing proceedings.

 

The Court of Appeal found the High Court was wrong to refuse a declaration. Declarations are different to other remedies and will not normally be refused because of a delay in filing. They provide vindication and deter future breaches and are useful. The delay was not material and did not prejudice the Club. The defect was fundamental and relief is justified.

 

However, the Court of Appeal did not consider the terms of the declaration sought were appropriate. The declaration should not extend to the validity of committee decisions made during the suspension period and should be limited to a declaration that the decisions to suspend were not authorised by the Club Rules.

 

Result

The Court of Appeal overturned the decision to refuse relief, but the declaration was more limited that the one sought. It upheld the High Court's decision to dismiss the two remaining challenges. Overall, no party was a clear winner or loser and the Court of Appeal decided not to order costs.

 

Costs Proceedings – Middeldorp v Avondale Jockey Club Incorporated [2021] NZSC 117

 

Background

After the first hearing, the High Court awarded the Club scale costs with a 15% reduction to account for Mr Middeldorp's partial success, which added to $18,955. Following the Court of Appeal's judgment, Mr Middeldorp asked the High Court to reevaluate the costs order in light of the appeal.

 

The Cases

In this second costs judgment, the High Court considered the Club to be the overall 'winner' of the appeal. Mr Middeldorp only succeeded on one ground of appeal (the declaration), and even then in more limited terms than he originally sought. To account for this, the High Court adjusted the reduction in scale costs to 25%, reducing the costs payable to $16,725.

 

Mr Middeldorp appealed the second costs decision to the Court of Appeal. Appeal courts will not usually interfere with the costs awarded by a trial judge unless the judge was wrong in principle or considered the wrong factors. The Court of Appeal endorsed the High Court's approach to costs and dismissed the appeal. The Club was awarded further costs for the appeal on a standard band A basis, plus disbursements.

 

Mr Middeldorp then applied for leave to appeal the costs decision to the Supreme Court. He argued that the appeal would raise matters of general or public importance and commercial significance which would have a significant impact on the costs regime, and that the decision to award costs was a substantial miscarriage of justice in circumstances where he successfully obtained a declaration. The Supreme Court rejected these arguments and dismissed the application, awarding the Club a further $2,500 in costs.

 

Result
The Court of Appeal and Supreme Court upheld the High Court’s second costs decision. Mr Middeldorp was ordered to pay further costs in respect of each failed appeal.

 

The Incorporated Societies Bill is currently being considered by the Select Committee. Franks Ogilvie made a submission against the Bill because it would make life much harder for committee members of Incorporated Societies. It will encourage and enable more court proceedings from disaffected members that can drag societies through court for years on end.

If you would like to understand more about Incorporated Societies, please contact Senior Solicitor Aimee Dartnall.

Give the team a call

We’re likely to know who makes the decisions, why, and how politics or the law can compel you or trip you up.
If it takes less than 20 minutes we rarely charge.
There are not many specialist public lawyers. Even fewer have commercial experience. We start and end with commercial interests at heart.