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Supreme courts roundup, 2 to 8 February 2018

08 February 2018

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Nuku v District Court at Auckland [2018] NZSC 7 (8 February 2018). Application for leave to appeal from Court of Appeal [2016] NZCA 179 dismissed.

W v Family Court at North Shore [2018] NZSC 10 (8 February 2018). Application for leave to appeal from Court of Appeal [2017] NZCA 481 dismissed.

Complainant A v New Zealand Law Society [2018] NZSC 8 (7 February 2018). Application for recall of Supreme Court judgment [2017[ NZSC 158 dismissed.

M v R [2018] NZSC 4 (2 February 2018). Application for leave to appeal against conviction under section 195 Crimes Act 1961 granted. Approved question is whether the applicant should have been convicted on that count.

De Vries v Bartercard Exchange Ltd [2018] NZSC 2 (2 February 2018). Application for recall of Supreme Court judgment [2017] NZSC 186 dismissed.

Kinraid v R [2018] NZSC 3 (21 December 2017, reissued 2 February 2018). Application for leave to appeal from Court of Appeal [2017] NZCA 443 dismissed.

High Court of Australia

No decisions released during this period.

Supreme Court of Canada

Williams Lake Indian Band v Canada 2018 SCC 4 (2 February 2018). Appeal from Federal Court of Appeal allowed (majority).

Aboriginal law — Land claims — Crown — Fiduciary duty — Indian reserves — Band seeking to establish statutory specific claim and obtain compensation for losses of lands within its traditional territory pre‑empted by settlers before Confederation — Whether before Confederation Imperial Crown owed to band, and breached, legal obligation under colonial legislation to protect lands from pre‑emption and set them aside as reserve — Whether after Confederation federal Crown owed, and breached, fiduciary obligation to set aside pre‑emptions and allocate lands as reserve — Framework for determining whether Crown owed and breached fiduciary obligation — British Columbia Terms of Union, R.S.C. 1985, App. II, No. 10, art. 13 — Specific Claims Tribunal Act, S.C. 2008, c. 22, s. 14(1) (b), (c).

Aboriginal law — Land claims — Crown liability — Band seeking to validate statutory specific claim based on pre‑Confederation breaches against federal Crown — Whether pre‑Confederation legal obligation alleged to have been breached was legal obligation of Crown for which federal Crown assumed responsibility — Extended meaning of “Crown” — British Columbia Terms of Union, R.S.C. 1985, App. II, No. 10, art. 13 — Specific Claims Tribunal Act, S.C. 2008, c. 22, s. 14(2) .

Administrative law — Judicial review — Boards and tribunals — Standard of review applicable to Specific Claims Tribunal’s decision to validate band’s claim — Whether expanding upon Tribunal’s reasoning constitutes permissible supplementing of Tribunal’s reasons — Specific Claims Tribunal Act, S.C. 2008, c. 22, s. 14 .

Quebec v Caron 2018 SCC 3 (1 February 2018). Appeal from Court of Appeal for Quebec dismissed.

Workers’ compensation –– Human rights –– Disability rights –– Return to work –– Duty to accommodate –– Worker, victim of employment injury, requested that employer’s duty to reasonably accommodate pursuant to Quebec Charter of human rights and freedoms be taken into account in determining availability of suitable employment –– Employer’s duty to reasonably accommodate worker with disability not expressly imposed by applicable legislative scheme –– Whether employer’s duty to reasonably accommodate in accordance with Quebec Charter applies to workers whose disability is caused by employment injury –– Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, ss. 236, 239 –– Charter of human rights and freedoms, CQLR, c. C‑12, ss. 10, 16.

Legislation –– Interpretation –– Human rights –– “Charter values” interpretive principle –– Legislative scheme entitling workers whose disability is caused by employment injury to return to work with employer –– Employer’s duty to reasonably accommodate worker with disability not expressly imposed by applicable legislative scheme –– Whether legislative scheme should be interpreted to include duty to reasonably accommodate in accordance with Quebec Charter –– Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, ss. 236, 239 –– Charter of human rights and freedoms, CQLR, c. C‑12, ss. 10, 16.

Administrative law –– Boards and tribunals –– Commission des lésions professionnelles –– Judicial review –– Standard of review applicable to Commission’s decision refusing to apply employer’s duty to reasonably accommodate in accordance with Quebec Charter –– Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, ss. 236, 239 – Charter of human rights and freedoms, CQLR, c. C‑12, ss. 10, 16.

