Justin Smith

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  • Justin Smith is a leading Wellington based barrister who handles general commercial litigation at all levels. He is a former Crown Prosecutor (1982 - 1986), was a partner at Kensington Swan at Wellington and Auckland (1988 - 1994) and a partner at Russell McVeagh in Wellington (1994 - 2007). He was a member of Russell McVeagh's Board of Management from 2001 to 2004 and the Chairman of that Board from 2004 to 2006. He went to the independent bar in 2007. He has represented numerous clients (individuals, voluntary associations, small businesses to the largest national and international corporates) at all levels ( including tribunals, arbitral tribunals, select committees, ministerial inquiries, High Court, Court of Appeal, Supreme Court).

  • Areas of Practice
    • General and commercial litigation
    • Securities litigation
    • Intellectual property/IT litigation
    • Energy litigation
    • Building and construction
  • Admission to Bar
    • 1981
  • Education
    • Bachelor of Laws, Canterbury University
  • Selection of Recent / Notable Cases / Instructions (since 2000)
    • Acting for NZX Ltd in a variety of disciplinary and regulatory matters (2007-2009)
    • Counsel assisting Takeovers Panel in respect of investigation and determination into compliance with Takeovers Code by Dorset Management Corporation in the partial takeover of Rubicon Ltd by the Knott Funds (2009)
    • Lead counsel for AgResearch in GE Free NZ v Environmental Risk Management Authority and AgResearch Limited: (Judicial review of ERMA's handling of development and field testing applications for genetically modified organisms) (High Court 2009 and pending in Court of Appeal)
    • Lead counsel for Chartwell in Chartwell NZ Pty Ltd v Macdonald Investments Ltd: Claim in respect of removal of operator from gas field under JV agreement and Farmin agreement provisions (2009)
    • Lead counsel for plaintiffs in Mark et al v Attorney-General, LINZ, Transit NZ, Kapiti Coast District Council (2008 to date): proceedings for offerback under Public Works Act 1981
    • Lead counsel for Healthcare NZ Ltd in Healthcare NZ Ltd v Fairfax Media Publications Ltd and APN News and Media NZ Ltd (injunction to protect confidentiality) (2007 - 2008): injunction
    • Lead counsel for Todd Petroleum Mining in litigation against Shell/OMV in relation to operatorship of Maui, Kapuni, Pohokura and other Taranaki Oil and gas fields (High Court and Court of Appeal) (2005 to 2008)
    • Counsel for Todd Pohokura in Pohokura Offtake litigation against Shell/OMV (High Court) (2006 to 2007)
    • Lead counsel in HWR v Maslin Stevenson (High Court) (Litigation over pre-exemption rights in joint venture) (2007/2008)
    • Lead counsel for Todd Taranaki in Pohokura/McKee Mangahewa condensate storage litigation against Shell/OMV (High Court) (2006 to 2007)
    • Lead counsel for Todd Petroleum Mining in Greymouth Petroleum v Todd Petroleum Mining Limited as to ownership/access to gas wells (High Court) (2006)
    • Lead counsel for NZX in relation to Access Brokerage collapse in disciplinary, regulatory, and High Court litigation (2005 to date)
    • Lead counsel for Wellington Indian Sports Club in Wellington Indian Sports Club v Wellington Indian Association (High Court) in proceedings for specific performance of property agreement (2006)
    • Counsel for Telecom in Commerce Commission litigation relating to compliance with Door to Door Sales Act/FTA TA in respect of mobile phone sales (2004 to 2006)
    • Lead counsel for Telecom in respect of infrastructure rating litigation (High Court, Court of Appeal, and Land Valuation Tribunal) (2004 to date)
    • Lead counsel for AgResearch in MADGE v ERMA and AgResearch (High Court) a judicial review of genetic engineering approvals granted under the HASNO Act (2004)
    • Lead counsel for AgResearch in Bleakley v ERMA and AgResearch (High Court) a judicial Review and appeal in respect of genetic engineering approvals granted under the HASNO Act (2003)
    • Lead counsel for Telecom in business loss claim for water damage against AMP and others (High Court) (2003 to date)
    • Lead counsel (High Court and Court of Appeal) for Tranz Rail (now Toll) in Tranz Rail v Wellington District Court (Commerce Commission) where judicial review was successfully applied for in respect of a search warrant obtained by the Commission (2002)
