Yana joined Franks Ogilvie as Senior Solicitor in 2023, having a diverse legal background in multiple jurisdictions. She specialized in insolvency law and litigation overseas. Yana understands the complexities and challenges associated with insolvency cases, where financial matters and legal proceedings intertwine. Subsequently, she pursued her education at Victoria University of Wellington, earning a Master's degree in Law along with completing the necessary LLB subjects for admission.
With over 10 years of experience in New Zealand, Yana’s expertise encompasses a wide range of immigration and public law matters.
Yana's approach is rooted in a deep commitment to her clients' success. She takes the time to understand their unique circumstances, goals, and concerns, ensuring that her guidance and strategies align with their individual needs.
Reay v Attorney-General was a landmark case that captured the attention of the engineering and legal community in New Zealand. The saga surrounding the Canterbury Television (“CTV”) building's tragic collapse in the 2011 Christchurch earthquake revealed complex layers of accountability, professional ethics, and regulatory oversight which had to be challenged and ultimately improved.
Designed in 1986 by Dr Alan Reay's engineering firm, the CTV building's failure in the 2011 Christchurch earthquake resulted in loss of life. Reay, the firm's sole principal and a seasoned engineer, faced scrutiny over the role his oversight played in the disaster. Allegations surfaced suggesting that much of the building's structural design was undertaken by an employee, David Harding, who was reportedly lacking in the necessary experience for critical work on multi-storey buildings.
In the aftermath, the spotlight turned not only to the building’s defective structural design but also to the professional standards governing the engineering sector. Both, Reay and Harding were members of the Institution of Professional Engineers New Zealand (“IPENZ”), currently Engineering New Zealand, at the time the building was designed. In December 2012 a complaint against Reay was lodged by fellow IPENZ member, prompting an investigation by the institution.
In a bid to stop the ongoing investigation, Reay resigned from IPENZ in February 2014, aiming to stop the finalisation of the Investigating Committee's recommendations. This resignation led to the eventual dismissal of the complaint against him due to a procedural interpretation that IPENZ lacked the jurisdiction to continue disciplinary actions against former members.
Harding sought judicial review of IPENZ's decision to proceed with disciplinary actions against him, a plea that was dismissed by Justice Mander in September 2014.
Following this decision, the case took another turn in 2018 when the Attorney-General intervened, questioning IPENZ's decision to not revisit Reay's case in light of the judicial stance on Harding's proceedings. IPENZ declined to proceed, reasoning that it had no right to investigate a former member. The Attorney-General then moved for judicial review, which was granted by the High Court in the judgment under appeal. The Judge found that the Attorney-General had standing and that IPENZ had dismissed the complaint through an error of law. Reay appealed against the High Court’s decision.
The question on the appeal was whether IPENZ, an incorporated society, may continue disciplinary proceedings against a member who resigned before a complaint against him was determined.
Reay argued that IPENZ Rules were a private contract between IPENZ and its members and should be interpreted accordingly. It was submitted that the rules only applied to former members if this was explicitly specified within the rules.
The court rejected this argument, clarifying that an incorporated society's rules differ from other contracts in that they customarily incorporate an express objective, which readily permits the court to adopt a purposive interpretation to give effect to the objective. It was stressed that the public interest in the maintenance of professional standards,and IPENZ's interest in its standing and reputation, were relevant considerations, both textually and as context, when interpreting the Rules.
It was concluded that the meaning of a “member” included a former member as IPENZ had an interest in being seen to maintain its standards.The membership obligations continued past cessation of the membership.
The appeal was dismissed, with Collins J finding in favour of the Attorney-General, stressing a significant error of law in IPENZ's dismissal of the complaint against Reay. The judgment clarified that a "Member included individuals who resigned before disciplinary proceedings were concluded (or started), thus allowing regulatory bodies to review members’ conduct at any time”.
This case highlighted the complexities involved in professional disciplinary proceedings, especially when they intersect with public safety and accountability issues. It underscored the importance of professional bodies in regulating and holding their members accountable, even after resignation, to uphold standards of practice and public trust in the profession.
To understand more about this issue, please contact Director Brigitte Morten
The plaintiffs are a group of minor political parties - NZ Outdoors & Freedom Party, Vision NZ, Freedoms New Zealand and the Aotearoa Legalise Cannabis Party. They unsuccessfully challenged the Electoral Commission’s decision to allocate broadcasting time, which they believed was unfairly distributed between the larger and smaller parties.
Under part 6 of the Broadcasting Act 1989 (“Act”) any registered political party is eligible to receive an allocation of broadcasting funding, in advance of a General Election. Allocation decisions are made by the Electoral Commission (“Commission”), by reference to a list of criteria set out in s 78(2) of the Act.
The status quo and the tension within the allocation criteria lie at the heart of this case. The applicants are all small political parties who argue that the larger, established parties receive too much of the overall allocation amount.