Hong Kong Court of Final Appeal

Secretary for Justice v Wong Chi Fung FACC8/2017 (6 February 2018). Appeals from Court of Appeal allowed.

Criminal law – Unlawful assembly – Sentence - Appeals - Appellants found guilty of taking part in unlawful assembly – Power of Court of Appeal to review facts on a review of sentence – Weight to be given to civil disobedience and exercise of constitutional rights as motive in sentencing.

Hong Kong Special Administrative Region v Leung FACC5/2017 (1 February 2018). Appeal from Court of First Instance dismissed.

Jurisdiction – Legislative Council chamber – Appellant involved in demonstration and attempted entry of Legislative Council complex – Council chairman invited police to enter complex and appellant arrested for obstruction – Grounds upon which police may lawfully enter and perform policing duties in precincts of Legislative Council chamber.

Low Siu Wa v Employees Compensation Assistance Fund Board FACV12/2017 (31 January 2018). Appeal from Court of Appeal allowed.

Employment – Personal injury – Insurance coverage - Carpenter injured in course of employment with interior design company obtained judgment against employer for compensation and damages – Employer wound up as insolvent and failed to make payment – Employer’s insurance policy provided that a policy was in force “in relation to” an employee at time of injury – Employer’s principle business interior design with construction workers executing designs not regarded as employees and construction workers not listed for insurer - Insurer refused to pay under policy and stated that not “in relation to” employee – Whether appellant covered by insurance policy.

Supreme Court of Ireland

Minister for Justice v O’Connor [2018] IESC 3 (1 February 2018). Successful application for leave to appeal from High Court.

European arrest warrants – United Kingdom – Likely impact of Brexit – Surrender to UK of person who is subject of a European arrest warrant – Effect of notice under Article 50 of Treaty of European Union – Surrender of rights as European Union citizen.

Judicial Committee of the Privy Council

No decisions released during this period.

Singapore Court of Appeal

Public Prosecutor v Lam Leng Hung [2018] SGCA 7 (1 February 2018). Questions posed in criminal reference answered.

Criminal law – Interpretation – Criminal breach of trust – Punishment – Judicial interpretation – Legislative action – Section 409 Penal Code – Does “in the way of his business as … an agent” refer only to a person who is a professional agent – Is a director of a corporate or governing board member or key officer of a charity entrusted with property or any dominion over property so entrusted in the way of his business as an agent for the purposes of section 409?

Supreme Court of the United Kingdom

HM Inspector of Health and Safety v Chevron North Sea Ltd [2018] UKSC 7 (8 February 2018). Appeal from Court of Sessions Inner House dismissed.

Employment – Procedure – Evidence – Employment Tribunal hearing appeal under section 24 Health and Safety at Work Act 1974 by a person on whom an improvement notice or prohibition notice has been served – Whether Tribunal is entitled to take into account evidence which was not known and could not reasonably have been known to the inspector at the time of issuing the notice.

Advocate General for Scotland v Romein [2018] UKSC 6 (8 February 2018). Appeal from Court of Sessions Inner House dismissed.

Citizenship – Whether section 4C of British National Act 1981 is of potential application to all children born before 1983 of daughters of men who emigrated from the UK to countries outside Ireland and the Commonwealth.

B v Secretary of State for the Home Department [2018] UKSC 5 (8 February 2018). Appeal from Court of Appeal dismissed.

Immigration – Deportation – Detention – Respondent entered UK illegally - Arrested in connection with alleged terrorist-related activity and detained under anti-terrorism powers – Detained pending deportation -  Subsequent finding that no lawful basis for detention – Whether still a power to grant bail and impose bail conditions in respect of respondent under Immigration Act 1971.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (8 February 2018). Appeal from Court of Appeal allowed..

Negligence - Police – Immunity – Injury to passers-by – Passer-by knocked to ground while police arresting suspect on street – Whether Hill v Chief Constable of West Yorkshire Police immunity protects police from claims when injury negligently caused to passers-by in course of their core duties – Application when relevant police act was a positive act.

R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3 (8 February 2018). Appeal from Court of Appeal dismissed (majority)..

Evidence – Admissibility – Wikileaks cable - Former inhabitants of Chagos Archipelago (BIOT) removed by UK government between 1968 and 1973 - Challenge to decision by Secretary to impose no take marine protected area in BIOT alleging decision motivated by improper purpose – Evidence relied upon primarily a US diplomatic cable published by Wikileaks – Whether cable admissible.

Supreme Court of the United States

No decisions released during this period.

Last updated on the 9th February 2018