    • Lead counsel for Fonterra in valuation arbitration to establish value of NZ Dairy Board for buyout of minority interests (2002)
    • Lead Counsel for Tranz Rail (now Toll) in Ministerial Inquiry into Safety and Health at Tranz Rail (2000)
    • Lead counsel for IBM in High Court litigation against the NZ Government (Police) and negotiations with Treasury in respect of the INCIS national crime fighting computer system for which IBM was contracted to NZ Government and lead counsel for IBM in subsequent Ministerial Inquiry into INCIS (2000)
  • General Experience
    • advising on enforceability of contractual and statutory indemnities
    • litigation involving duties of receivers of companies
    • valuation arbitrations and litigation
    • construction (e.g. counsel responsible for earthworks claims (liability) and quantification of all contractors claims on Clyde High Dam arbitration, one of NZ's longest running and most complex construction arbitrations -1990, and numerous other construction cases.
    • commercial arbitrations eg involving the extent of liability under a tax indemnity in a redeemable pretence share deal involving a national transport company and a publicly listed investment company
    • advice and litigation in professional indemnity claims including against CA firms for losses associated with valuation of film projects for purpose of flotation of public companies and sale of assets in course of receivership
    • constructive trusts
    • advice on regulatory issues for transport infrastructure companies
    • judicial review of decisions of statutory bodies including Land Transport Safety Authority, Transport Accident Investigation Commission, Customs Department, Seafood Fishing Industry Council and Meat Industry Association and the Motor Vehicle Dealers Institute
    • High Court proceedings to obtain orders sanctioning arrangements under part XV of the Companies Act 1993 for merger of two major banks and two energy companies (1997)
    • choice of venue/forum non conveniens disputes
    • Fair Trading Act
    • commercial contracts generally
    • product liability
    • criminal matters; former Crown Prosecutor (1982 to 1988), lead counsel for Tranz Rail Limited in R v Tranz Rail (Morgan Jones case) in High Court in 1996 when Tranz Rail was acquitted (involved issues of criminal liability of corporates, safety management systems, right of silence, public interest immunity and other issues), lead counsel for accused on instructions from Federated Farmers in R v Cronin & Ors (jury trial, where seven aerial topdressing pilots were prosecuted for low flying over Parliament Buildings in 1988 as part of a farmers' rally against Labour Government's economic and agricultural policies (all accused acquitted))
    • civil proceedings in negligent misrepresentation and fraud.
    • proceedings before various disciplinary bodies including District Law societies, Quantity Surveyors Association, New Zealand Scout Association and others
    • hearings before statutory bodies such as the Indecent Publications Tribunal, Public Service appeals, Commerce Commission, Securities Commission
    • appearances before Planning Tribunal/Environmental Court
    • advice and defence of occupational safety and health prosecutions for major corporates
    • defence of condemnation proceedings by Customs (content and origin of goods complying with tariff for availability of concessions under ANZCERTA ("CER"))
    • customs advice generally
    • property litigation
    • litigation involving oppression of minority under Companies Act/derivative proceedings
    • Official Information Act disputes
    • defamation
    • franchising/licensing disputes
    • litigation involving infringement of copyright, trademarks, passing off, fair trading, business software piracy.
  • Client / Directory Comments
    • Listed in many directories, e.g. Chambers Global 2006, 2007.
  • Appointments / Professional Work
    • Member AMINZ
    • NZLS Litigation Skills Faculty member, NZLS Expert Witness advocacy programme Faculty member, NZLS Advanced Litigation Skills advocacy programme Faculty Member
    • Board of Management Member Russell McVeagh 2001 - 2003
    • Chairman of Board of Management Russell McVeagh 2004 - 2005

Email : justin.smith@stoutstreet.co.nz
Direct Dial : +64 4 917 1080
Fax : +64 4 472 9029
Mobile : +64 21 332 512
Postal: PO Box 5722, Wellington 6145