LegalResearchFoundation

This article considers the 14 company law cases which went to the Privy Council on appeal from New Zealand between 1841 and 2004. In light of analysis of these cases, the article contends that the Supreme Court is better equipped to perform the functions of a final appellate court for New Zealand in a company law context. Such a comparison between the Privy Council and the Supreme Court is timely due to the imminent 20th anniversary of the establishment of the Supreme Court marking a time to reflect. Notably, not all the 14 cases warranted further appeal. Appeals that were not of broader significance to company law but involved at least moderate financial stakes could proceed to London. Nonetheless, several appeals illustrate the significant contribution of the Judicial Committee of the Privy Council to New Zealand company law, and also sometimes to the law of other jurisdictions. The abolition of the right of appeal to the Privy Council and the establishment of the Supreme Court of New Zealand brought three key benefits — namely, that appeals are less expensive, the new leave criteria are appropriately more restrictive, and New Zealand justices have local knowledge to develop New Zealand law.

The passage of two decades since the creation of New Zealand's Supreme Court provides an opportunity to reflect on the Court's role, value and reputation. This article offers one advocate's opinions on some aspects of those topics. In considering the legitimacy and limits of judicial decision-making, this article reflects an orthodox perception of the courts as deliberately constrained participants in the overall government of New Zealand, not least because of their lack of a democratic mandate or of democratic accountability. It notes that a remarkable (and troubling) level of "mission creep" is perceived by some lawyers whereby the Court is deciding contentious public policy issues seen as more appropriate for democratically accountable decision-makers. This trend risks undermining the predictability of legal rules, posing new challenges for the rule of law and parliamentary sovereignty, and eroding the legitimacy of judicial decision-making.

With the advent of social media, finfluencers (social media influencers who post online content on topics relating to money and finance) have become increasingly influential, attracting a loyal following of young New Zealanders who look up to them for financial advice. However, the provision of "regulated financial advice" to retail clients is a regulated activity in New Zealand, requiring the financial advice provider to hold a "financial advice provider licence" (issued by the Financial Markets Authority), and to adhere to a series of other compliance obligations which involve the outlay of both time and money. To avoid these requirements, many finfluencers will often claim that what they are saying "isn't financial advice". This article seeks to explore the uneasy relationship between YouTube finfluencers and New Zealand's financial advice laws, and whether claiming "this isn't financial advice!" is effective in carving them out of the application of New Zealand's financial advice laws. Overall, the article contends that the mere inclusion of a disclaimer will not necessarily carve a finfluencer's statement out of the definition of "financial advice". Rather, the inquiry would turn on whether an impartial observer would conclude that the finfluencer was providing a "recommendation" or "opinion" in relation to a financial advice product (despite the disclaimer). Ultimately, even if a finfluencer places additional emphasis on the disclaimer included, they run the risk of falling on the wrong side of the line, as the determination turns on a highly fact-specific analysis.