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
July 20, 2021

Summary

Imran Kamal sought judicial review of the decision by the Restructuring Insolvency and Turnaround Association of New Zealand Incorporated (RITANZ) to decline his application for membership because he did not meet the "good character" requirement.

 

Background

Mr Kamal ultimately wanted to apply to the New Zealand Institute of Chartered Accountants (NZICA) for a licence to practice as an insolvency practitioner, which is now under the Insolvency Practitioners Regulation Act 2019.Registration with RITANZ was meant to be the first step towards registration.  

 

The Insolvency Act was introduced to lift the level of professionalism of practitioners. In order to be a licensed insolvency practitioner, NZICA must be satisfied that the applicant meets the legislative criteria, including that they are fit and proper to hold a licence. As Mr Kamal was not a member of NZICA, he also needed to be a member of a recognised body like RITANZ, which would confirm his good character, before he could apply for a licence.

 

The case

Mr Kamal argued that the RITANZ decision should have been forward-looking and should have considered the ability of NZICA to impose bespoke conditions on his practising licence. He also claimed the decision making process was flawed.

 

 RITANZ has a wide discretion to decide whether an applicant meets their membership criteria and does not have to give reasons for its decision not to admit members. However, it still has to follow basic principles of natural justice.

 

The good character test

 

Mr Kamal was a chartered accountant and member of NZICA for 11 years until he resigned in 2012. During that time, NZICA investigated nine complaints against Mr Kamal, including for lack of technical competence and breach of the code of ethics. Three of those led to sanctions on his disciplinary record.

 

In2013, he was convicted of six offences under the Tax Administration Act of providing false and misleading information with the intent to unlawfully obtain a tax refund between March 2006 and March 2007. NZCIA used its power to investigate charges against former members and found that, had Mr Kamal not voluntarily resigned, it would have removed his name from the NZCIA register.

 

Mr Kamal was also ordered to pay costs personally for his actions as a liquidator in 2015 when he failed to call a creditors' meeting, as required by the statute. He also at times advertised himself as being a chartered accountant and his company as being a registered liquidator and member of RITANZ, when neither were true.

 

In2020, Mr Kamal attempted to enter into an arrangement with a licensed practitioner that would give him various rights and powers which would circumvent the effect of the Act. Between December 2017 and May 2020, he breached the reporting deadlines in the Companies Act 35 times.

 

The court rejected Mr Kamal's submission that RITANZ could find that a person was fit and proper only by imposing certain conditions. The Act sets a separate requirement to be satisfied that a person is fit and proper in section 57.  

 

This is considered independently of the written agreement with NZICA in section 58which can include conditions. The section 58 agreements are intended to bring anon-NZICA member within the ambit of NZICA's Code of Ethics and disciplinary process. It is not intended to be part of the minimum gateway test in section57, which includes the fit and proper requirement. The court found that applicants are either fit and proper, or they are not. This is consistent with the approach to fit and proper tests in other licensing regimes like real estate.

 

The court confirmed that assessments of good character are forward-looking and that past convictions are not determinative of good character now. Nor is a good character assessment intended to act as a punishment for past bad behaviour. The court found that RITANZ was wrong not to take account of the mitigating factors outlined in the 2013 sentencing decision which may demonstrate a reduced risk going forward. Similarly, RITANZ should have taken account of Mr Kamal's acknowledgement that he made a mistake in failing to call a creditors' meeting in 2015, and of his responses to NZICA's decision to refuse his membership in 2020 as opposed to just the decision itself.

 

The court found that RITANZ was unfair and breached natural justice by finding that Mr Kamal would not have sought regulatory approval for the proposed agreement in 2020 without asking him to respond to that allegation directly.

 

However, the court found that the decision was not unreasonable because it was not possible to issue conditions solely for the purpose of helping someone meet the fit and proper test.

 

Result

The court issued a declaration regarding the errors identified in the decision. However, it found that NZICA could never grant Mr Kamal the licence he seeks because, as he accepted, did not meet the NZICA fit and proper test. For the same reasons, Mr Kamal could not meet the good character test for RITANZ membership. Because of this, the court declined to quash the decision.

 

For more information on how to challenge a decision like this, contact Senior Solicitor Aimee Dartnall.

July 13, 2021

Background

The group Speak Up For Women (‘SUFW’) opposes the Births, Deaths, Marriages, and Relationships Registration Bill (the bill that would allow people to change their sex on their birth certificate), saying it risks unintended consequences for women's sex-based rights. SUFW are on a speaking tour to discuss the Bill and made bookings at Council venues around the country for these events.

SUFW has been labelled as ‘transphobic’ and a ‘hate group’ by those who oppose their views.

On about 1 June 2021, SUFW arranged with Palmerston North City Library to book a venue on 25 June.  On 17 June, the Library told SUFW it was cancelling the talk and would only host a debate on the Bill where all views would be represented.

On 21 June, SUFW filed urgent proceedings in the High Court to ensure the event could go ahead as planned.

The Case

SUFW told the Library that the event was to discuss their views on the Bill at the time they made the booking. The next day, SUFW sent through its promotional material and discussed what had happened at a similar event in Christchurch the previous week.