The combined allocations the plaintiffs received ahead of the 2023 General Election constituted 4.8 per cent of the total funding pool, whereas the combined allocation to Labour and National was 55 per cent. The five parties currently represented in Parliament received 76.8 per cent of the total pool.
On 17 October 2022, the Minister of Justice notified the Commission that the amount of money appropriated by Parliament for political party broadcasting election programmes and general election advertising for the 2023 General Election was $4,145,750.00 (GST inclusive). The 2023 General Election will be held on 14 October 2023.
The Commission began the allocation process by issuing a Gazette notice. Each of the applicants notified the Commission of their qualification for allocation and lodged the required paperwork.
Before allocations, submissions were given by all parties, detailing their applications and public support. The Commission also received other relevant information from various sources which included each party’s membership numbers, legal advice and polling data. A subsequent decision was made by the Commission with seven categories of funding, which included all major parties and all of the applicants, except Vision NZ, who were considered as a part of the Freedoms NZ (‘”umbrella” party).
An allocations decision was made by the Commissioner and as a result, NZ Outdoors & Freedom Party, Freedoms NZ and the Aotearoa Legalise Cannabis Party were all placed within the seventh (lowest) category. Each received a 1.6 per cent ($66,332.00) allocation.
The decision recorded that the Commission had considered its previous allocation decisions, but took the view it was not bound by them nor the underlying processes. It stated that it expressly had regard to each of the s 78(2) factors.
The day after the Decision was issued, NZ Outdoors & Freedoms Party and Freedoms NZ announced an intention to work more closely together. Within a short time, the advised that they now considered NZ Outdoors & Freedoms to be a component part of Freedoms NZ and that the relevant funding allocations would be varied accordingly. The parties started Court proceedings.
The plaintiffs challenged the decision on three grounds:
1. the Commission failed to have any or adequate regard to the mandatory criteria in section 78(2) of the BA;
2. the Commission acted illegally, irrationally and contrary to the principle of legality; and
3. the Commission had failed to clarify how they grouped parties together as an “umbrella” party.
The substantive relief pleaded for these causes of action was a direction that the Commission reconsidered the allocations and a direction that the Commission retained all funds until the review and reallocation was completed.
By-election results and other indications of public support: s 78(2)(b) and (e)
The Court agreed that the s 78(2) allocation criteria have always favoured the established political parties. It considered the history of allocations from the 1990s to date and concluded that the allocations here did not simply mirror the results of the last general election.
It was specifically noted that the Courts have repeatedly emphasised the importance of the Commission’s discretion in this area (and others) and the related importance of the Courts maintaining a relatively “hands off” approach.
Since the Commission considered various factors which were relevant for determination (and none of those factors could properly be seen as conclusive evidence), the weight to be given to each was necessarily a matter of judgment and discretion for the Commission.
Sufficient funding to fairly convey applicants’ policies to the public: s 78(2)(f)
The Court considered what a “fair opportunity” and “fairness” meant in the context. It was noted that “fairness” under s 78(2)(f) required the allocation of funding to each party that was sufficient to purchase at least some television advertising, referring to previous court decisions in this area. The parties were able to purchase some of the advertising slots on television – even if these were not the best options available. The Court concluded that s 78(2)(f) was met.
Umbrella and related parties: s79(3)
Freedom NZ (an umbrella party) was allocated the same funding as the other single parties in category seven and Vision NZ (a component party) received no funding at all. In addition, the Commission indicated to NZOFP that it will lose its separate funding if it chooses to become a component part of Freedom NZ.
The basis for these decisions was s 79(3) of the BA which provides:
An allocation may not be made to an individual party if that party is to receive an allocation as part of a group of related parties
The Court considered the history of s 79(3), referring to the Parliamentary debates on the Broadcasting Amendment Bill (No 2) 1993. It concluded the legislative history confirmed the purpose of s 79(3) is to avoid “double-dipping” in the form of a party effectively receiving an allocation both as an individual party and as part of a group. “Umbrella” parties were somewhat disadvantaged for the broadcasting allocations but had an ability to meet the 5% threshold to enter Parliament.
The applicants' request for a review was dismissed, as no mistakes were found in the Commission's actions. Even though there are recognised issues and complexities with Part 6 of the BA, resolving these problems is not something the Courts can do. It's a matter for Parliament to adjust as and when it sees fit.
Following the 2023 general election, the Independent Electoral Review released its final report and recommendations for the Justice Minister. The report criticised the current election broadcasting regime, agreeing with submitters that it creates a barrier to smaller and new parties and that the allocation criteria appears to unfairly favour existing and larger parties. The report recommended that the broadcasting regime be abolished altogether.
For further information on this case or similar issues, please contact Director Brigitte Morten
