Mary Scholtens QC

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Mary Scholtens is an experienced Queen's Counsel who has acted predominantly in the public law area since commencing practice in 1982. She worked in the Crown Law Office for ten years before going to the independent bar in 1996. She was made a Queen's Counsel in 2002. Mary brings to her advice and representation an appreciation of how government works. Her practice is primarily in the broad field of administrative and constitutional law, particularly where commercial and governmental interests diverge. She has appeared in many judicial review proceedings, in public law claims in contract, tort and equity, and in appeals from regulatory bodies. She has been appointed as amicus curiae in a number of cases before the High Court, Court of Appeal and Supreme Court. She has assisted and appeared before Commissions of Inquiry, Parliamentary Select Committees, and the District Court on an Electoral Petition. She is a member of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

Significant matters she has been involved in include three successful appearances before the Privy Council early in her practice. These concerned judicial review of the grant of a mining license by the Minister of Energy to the Crown over the Ngaere/Waihapa oil field discovery; judicial review over the allocation of assets as part of the Auckland port corporatisation; and a contractual claim relating to whether a ratchet clause was included in leases sold as part of the State Insurance Office undertaking.

Most recently Mary has acted as one of a team of counsel for the IRD in significant tax avoidance cases against five of the major banks involving cross-border structured finance transactions. She appeared in the first of two successful hearings, being a 12 week trial against the Bank of New Zealand in 2009. The significant claims were the subject of a global settlement at the end of 2009 for over $NZ 2.2 billion. She remains involved in outstanding matters.

She has acted as Counsel for the Commerce Commission in eight appeals and judicial reviews brought by Vodafone and Telecom against the Commission's approach to the setting of the value of the Telecom Service Obligation under the Telecommunications Act – ongoing and separate challenges to the Commissions Determinations for each year since 2003, the first successfully defended by the Commission in the High Court in 2007 and Court of Appeal in 2009, but subject to an application for leave to the Supreme Court; the second group of challenges heard by the High Court in 2009 and a third tranche still before the High Court.

Other recent work includes acting as lead counsel of a team dealing with "leaky building" claims against the Crown/Building Industry Authority; and as counsel for the 21 District Health Boards in proceedings relating to the funding of rest homes. She has acted for the NZ Law Society as intervener in a number of appeals from decisions relating to the availability of legal aid under the Legal Services Act 2000. She is acting for Maritime New Zealand in a challenge to the Director’s power to withdraw an approval from a safe ship management company. She was briefed as amicus to the Supreme Court in a matter weighing privacy/commercial confidentiality issues versus open justice.

In the regulatory area Mary has acted for and advised a wide range of bodies and is generally familiar with the regulatory regimes and principles that apply across a broad area including dairy, airports, electricity, telecommunications, safety, environment and fishing. She carried out a review of the Civil Aviation Rule-Making Process in 2002. From 2004 to 2007 Mary acted as Counsel Assisting the Commission of Inquiry into Police Conduct. Mary was appointed to the NZ Law Practitioner's Disciplinary tribunal in 2007 and is a member of the Legislation Advisory Committee.

Mary has been involved in many continuing education activities, particularly in the public law and litigation skills area. She has written and spoken widely on good decision-making processes and administrative law litigation, and provided in-house training on proper decision making to many public agencies. She believes lawful and efficient decision-making is an important mark of good government, and that the standards imposed on decision-makers by the law must be realistic, able to be adhered to without unreasonable barriers and costs. The role of the Courts in determining the appropriateness and reasonableness of such standards in today's society is often a complex task, and Mary enjoys the challenge of assisting this process.

  • Primary areas of practice

    Specialist public, constitutional and administrative law litigation and advice involving central and local government and quasi-government/regulatory agencies, particularly in the commercial field, and including-

