New Zealand Law Society - Courts roundup 26 May - 1 June 2022

Courts roundup 26 May - 1 June 2022

Courts roundup 26 May - 1 June 2022

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

New Zealand Supreme Court

Self-represented litigant, fitness to stand trial

W (SC 14/2021) v R [2022] NZSC 66 (25 May 2022)

Unsuccessful leave application – Self-represented W convicted at 2016 trial of meeting young person after grooming, two charges of supplying cannabis to person aged under 18 years, and doing indecent act on young person - W appealed unsuccessfully against conviction to CA – Sought leave to appeal to SC –

SC noted procedural history, including various delays – Regarding proposed appeal W said not fit to stand trial due to difficulties following  head injuries sustained in 1997 – Also said did not receive appropriate support measures with result that trial unfair – Also wanted to argue did not receive effective first CA appeal partly because of lack of support – Finally raised issues regarding trial publicity and disclosure –

CA had said that W’s lawyer on appeal said neither trial Judge nor trial counsel raised issues about W’s ability to participate in trial at the time - Counsel’s submission to CA was W’s needs “so complex that laypeople would be likely to miss them and attribute any unusual behaviour to a bad personality” – CA rejected submission –

SC said proposed appeal would largely involve going over ground CA dealt with – Application dismissed.

Self-represented litigant, judgment recall

Dunstan v Riddell [2022] NZSC 67 (26 May 2022)

Unsuccessful recall application – Self-represented D sought recall of SC 17 May 2022 judgment, her leave application – CA dismissed application to review Deputy Registrar’s decision –

SC said recall application primarily attempted to re-argue leave application - Nothing advanced which would warrant recall of decision not to grant leave – Application dismissed, Registrar directed not to accept for filing any further applications in relation to matter.

Attempted murder, three strikes regime

Matara v R [2022] NZSC 68 (27 May 2022)

Unsuccessful leave application - In 2016, M living in boarding house - In early hours of 7 May 2016, invited victim, a fellow resident, onto deck for cigarette - Some conversation but no argument- Victim went into kitchen to make cup of tea – M followed and shot him twice with pump-action shotgun - Victim seriously injured and lucky to survive - Serious ongoing health issues -  M convicted at trial of attempted murder - Sentenced to 10 years two months’ imprisonment without parole under s 86C Sentencing Act 2002 - “three strikes” provision –  

In 2021, M successfully appealed to CA against HC s 86C ruling - In light of SC ruling  CA substituted 40 percent MPI – M sought leave to appeal CA decision to not also reduce sentence –

As CA said, effect of SC decision that offender should be sentenced according to ordinary sentencing principles - CA did so, reducing MPI, taking into account M’s mental health issues – Three strikes legislation being repealed – No injustice arose here – Application dismissed.

New Zealand Court of Appeal

Contract, damages, interest

IAG NZ Ltd (IAG) v QBE Insurance (Australia) Limited (QBE) [2022] NZCA 208 (25 May 2022) – Kós P, French and Collins JJ

Successful appeal and cross-appeal - Defective repairs to home damaged in Christchurch earthquakes – Homeowners (S) claimed against insurer IAG, repair company, project manager monitoring repairs (Hawkins) and Hawkins’ insurer QBE – HC awarded S the cost of remedial work assessed at date of judgment with interest from 2015 – Awards against: (i) repairer for full sum; (ii) Hawkins for full sum (breached assumed responsibilities to ensure payments only for contracted work to required standard);(iii) IAG for failures in appointing builder, setting scope of work and ensuring adequate monitoring and payment processes by Hawkins – also breached policy obligation to meet repair costs to “as when new” standard; (iv)(cross-claim) Hawkins liable to IAG for certification failures under indemnity clause in project management contract – IAG appealed against refusal to allow full indemnity against Hawkins and award of interest to S – CA found Hawkins’ primary role was administrative and quality assessment role was very limited – Meaning of “completion” - Approach to “naked eye test” - Hawkins liable in respect of all key defects - QBE’s cross-appeal allowed in relation to certification of final repair payments - IAG appeal allowed against award of pre-judgment interest.

Care of children, psychologist reports under s133 COCA, predetermination (login required)

X v Family Court at Auckland [2022] NZCA 207 (24 May 2022) Cooper, Collins and Goddard JJ

Application for parenting order by maternal grandmother under s48 COCA – Children in care of father and stepmother following death of mother - Significant conflict in care arrangements – Parties disagreed about whether psychological report under s133 should be obtained – FCJ directed report and prepared brief for psychologist at issues conference – On X’s application, HC set aside direction finding Judge predetermined and failed to consider children’s views on decision – Second s133 direction made by another FCJ also set aside by HC – CA considered: (i) whether before making order that report be prepared Judge must ascertain and take into account views of affected child/ren; (ii) appropriateness of judicial review of s133 orders; (iii) did FCJ predetermine making of first s133 order; (iv) in what circumstances could party seek judicial review of reports by lawyer for the child – Appeal against first HC judgment allowed – Proceeding remitted to FC to determine whether s133 report should be obtained.

