Stephen Franks is a nationally known lawyer, expert in company and securities law, and law reform.
After early general practice he spent two years in the Office of the Ombudsmen then joined Chapman Tripp in 1979, became a partner in 1981 and served as Chairman of the firm’s National Board. He had six years in Parliament, then four back as a consultant with Chapman Tripp before establishing in July 2009 a specialty law firm, Franks & Ogilvie (Commercial and Public Law Limited) to focus on the intersection of government and commerce.
Stephen ran a vigorous campaign for election in 2008 as the National Party candidate for Wellington Central but the seat was retained by Labour.
He’s been a member of the Securities Commission, the Council of the IOD, and the NZ Stock Exchange’s Market Surveillance Panel. In 2009/10 he served on the Minister of Energy’s expert advisory group on the electricity market structure.
He advised the New Zealand Dairy Board on the route to the creation of Fonterra, the Ministry of Commerce in drafting the Electricity Industry Reform Act, Telecom New Zealand during its privatisation and initial international public offering and the World Bank on legal aspects of corporatisation and privatisation.
Other current interests include a 2,000ha manuka and grazing block, mountain biking, and kayaking. Stephen is married to Catharine and they have four young adult children.
Director Stephen Franks blogged on two recent judgments from the High Court - the decisions in Christiansen v Director General of Health, and Electrix Ltd v The Fletcher Construction Company Ltd (No. 2).
"Everyone will have heard about the welcome judgment of Walker J on 4 May in Christiansen v DG of Health. But it is still worth reading. Just to see an instance of judicial protection against callous exploitation of special emergency power.
It is chilling too, being reminded of the credulity of the world’s chattering classes, deeply impressed by political exhortations to be kind. The respondent Director General has almost every day recently recited the “be kind” mantra of the PM, his de facto Minister. But clearly from the facts disclosed in the case the Ministry has treated the instruction for what it has proved to be – an empty political slogan. The Ministry seems to have been under neither constitutionally intended democratic supervision, nor confident and diligent political leadership. A competent Minister at the top would have intervened to apply the experience of a career outside politics. A half way competent and well lead Ministerial staff (including the office of the Prime Minister) would have recognised the signs of high-handed indifference in the correspondence. They would have invited a Prime Minister with intellectual confidence to inject common sense to what was plainly a bureaucratic lockstep. And that is before anyone even talks about “kindness”.
We’ve elected politicians without enough prior life tests and career leadership experience to exercise democratic control. Without authoritative experienced oversight, some official cultures will inevitably become immune to their own convenient cruelty. “Be kind” means nothing without the leadership diligence that makes it practical, everyday, and integrated among all the other demands of hard decision-making.
Cases like this should encourage judges to intervene more in official second-guessing. I’m aware of the risks of judicial activism. But rubber stamp judging would be a worse danger.
I will blog separately on the just concluded High Court hearing of COLFO v The Minister of Police, where the court heard about Police engagement in lawmaking, and Ministerial exercise of dangerously wide powers conferred by Parliament in a state of high emergency excitement.
But for another warming example of good judging to make the law straightforward, read Electrix Ltd v The Fletcher Construction Company Ltd (no 2) [2020] NZHC 918. This judgment by Matthew Palmer J was delivered today (6 May).
Despite being long, it reaches an admirably simple conclusion. It applies and clarifies a rule that is precisely what I think business people would expect.
I’d summarise it to a client as – “If you can’t agree a contract, but start work nevertheless and carry on while trying to agree, if you don’t reach agreement the courts will enforce what they decide would have been the fair price. “
The judgment applies the law of contract and the law of “quantum meruit” to a dispute between a head contractor and an electrical subcontractor. The summary at the beginning of the judgment read:
“Large construction projects benefit from a head contractor and electrical subcontractor concluding a contract and formulating the detailed design for electrical works before undertaking them. That did not happen in the Christchurch Justice and Emergency Services Precinct project. In October 2014, the Fletcher Construction Company Ltd confirmed Electrix Ltd as its preferred electrical sub-contractor. Fletcher Construction requested and Electrix provided electrical services work. Fletcher Construction paid Electrix $21.6 million (GST excl) for the work, on the basis of successive letters of intent. But the parties never managed to agree formally on a contract and never completed the detailed design of the electrical works. The electrical works suffered from poor management, delays, disruption and constant time pressure. Now, Electrix sues Fletcher Construction for some $7 million plus interest. Fletcher Construction counterclaims, saying it paid Electrix some $7 million too much, whether there was a contract or not. The proceeding was the subject of a four-week trial in October 2019.