    • Judicial review proceedings
    • Constitutional law including Parliamentary practice and electoral law
    • Regulatory processes including environmental risk management, occupational health and safety, civil aviation, maritime and transport safety, telecommunications, electricity, and trade practices including Fair Trading/Commerce Act/Dairy Industry Restructuring
    • Public Finance, Governance of Crown Entities
    • Public civil litigation including tort, contract and equity
    • Inquiries and reviews
  • Admission to Bar
    • February 1983.
    • Appointed Queen's Counsel in 2002.
  • Legal education
    • 1982 - LL.B (Victoria University of Wellington)
    • 1998 - Laws 518 (Administrative law)
    • 1999 - Laws 581 (Advanced legal study)
  • Professional Career :
    • 2002 - Queen's Counsel
    • 1996 - Barrister sole
    • 1986 - 1996 Assistant Crown Counsel, Crown Counsel and (from 1991) Team Leader, Public/Commercial Team, Crown Law Office. Member of Crown Law Office Management Board.
    • Early legal practice was within legal sections of core central government organisations (Education, Customs) and a year a criminal/human rights private practice in central London.
  • Notable Cases :
    • Lead counsel of a team dealing with a significant number of "leaky building" claims in negligence against the Crown/Building Industry Authority. (High Court, Court of Appeal and Supreme Court) Attorney-General v Body Corporate 200200 ("Sacramento") [2007] 1 NZLR 95 (CA); Ellerslie Park Holdings v Attorney-General [2005] NZSC 44; (2006) 18 PRNZ 376
    • Appointed as Amicus before the Supreme Court in B v M (2006) 18 PRNZ 398, where the question of the confidentiality of partnership information in a matrimonial dispute of one of the partners was to be considered. Hearing effectively aborted at commencement as information published.
    • Counsel Assisting the three-year Commission of Inquiry into Police Conduct which initially followed complaints by Louise Nicholas of historical sexual offending by police officers and a failure to properly investigate her allegations (2004 to 2007)
    • Counsel for the Commerce Commission in a number of proceedings including eight appeals and judicial reviews brought by Vodafone and Telecom against the Commission's approach to the setting of the value of the Telecom Service Obligation under the Telecommunications Act – ongoing and separate challenges for each year since 2003 (High Court, 2007; CA and High Court 2009); an appeal under the Fair Trading Act where the Court of Appeal put auctioneers on notice that they must be clear when vendor bidding is taking place: Commerce Commission v Grenadier Real Estate Ltd [2004] 2 NZLR 186 (CA); Counsel Assisting the Commission in the first dispute under the Dairy Industry Restructuring Act 2001; in proceedings unsuccessfully challenging the Commission's processes and seeking interim orders in the lead up to the Commission's report to the Minister in relation to airport charges (High Court): Wellington International Airport Ltd v Commerce Commission (2002) 7 NZBLC 103,763; proceedings challenging the exercise of investigatory powers by the Commission(High Court): Koppers Arch Wood Protection (NZ) Ltd v Commerce Commission (2004); in a test case for validity of negotiated penalties under Commerce Act (High Court) Commerce Commission v. Milk Corporation & Ors [1994] 2 NZLR 730
    • Counsel for Hutt City Council in the first electoral petition to challenge the running of the FPP/STV poll under the Local Electoral Act 2001: (District Court): Akuso v Hutt City Council [2004] DCR 322.
    • Counsel for Destination Marlborough in proceedings brought by the incumbent contractor challenging the tender process in which it was unsuccessful (High Court): Challis v Destination Marlborough Trust Board Inc [2003] 2 NZLR 107
    • Carried out a number of private and public inquiries and reviews, including a review of the CAA's Rule-making processes (released February 2003) and a review of the operation of the Protected Disclosures Act 2001 in accordance with that Act, as instructed by the Minister of State Services (tabled in Parliament in December 2003). Both have lead to changes.
    • Counsel for New Zealand Law Society in the first High Court proceeding under the new Legal Services Act 2000 testing the scope of civil legal aid: Legal Services Agency v New Zealand Law Society [2004] 3 NZLR 63. Have acted for the Society as intervener, and the Legal Aid Review Panel on appeal by the Agency, in a number of other cases relating to the administration of legal aid under the Act.
    • Counsel for the Environmental Risk Management Authority in judicial review proceedings brought against ERMA, as well as the Minister, by Mothers Against Genetic Engineering: Mothers Against Genetic Engineering Ltd v Minister for the Environment and ors (High Court, 2003); and in the first appeal under the Hazardous Substances and New Organisms Act 1996 against approval of genetic engineering field trials by AgResearch (High Court, Full Court): Bleakley v. Environmental Risk Management Authority [2001] 3 NZLR 213
