Jonathan Orpin-Dowell

General commercial litigation

• Lead counsel for the body corporate in a long-running dispute concerning the liability of a dissident owner to pay for leaky building repairs. This included decisions on the Court’s jurisdiction to grant interim relief to stay an arbitration ([2018] NZHC 3356), when proceedings become an abuse of process because they involve collateral challenges to earlier litigation ([2019] NZCA 408 and [2021] NZHC 365), and the operation of set-off rights in corporate insolvency ([2021] NZCA 145). 

• Lead counsel for the plaintiff in defamation proceedings. This included leading interlocutory decisions on the availability of interrogatories in defamation proceedings by both plaintiffs and defendants (Leishman v Levie [2018 NZHC 721, [2018] NZAR 984; and [2018] NZHC 2122, [2018] NZAR 1276).

• Acting for Dilworth Trust Board in the High Court and Court of Appeal in proceedings under the Public Works Act successfully seeking the return of land underneath the Newmarket Viaduct in Auckland. The case deals with the proper approach to determining whether land is no longer required for a public work and the statutory exceptions to the obligation to offer back (Dilworth Trust Board v Attorney-General [2017] NZHC 2987 and [2021] NZCA 48). 

• Lead counsel for OMV New Zealand Ltd in proceedings concerning whether the lease of commercial premises damaged in the 2016 Kaikoura earthquake had terminated because they had been rendered untenantable (Precinct Properties Holdings Ltd v OMV New Zealand Ltd [2018] NZHC 1939). 

Equity and trusts litigation

• Acting for New Zealand Guardian Trust Co Ltd successfully defending claims for breach of trust arising out of sale of trust property. The case deals with the standard for the Court’s review of discretionary decisions, the relevance of settlors’ wishes and what damages are recoverable in claims for breach of trust (Easton v The New Zealand Guardian Trust Co Ltd [2021] NZHC 2084).

• Lead counsel for defendant-beneficiaries in proceedings seeking the removal of administrators and claiming an express and/or constructive trust arising out of the estate of the late Sir Robert Chambers (Chambers v Chambers [2016] NZHC 583). 

Contemporary Te Tiriti o Waitangi litigation

• Lead counsel for the Whānau Ora Commissioning Agency in urgent judicial review proceedings in the High Court challenging the Ministry of Health’s decision not to provide the applicants with data to enable them to identify Māori not vaccinated against COVID-19 in order to provided targeted kaupapa Māori vaccine outreach services. The Court set aside the Ministry’s decision on the basis that: (i) it had applied the wrong legal test; and (ii) because the Ministry had failed to make the decision in accordance with the principles of Te Tiriti o Waitangi, informed by tikanga (Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942).

• Lead counsel for Ngāti Manawa in judicial review proceedings in the High Court concerning the tikanga based process for allocating to iwi, on the basis of mana whenua, the Central North Island forests land returned under the Central North Island Forests Settlement (2021, judgment currently reserved).

• Acting for Ngāti Whakahemo in the Supreme Court, Court of Appeal and High Court in successful judicial review proceedings challenging the decision by Landcorp to sell land subject to a Treaty of Waitangi claim to a third party (Ririnui v Landcorp Farming Limited [2016] NZSC 62, [2016] 1 NZLR 1056; [2015] NZCA 160; and [2014] NZHC 3402).

• Acting for the National Urban Maori Authority in successful judicial review proceedings in the High Court challenging the basis on which directors of Te Putea Whakatupu Trustee Ltd (a corporate trustee set up to manage assets distributed under the Treaty of Waitangi Fisheries Settlement) were appointed (National Urban Māori Authority v Te Ohu Kai Moana Trustee Limited [2016] NZHC 1600).

Administrative law proceedings

• Acting for the New Zealand Law Society as intervenor in the Court of Appeal and High Court in judicial review proceedings challenging the legality of the lockdown imposed by the government in response to the COVID-19 pandemic (Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 and [2021] NZCA 520). 

