21/12/2021·5 mins to read
2021 litigation wrap up and a look at 2022
The Covid-19 pandemic was no obstacle to courts delivering a number of important judgments this year, which will have significant impacts on the country’s legal landscape.
Litigation arising from Covid-19 and climate change-related issues are firmly front and centre.
We’re seeing decision makers come under greater scrutiny thanks to important judicial review cases.
Meanwhile developments in class action have drawn the attention of the Law Commission, with a report on this topic due in 2022.
Our Litigation Partner, Jania Baigent and Special Counsel, Anita Birkinshaw, reflect on four key areas of law considered by the senior courts this year, which are likely to be further developed in 2022.
Covid-19 and judicial review
New Zealand’s re-emergence of Covid-19 in the community in 2021 was accompanied by various new legal measures by the Government aimed at the protection of public health.
These measures did not always find favour with the public. As the Delta variant continued to spread, the courts were increasingly asked to review the validity of Government decisions related to it.
These cases are as remarkable for the interesting legal issues they raise as for the personal and public consequences of the judgments that resulted. Notable cases include:
- Bolton v MBIE, in which the Court found that Ministry of Business, Innovation & Employment had wrongly declined an MIQ exemption request by restricting its consideration of the applicant’s needs to purely medical ones.
- Various challenges to mandatory vaccination orders made by the Minister for Covid-19 Response, relying on the New Zealand Bill of Rights. To date none have succeeded.
- A successful challenge to the decision of the Minister for Immigration to refuse visas to wider family members of the New Zealand Defence Force wishing to leave Afghanistan.
The recent emergence of the Omicron strain and the measures rapidly introduced by foreign governments in response to it, reflect that Parliament will undoubtedly be required to continue to legislate in response to the pandemic in 2022. Almost as inevitable is the continued development of Covid-19-related case law.
Privacy and data protection
1 December 2021 marked the first anniversary of the Privacy Act 2020 coming fully into force. Some of the features of the new Act include the introduction of new criminal offences and new powers on the part of the Privacy Commissioner.
The Commissioner has not been slow to use these new powers, issuing his first compliance notice in September 2021. The recipient was the Reserve Bank, in the aftermath of a cyber-attack which led the Commissioner to find that the Bank had failed to protect a sub-set of personal information it held, despite its security safeguards.
Earlier in the year, the Waikato DHB also suffered a high profile cyber-attack, resulting in sensitive patient information being made available by the hackers on the dark web. Acting for the DHB, Simpson Grierson obtained an urgent injunction against Radio New Zealand, which had threatened and published a story using information from the stolen data, as well as “unknown defendants” - being all media and other parties, restraining them from accessing, using or publishing the information. The injunction orders were served on all major media entities in New Zealand. The case was the first of its kind and demonstrates that the court is willing to grant injunctions against ‘unknown parties’ in order to protect confidential and private personal details.
Other important privacy cases this year have included Peters v Attorney-General in which the Court of Appeal dismissed Winston Peters’ invasion of privacy claim following media reports that he had mistakenly been overpaid New Zealand superannuation, and the two decisions in Te Pou Matakana Limited v Attorney-General in which the High Court reviewed the Ministry of Health’s decisions not to provide individual data of unvaccinated Maori.
Privacy issues look likely to keep lawyers busy in 2022 as New Zealand adjusts to the new measures introduced by the Government in response to Covid-19. A number of these, including contact tracing and the collection of vaccination status data have significant privacy implications, which businesses will be required to navigate.
Climate change litigation
As the effects of climate change increase, so too do lawsuits relating to it. We can expect to see further legal action in 2022.
Earlier this year, in Smith v Fonterra the Court of Appeal closed the door on claims in negligence and nuisance against corporates for otherwise lawful emitting activities. Significantly, it also refused to recognise a new legal duty not to contribute to climate-related harm. It remains to be seen whether the Supreme Court will revisit these issues on appeal in 2022.
Regardless, corporates will increasingly be held to account in other areas of law for their climate-related decisions. This year, the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Bill passed its third reading. The Bill will broaden the non-financial reporting requirements of certain large entities to include climate-related disclosures. Based on international trends, it is also likely that companies and their directors will see claims by stakeholders alleging that they have failed to take proper account of climate-related issues in a broad range of areas, from governance decisions to investment choices.
However, it is public bodies which are likely to continue to come under the most legal scrutiny in the immediate future, in keeping with their status as the most commonly sued defendant in climate cases globally. 2021 saw some high-profile climate-related judicial review cases including the challenge by Lawyers for Climate Action New Zealand Inc to the Climate Change Commission’s advice to the Minister for Climate Change; and the action by climate advocacy groups against Auckland Transport and Auckland Council, relating to their land transport plan. Both cases are set to continue to run in 2022.
Internationally, some of the most significant climate change lawsuits have been class actions, brought by a group of claimants sharing a common interest. From a claimant’s perspective the class action has a number of benefits, not least the sharing of legal costs. Often those costs are met by a third-party litigation funder, on the basis that the funder will receive a portion of any damages awarded.
At the end of 2020, the Supreme Court held that class actions can proceed on an ‘opt out’ basis. In simple terms this means that anyone falling within a defined class of claimant will be represented unless they actively exclude themselves. As a result, defendants can expect to face larger class actions and be exposed to greater liability.
In 2021, the New Zealand courts dealt with a number of high-profile class actions. In May, the Supreme Court put the final nail in the coffin of the Feltex class action, more than 13 years after it was first filed in the High Court. In August, a $220 million action by homeowners against James Hardie settled halfway through a 17-week trial. Harbour Litigation Funding, which was funding the homeowners’ claim, agreed to pay Hardie $1.25 million. Just weeks later, it was more good news for Hardie when the High Court found against a class of nearly 150 homeowners in a claim against the manufacturer in relation to its Harditex product. A third class action against James Hardie is set for trial in 2023.
The developments in the class action sphere have drawn the attention of the Law Commission. Commission papers released in 2020 and 2021 reflect that the Commission favours the introduction of a formal regulatory regime governing class actions and third-party litigation funding. The Commission will provide a final report to the Minister of Justice on these issues in 2022.