    • Counsel for Inner City Group For Men, which achieved an award of compensation under the NZ Bill of Rights Act for the consequences to the Group's business of a breach of natural justice in a regulatory/monitoring process by a funding agency (High Court): Binstead v Northern Region Domestic Violence (Programmes) Approval Panel [2002] NZAR 865; [2002] NZFLR 852
    • Acted as junior counsel for the CAA in a Ministerial Inquiry arising out of differences between the CAA and the Transport Accident Investigation Commission: Inquiry into Aspects of the Performance of the Civil Aviation Authority (1998)
    • Counsel for the Crown in a complex claim in contract, tort, equity and administrative law relating to the licensing and funding of a home catering primarily for older persons with Downs Syndrome: Bettina Rest Homes Ltd v. Attorney-General & Anor (High Court, 1999)
    • Counsel primarily for the Ministry of Health in the Ministerial Inquiry into Matters Relating to Possible Under-Reporting of Adverse Cervical Smear Results in Gisborne (2001). The Ministry held significant historical information relating to the cervical screening programme and was responsible for the programme at the time the misreadings by Dr Bottrill occurred.
    • Counsel for the plaintiff on behalf of the Save Our Squadrons Campaign seeking judicial review under the Defence Act 1990 of the Minister's decision to eliminate the air combat force from the RNZAF. Struck out by High Court as non-justiciable and unsuccessful on appeal (High Court & Court of Appeal): Curtis v. Minister of Defence [2002] 2 NZLR 744 (Court of Appeal)
    • Counsel for the Commissioner of Inland Revenue in a number of cases including judicial review proceedings arising out of the reassessment of tax liability for tax avoidance on transactions which appeared in the "Winebox". Second counsel to the Solicitor-General on successful appeal. (High Court, Court of Appeal) NZ Wool Board v. Commissioner of Inland Revenue (1999) 19 NZTC 15,082 (High Court): 15,476 (Court of Appeal). Also junior counsel to the Solicitor-General in judicial review proceedings of the lawfulness of a tax investigation of BIL by Inland Revenue - raising issues of fairness and estoppel (High Court and Court of Appeal): Brierley Investments Ltd v. Bouzaid (1993) 15 NZTC 10,075, (1993) 17 TRNZ 625 (HC); [1993] 3 NZLR 655 (CA).
    • Senior counsel for Minister of Transport in a challenge by Ports of Auckland Limited to decisions relation to the ultimate ownership of certain marina assets following the restructuring and corporatisation of the Auckland Harbour Board. Ultimately successful on appeal to the Privy Council in May 1999. (High Court, Court of Appeal, Privy Council) Manukau City Council v. Ports of Auckland Ltd & Ors CP449/95, High Court, Auckland, Smellie J, 29 September 1997; Court of Appeal252/97, 19 May 1998; [2000] 1 NZLR 1 (Privy Council)
    • Counsel for the Director off Civil Aviation in judicial review proceedings brought by the Director and relating to the role of the Environment Court when considering matters of aviation safety (High Court): Director of Civil Aviation v. Planning Tribunal [1997] 3 NZLR 335
    • Acted as junior counsel for Sir Ronald Davison in the early challenge by corporates, IRD and Serious Fraud Office, to the conduct of the Commission of Inquiry on grounds of unfairness and bias. After a number of interlocutory matters, these particular proceedings were discontinued following publication of the Commission's report: (High Court, 1997)
    • Judicial review of the Government's decision to move state house tenancies on to a market related rent, with housing assistance provided through welfare agencies: JOM Lawson v. Housing New Zealand [1997] 2 NZLR 474
    • Lead counsel in a successful defence to a contractual claim relating to whether a ratchet clause was included in leases with Department of Internal Affairs, sold as part of the State Insurance Office undertaking (Court of Appeal and Privy Council): Norwich Union v. Attorney-General (1995) ANZ ConvR 241 (CA) (upheld by PC)
    • Senior counsel for the Crown in the "West Coast Accord" litigation - proceedings brought by various West Coast interests in contract, tort and equity claiming multi-million dollar damages relating to the 1986 West Coast Accord and Government actions over the level of supply of indigenous timber to local sawmills: West Coast Regional Council & Ors v. Attorney-General (High Court, 1995; Court of Appeal, 1997). Application for interim orders resisted (1994) 8 PRNZ 44. Later instructed by West Coast interests in relation to negotiations for compensation with the Government.
