Mary Scholtens QC
Mary Scholtens is an experienced Queen's Counsel who has acted predominantly in the commercial public law area since commencing practice in 1982. She spent ten years in the Crown Law Office before joining the independent bar in 1996. She was made a Queen's Counsel in 2002. As well as a very significant number of judicial review proceedings involving central and local government and a broad range of regulators, she has appeared in public law claims in contract, tort and equity, and in appeals from regulatory bodies. There include acting for IRD in significant tax avoidance cases involving cross - border structured finance transactions, and for the Commerce Commission in relation to the Commission’s determinations of ‘input methodologies’ for regulating the airports services, electricity and gas transmission and distribution sectors. Mary also acts in general commercial and civil disputes and is an accredited mediator.
Mary brings to her advice and representation an appreciation of how government works. She has carried out or been involved in a number of inquiries, including Commissions of Inquiry, inquiries by Parliamentary Select Committees, and the District Court on an Electoral Petition. Mary has been appointed as amicus curiae in a number of cases before the High Court, Court of Appeal and Supreme Court. Mary is a member of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
Qualifications and Career
- 1982 - LL.B (Victoria University of Wellington)
- 1983 – Admitted to the bar (February)
- 1998 - Laws 518 (Administrative law)
- 1999 - Laws 581 (Advanced legal study)
- 2002 – Appointed 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 in a criminal/human rights private practice in central London.
Recent and Notable Cases
- Counsel for Commerce Commission in appeals from the Commission’s determinations of ‘input methodologies’ for regulating the airports services, electricity and gas transmission and distribution sectors, and related judicial reviews. Wellington International Airport Ltd v Commerce Commission  NZHC 3289, 11 December 2013, Clifford J, Mr R Davey and Mr R Shogren; Wellington International Airport Ltd v Commerce Commission CIV-2011-485-001031, CIV-2011-485-001040, CIV-2011-485-001042, CIV-2011-485-000264, 22 December 2011, Clifford J; Transpower New Zealand Ltd v Commerce Commission CIV-2011-485-001032, 4 November 2011, Clifford J; Vector Ltd v Commerce Commission CIV-2011-485-000536,26 September 2011, Clifford J.
- Counsel for Inland Revenue Commissioner in the tax avoidance challenge by BNZ relating cross-border structured finance transactions. BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 24 NZTC 23,582
- 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")  1 NZLR 95 (CA); Ellerslie Park Holdings v Attorney-General  NZSC 44; (2006) 18 PRNZ 376; North Shore City Council v Attorney General (“The Grange”)  1 NZLR 178 (CA); North Shore City Council v Attorney General (“The Grange”)  3 NZLR 341 (SC).
- 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 aborted at its commencement as information had effectively been 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 – separate challenges for each year since 2003 (High Court, 2007; CA and High Court 2009; Supreme Court 2011); 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  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  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  DCR 322.
- Counsel for Destination Marlborough in proceedings brought by the incumbent contractor challenging the tender process in which it had been unsuccessful (High Court): Challis v Destination Marlborough Trust Board Inc  2 NZLR 107
- Reviewer in a number of public and private 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 led 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  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  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  NZAR 865;  NZFLR 852
- 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  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);  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;  1 NZLR 1 (Privy Council)
- 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)
- Senior counsel for the Minister of Housing in judicial review proceedings challenging 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  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  1 NZLR 741; Auckland City Council v. Auckland Electric Power Board & Ors (High Court, 1993).
- 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  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  1 NZLR 106; in an unopposed patent extension application re Captopril (High Court): ER Squibb & Sons Inc v. Pacific Pharmaceuticals Ltd  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  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  1 NZLR 1 (HC, CA), 641 (PC) Included the influential interlocutory issue of cross-examination of Ministers;  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  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  2 NZLR 606
- 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)