On 10 and 14 June, the Library told SUFW it was in the process of advertising the event. However, after receiving community feedback, the Library cancelled the event and said it would replace it with a facilitated debate that enables views from all sides to be heard on the Bill and would provide a "platform for informed and balanced dialogue".

There was no suggestion that SUFW wished to promote any alternative views on the legislation, although there would be an opportunity for discussion with anyone who attended.

The Court applied the recent CA judgment in Moncrief-Spittle v Regional Facilities Auckland [2021] NZCA 142 which dealt with similar facts. Nation J concluded that the Library’s decision to cancel the event was reviewable and engaged the rights to freedom of expression and peaceful assembly under New Zealand Bill of Rights Act 1990.

Nation J found "There is sufficient evidence before me at this stage to be clear that SUFW cannot rationally be described as a "hate group"". He found that this cannot affect whether SUFW should be allowed to exercise its rights to free speech and freedom of assembly.

Nation J found the Council's decision was a "significant failure to recognise SUFW's right to freedom of speech and freedom of peaceful assembly." SUFW did not in any way mislead the Library as to the nature of the event or the particular views they wished to discuss. Library staff had no safety concerns for themselves or anyone else and there was no evidence of a threatened protest.

However, the Council's decision put conditions on the event which insisted that SUFW could only present their views on the Bill if they were countered by speakers with an opposing view.

Result

The High Court found the cancellation decision was not a rational and reasonable limitation on rights and ordered that the event proceed, which is reportedly did, without protest.

Franks Ogilvie were instructing solicitors for Speak Up For Women on this matter.

Update: Following the Whitmore decision, Auckland Council settled with SUFW and their event went ahead in the Council Chamber and Dunedin City Council confirmed SUFW's booking. The Wellington City Council also accepted SUFW's booking at the Michael Fowler Centre.

June 23, 2021

Summary

Tauranga City Council granted Transpower consent to relocate a set of controversially placed power lines right next to the entrance to the Maungatapu Marae. This was upheld in the Environment Court. The Tauranga Environmental Protection Society and others appealed the decision to the High Court, arguing that the Environment Court was wrong to ignore Ngāti Hē’s evidence that the adverse cultural effects of the proposal would be worse than the status quo.

Palmer J in the High Court upheld the appeal, finding that there were material errors of law.

Background

Ngāti Hē is a hapū of Ngāi Te Rangi and has a longstanding grievance about the location of transmission lines across the bay between the Maungatapu and Matapihi Peninsulas, which currently cross over Ngāti Hē land. The Deed of Settlement between Ngāi Te Rangi and the Crown acknowledged that the infrastructure networks in the area have had “enduring negative effects on the lands, resources and cultural identify of Ngāi Te Rangi".

Transpower proposed to relocate the transmission lines right next to the entrance of the Maungatapu Marae. Ngāti Hē supported the idea of relocation but regarded the proposal as a ‘cure worse than the disease’ and gave evidence that they would prefer to maintain the status quo and all its problems until a suitable solution was found.

 

The Case

Evidence of adverse effects

Palmer J agreed the Environment Court was right to consider Transpower’s proposal in its entirety (i.e. as a single proposal for removal of the lines from their current location and relocation to near the Marae entrance) but said it was wrong to consider that the effects of the relocation to the entrance of the Marae would be minimal.

Importantly, Palmer J ruled that, where Ngāti Hē gave genuine evidence of adverse cultural effects, it was not open to the Environment Court to find otherwise, particularly where this evidence is supported by the relevant policy and planning documents and the Deed of Settlement. Its findings had to reflect the evidence before it.

Ultimate decisions of fact (here, that the benefits of relocation would outweigh the costs) are not often overturned on appeal. However, Palmer J considered this was one of those rare cases where the finding is “so insupportable – so clearly untenable – as to amount to an error of law because proper application of the law requires a different answer.”

The effect of the Environment Court’s decision was to substitute its view for Ngāti Hē’s own view on how the proposal affected them. Palmer J found that “Ngāti Hē’s view is determinative of those findings” and finding otherwise “is inconsistent with Ngāti Hē’s rangatiratanga, guaranteed to them by art 2 of the Treaty of Waitangi, which the Court was bound to take into account by s 8 of the RMA”.

Approach to planning documents

Palmer J also found that the Environment Court applied the wrong approach to the relevant RMA planning documents. He found the Court had applied an “overall judgment” approach to the planning documents, which the Supreme Court has previously discarded as incorrect.

Instead of considering what would promote overall sustainable management of the environment, the Environment Court should have carefully interpreted and applied the relevant planning instruments. These planning instruments already give effect to and reconcile higher-order planning documents, like the New Zealand Coastal Policy Statement.

These planning documents imposed cultural bottom lines that require the practicability, possibility, or practicality of alternatives to be assessed.

The Environment Court considered that alternatives favoured by Ngāti Hē, while technically feasible, would “entail costs of an order of magnitude greater” than the proposal, but failed to consider whether these were practicable, possible or practical.

Result

Palmer J quashed the Environment Court’s decision and sent it back for further consideration in light of his judgment. In particular, the Environment Court has been asked to consider whether alternatives to the proposal are practicable, possible or practical before making a new decision.

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