    • Responsible for the management of litigation challenging to the Government's plans to corporatise Power Boards (13 proceedings, all ultimately resolved in Crown's favour). Counsel for the Minister in a number of unsuccessful challenges to establishment plans approved by the Minister of Energy for corporatising supply authorities pursuant to the Energy Companies Act. Interim orders declined in Auckland case (High Court). Hamilton City Council v. Waikato Electricity Authority & Ors [1994] 1 NZLR 741; Auckland City Council v. Auckland Electric Power Board & Ors (High Court, 1993).
    • Lead counsel in consolidated negligence action (claiming $5 million) and judicial review proceeding against Customs arising out of tariff advice on imported "knocked down" Chevrolet trucks (High Court and Court of Appeal): Martin Square Motors Ltd v. Customs [1993] 2 NZLR 289 (CA)
    • Counsel for Attorney-General in judicial review proceedings brought by certain Maori challenging the "Sealords deal" relating to Maori fisheries (High Court and Court of Appeal): Te Runanga o Wharekauri v. Attorney-General [1993] 2 NZLR 301 (Court of Appeal)
    • Amicus to the High Court in test case judicial review proceedings against the Ombudsman relating to enforcement of rulings under the Official Information Act (High Court): TVNZ v. Ombudsman [1992] 1 NZLR 106; in an unopposed patent extension application re Captopril (High Court): ER Squibb & Sons Inc v. Pacific Pharmaceuticals Ltd [1993] 3 NZLR 240 and junior amicus in test case proceedings relating to mergers under the then new Commerce Act 1986 (High Court and Court of Appeal); Goodman Fielder Ltd v. Commerce Commission [1987] 2 NZLR 10 (CA)
    • Counsel in judicial review of the award by the Minister to the Crown of a mining licence over Ngaere oilfield in Taranaki in High Court, Court of Appeal and Privy Council): Minister of Energy v. Petrocorp Exploration Ltd [1991] 1 NZLR 1 (HC, CA), 641 (PC) Included the influential interlocutory issue of cross-examination of Ministers; [1989] 1 NZLR 348 (CA).
    • Counsel in the constitutional challenge (based in contract) to the Government's tobacco sponsorship ban (High Court): Rothmans of Pall Mall (NZ) v. Attorney-General [1991] 2 NZLR 323
    • Judicial review of (inter alia) valuation of Wellington Airport as part of corporatisation by the Ministers of Transport and Finance; and implications for landing charges (High Court): Air New Zealand & Ors v. WIAL and Attorney-General (1991) (High Court). Issue of cross-examination of Ministers in High Court and Court of Appeal: (1991) 4 PRNZ 1.
    • Counsel for Governor-General in judicial review of the power of Governor-General as Commander in Chief of New Zealand Defence Forces to reopen a complaint (High Court) Bradley v. Governor-General and Commander in Chief of NZ (High Court, 1991).
    • Lead counsel in a judicial review test case of the Minister's powers of recall under the Fair Trading Act relating to BMX bicycles (High Court): Isaac v. Minister of Consumer Affairs [1990] 2 NZLR 606
    • Lead counsel in proceedings relating to the Customs Tariff applicable on imported road sweepers which had been reconditioned in Australia (High Court and Court of Appeal): Wellington City Council v. Attorney-General [1990] 2 NZLR 281 (CA)
  • Appointments, Directorships etc
    • Sat on appointments and recommendatory panels for a number of senior legal public service positions
    • Member NZ Law Practitioners Disciplinary Tribunal, now NZ Lawyers and Conveyancers Tribunal (2007 - )
    • Chair of the Radiation Technologists Appeal Board (2001)
    • Member, Wellington Prosecution Panel 1997-2001
    • Director of two private companies (since 2002), now joined as one: Impac Services Ltd - offering strategic advice and various services in health, safety and wellbeing, and supported software solutions. A Deloittes "Fast 50" company in 2006 and 2007.
    • Member of the Institute of Directors, Certificate in Company Direction (1998).
    • Chair, Wellington District Law Society Public Law Committee (2003)
    • Council member of the NZ Bar Association (2002-2006)
    • Member of a wide range of professional organisations including the New Zealand Institute of Public Administration.
    • Represented New Zealand at the Annual Australasian Government Solicitors' Conference (1992-94)
  • Publications
    • Co-author, "Crown Proceedings and Practice" for Butterworths Laws of New Zealand
    • Co-author, "The Judge Over Your Shoulder" (Crown Law Office, 1990) - a guide to the principles of decision-making for officials and Ministers.
    • Editorial Committee, VUW Law Review (1978-81)
    • Numerous seminar papers
  • Other
    • Honorary legal adviser to Challenge 2000 (social agency centred in Johnsonville which, among other things, runs a number of programmes to which offenders who receive community based sentences are channelled by the Courts); Board member 1989-1998
    • Regular guest speaker in Police DARE (Drug Abuse Resistance Education) Programme in schools 1988 - about 2003
    • Involved in Law in Schools programme 1987 - about 2003
    • Recipient Women's Suffrage Year Medal (1993)

Email : mary.scholtens@stoutstreet.co.nz
Direct Dial : +64 4 917 1085
Fax: +64 4 472 9029
Mobile : +64 27 440 7934
Postal: PO Box 5454, Wellington 6145