I find there was no contract between Electrix and Fletcher Construction. The parties did not intend to be immediately bound by essential terms at any point. They expected they would be able to reach agreement on a contract, but they never did. Yet Electrix provided the electrical works services requested by Fletcher Construction. Fletcher Construction must pay the reasonable cost of the services, the “amount deserved” or “quantum meruit”. The New Zealand law of non-contractual quantum meruit is not exclusively tethered to the doctrine of unjust enrichment. Its objectives are not confined only to dispossessing those unjustly enriched but can extend to providing redress for those who have been unjustly impoverished. The market value of the services that could have been used to undertake the works is relevant. But the reasonable cost of the services actually provided is the better starting point, reflecting the market value of the particular inputs used in the provision of those services at the relevant time and in the relevant circumstances. I rely primarily on the evidence of Electrix’s expert witness, Mrs Catherine Williams. I find Fletcher Construction must pay Electrix $7,473,207 (GST excl) plus simple interest of five per cent per annum.”
I think the judgment shows the benefits judging with deep understanding of economics and incentives, as well as the basic purpose of common law judging. That is not to “be kind” or to rearrange outcomes to conform to your virtuous assessment of what the parties ought to have agreed. That can often be close to what they deserve, and when there is no contract the parties have effectively invited the court to decide on what each deserves.
But the key and most difficult job of judges is not to decide who ought to win from the unfortunates before them. it is to extract and apply general principles that allow other people, in future, to understand from the precedent, how the law will treat them in similar circumstances.
To read more from Stephen visit his blog
Director Stephen Franks writes on his blog about the unusual situation where some Councillors have tried to put forward voluntary reductions in their salary in response to Covid-19 but have been thwarted by Remuneration Authority. Stephen argues that actually there is a legislative ability for this to occur. To read more, visit Stephen's blog post here.
The first lockdown Order on 24 March, was sweeping and lawful. It restricted congregation in outdoor spaces and the operation of businesses. But in the immediate (conflicting) explanations “essentiality”started to dominate as the key test and purpose, instead of safety risk – the likelihood of assisting contagion. Leaders should get some slack –oversimplification is understandable in an emergency.
But they’ve had time to refine their rules. In the updated Order of 3 April, they doubled down on some restrictions of least benefit for cost. In consequence, in our firm’s legal opinion, important aspects of that 3 April Order are ultra vires – outside the authority of the statutes from which they claim authority.
Bluntly, that is because the continuing prohibitions are avoidably costly and more than is necessary to confine infection. Particularly as applied to activities that are outdoors, or solo, and can be conducted safely within distancing and contact disciplines.
We first formed that view when researching the lawfulness of some Police pronouncements for a client. We (and the client) were anxious to support the scheme. But also keen to get official attention on the collaborative ways that successful countries like South Korea and Taiwan and Singapore had been able to maintain substantial production through their crisis responses.
Over the weekend we wrote to the Prime Minister asking for explanation, and outlining our concerns.
Our purpose in writing is not to disrupt, or distract or to undermine necessary community solidarity. Instead we are concerned that unless the government makes it plain that it will quickly progress phased and selective modification of the regime for essential businesses, the current community consensus will unravel. We have seen promising signs with the relaxation for smaller food manufacturers. But now we need government to invite businesses to come up with their next phase plans. No government will have the capacity to micro-manage and initiate all the design and planning now overdue, and essential.
At present, from what we are hearing, too many businesses could be optimistic about a speedy return to normal. They are pinning their hopes on Alert 4 only lasting another fortnight. Current good trends in infection reports mean it could end on time.But even if it does, what follows will not be a return to how things were before.
Singapore’s move to lockdown this week is significant. They were an early success, and still are, considering that their position puts them into a different universe of risk, from New Zealand.
We are advising clients to take the initiative. The government may move back and forward between levels for a time (and in future pandemics). In the case of COVID -19 New Zealand may be left uniquely vulnerable, paradoxically because of our success.Other countries will have herd immunity, albeit at great cost. We may have little immunity.
Businesses should be able to go to a receptive government showing how they will manage infection risks after the first transition. And to demand release from inefficient and pointless restrictions as soon as they have that plan – not on an arbitrary date after incalculable greater losses of livelihoods.
Read our letter to the Prime Minister here
Contact Stephen or Brigitte if you would like further information including assistance in getting from anti-contagion plan to release to work.