• Acting for the Accident Compensation Corporation as intervenor in the Supreme Court in proceedings concerning whether the courts’ jurisdiction to hear negligence claims against a drug manufacturer was ousted by the Accident Compensation Act 2011 in circumstances where the Corporation had accepted the plaintiff’s application for cover under the Act but the plaintiff subsequently took the view that he was not entitled to cover and preferred instead to sue for negligence (Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30). 

• Acting for the Financial Markets Authority in the Supreme Court and Court of Appeal in judicial proceedings brought by ANZ arising out of the FMA’s investigation into the Ponzi scheme run by Ross Asset Management. The decision to disclose was made in the context of the FMA’s investigation into ANZ’s potential accessory liability in knowing receipt and dishonest assistance for RAM’s breach of trust (ANZ Bank of New Zealand Ltd v Financial Markets Authority [2019] NZSC 40; and [2018] NZCA 590).

• Acting for The Opportunities Party in judicial review proceedings challenging its exclusion from Television New Zealand’s minor party leaders’ election debates (Morgan v Television New Zealand Ltd [2017] NZHC 2178, [2017] NZAR 1485). 

Other cases

• Counsel assisting the Court in an appeal against orders made in advance of a criminal retrial by the High Court requiring media entities to remove online articles published about the first trial. The main issue on appeal was whether the Court of Appeal had jurisdiction to entertain the appeal. The Court accepted my submission that the take down orders, made pursuant to the High Court’s inherent powers, were civil in nature and therefore there was jurisdiction for a civil appeal (Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21).

• Counsel assisting the Court on an application concerning the discoverability of a legal opinion. The application raised the question whether only the Attorney-General can waive privilege held by the Crown. The Court accepted my submission that privilege could be waived by anyone acting with the authority of the privilege holder (Carter v Coroner's Court at Wellington [2015] NZHC 1467, [2016] 2 NZLR 133).

• Lead counsel on appeal and junior counsel at trial for the accused in a successful defence of a charge under the Maritime Transport Act 1994 of causing unnecessary risk or danger following a berthing incident involving a passenger ferry (R v Henderson ([2014] NZCA 598, [2015] NZAR 251).

• Junior counsel for Svitzer (the salvors of the Rena) in a successful opposition to an application by the defendants to strike out causes of action: (i) to annul or modify the terms of a charterparty under the International Convention on Salvage; and (ii) to set aside an inequitable agreement in the Court’s admiralty jurisdiction. This was the first proceeding in which a claim to set aside a charterparty under the International Convention on Salvage was litigated in a domestic court (Svitzer Salvage BV v Z Energy Ltd [2013] NZHC 3541, [2014] 1 Lloyd’s Law Reports Plus 19).

• Counsel for “A” in a successful ex-parte application for an interim injunction restraining the media and bloggers from revealing the identity of “A” who had made allegations of sexual offending against a former Member of Parliament (A v Fairfax New Zealand Ltd (High Court, 2011).

• New Zealand Law Style Guide (1st, 2nd and 3rd eds, Thomson Reuters, Wellington, 2009, 2011 and 2018) (co-author)
• "Reviewing 'Unreasonable' Discretionary Decisions Made by Trustees" (2015) 21 NZBLQ 131
• “Advising Mariners Following a Maritime Casualty – Some Recent Lessons (paper co-presented to the Maritime Law Conference, Taupo, May 2015)
• “How to Identify Ultra Vires Decisions” (paper presented to the 10 Points in One Day Conference, Wellington, February 2015)
• “Standard Fact Patterns” (paper co-presented to the NZLS Issues in Unjust Enrichment Intensive, July 2014)
• “Developing Policy that is Consistent with the Bill of Rights: Some Comments on the Electoral Reform Project” (paper presented to the Reviewing New Zealand’s Constitution Conference, Wellington, May 2011)
• “Constitutional aftershocks” [2010] NZLJ 386 (co-author)
• “Electoral finance regulation” [2009] NZLJ 367 (co-author)
• “The Personal Property Securities Act 1999 and Trusts – When is an Interest Under a Trust a Security Interest” (2008) 14 NZBLQ 109