Criminal law and procedure, Governor-General’s reference, jurisdiction

Watson (W) v R [2022] NZCA 204 (25 May 2022) Kós P, Gilbert and Collins JJ

Jurisdiction to consider further ground of appeal in reference of convictions for murder of H and S to CA under s406(1) Crimes Act – Reason stated for reference was to consider reliability of forensic evidence concerning hairs found on W’s boat said to belong to H – Proposed additional ground of appeal related to identification of W by water-taxi driver who delivered H, S and third person to yacht – Report by IPCA concluded photo montage and viewing by W “fell well short of best practice” - Jurisdictional issue whether additional ground may be advanced to be considered in existing reference – CA considered history of Royal Prerogative, legislation including s406 and relevant caselaw in the United Kingdom, Australia and New Zealand – Broad principles in R v Chard (UK) applied – Proposed identification ground may be considered at appeal.

Resource management, subdivision consent

Brial (interested party) v Queenstown Lakes District Council [2022] NZCA 206 (24 May 2022) Cooper P and Collins JJ

Unsuccessful application for leave to appeal – Bs sought consent to subdivide 80ha of land into 2 lots and cancel pre-existing consent notice preventing additional dwellings on land – Discretionary activity status under operative Queenstown Lakes District Plan – Proposal in conflict with proposed policy to require 80ha minimum net site area within Wakatipu Basin rural amenity zone (Policy) – In interim decision EnvC dealt with effects on landscape and rural amenity values and objectives and policies in planning instruments – Court satisfied proposal could be properly consented to notwithstanding conflict with Policy – HC rejected argument that Policy created environmental bottom line in terms of King Salmon and that EnvC had overlooked need to deal with consent notice - Proposed appeal not seriously arguable – EnvC intended to deal with consent notice at further hearing – Minimum lot size under Policy not to be regarded as environmental bottom line – King Salmon distinguished – EnvC approach well open to it.

Judicial review, resource management, heritage and amenity values

Hunter (H) v Auckland Council [2022] NZCA 205 (24 May 2022) Kós P, Courtney and Collins JJ 

Unsuccessful appeal against decision declining review of grant of resource consent to restore, re-site and extend heritage villa in Herne Bay – Project would reduce H’s amenity value by shading northern side of property - Hearing Panel rejected conclusion of independent planner that proposal would have unacceptable effect on residential value of H’s property – Adverse shading was moderate, proposal consistent with neighbourhood’s existing and planned suburban built character and amenity levels at H’s property already low – Nuanced approach in objectives and policies in Unitary Plan Historic Heritage Overlay – HC decision upheld.

Sentence, preventive detention (login required)

R v R [2022] NZCA 202 (24 May 2022) French, Venning and Moore JJ

Partly successful appeal against sentence for kidnapping and sexual violation – Guilty plea - Offending 16 months after release from prison term for sexual violation – HCJ fixed determinate sentence of 7 years 8 months imprisonment with MPI of 5 years 2 months – R likely to commit qualifying sexual offence on release - Preventive detention appropriate – Imposed MPI of 7 years 8 months – CA confirmed sentence of preventive detention but reduced MPI to 5 years 2 months.

Supreme Court of Canada

Canadian Charter, multiple murders, sentencing, parole eligibility

R v Bissonette [2022] SCC 23 (27 May 2022)

Unsuccessful appeal from Quebec CA - In January 2017, armed B entered Great Mosque of Québec and opened fire on worshippers - Killed six people and seriously injured five others - At trial, pleaded guilty to all charges, including six counts of first degree murder –

Sentence for first degree murder in Canada imprisonment for life without parole possibility for 25 years – If found guilty of multiple first degree murders, same 25-year sentence applied to each murder - Offenders served each sentence concurrently - Here prosecutor asked judge to apply s 745.51 Criminal Code - Allowed periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). - Would have meant B served six consecutive parole ineligibility periods of 25 years, for total 150 years – B’s counsel said provision unconstitutional - Trial judge agreed – Ordered B to serve five 25-year sentences concurrently, as well as 15 years for sixth first degree murder to be served consecutively, for total 40-year ineligibility period –

B appealed sentence to Quebec CA - Also found provision unconstitutional, but ordered B to serve six sentences concurrently, for total ineligibility period of 25 years - Crown appealed to SC -

SC unanimously dismissed appeal – Chief Justice said s 745.51 violated s 12 Canadian Charter of Rights and Freedoms in unjustified way - Section 12 guaranteed right not to be subjected to cruel and unusual punishment - For multiple murders, s 745.51 allowed imprisonment without possibility of parole for 50, 75, 100 or even 150 years - Provision “authorises a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute” said Chief Justice –

SC said life sentence without realistic possibility of parole presupposed offender beyond redemption and could not be rehabilitated - Degrading in nature and incompatible with human dignity - Amounted to cruel and unusual punishment - “By depriving offenders in advance of any possibility of reintegration into society, section 745.51 shakes the very foundations of Canadian criminal law”, Chief Justice said – Appeal dismissed.

Judicial Committee of the Privy Council

Arbitration, jurisdiction, enforcement

Gol Linhas Aereas S.A (formerly VRG Linhas Aereas S.A.) (Repondent) v MatlinPatterson Global Opportunities Partners (Cayman) II L.P. and ors (Appellants) [2022] UKPC 21

Unsuccessful appeal from Cayman Islands CA - Respondent obtained arbitral award (Award) against Appellants - Award arose from acquisition of Brazilian airline by entity - GLA legal successor under Brazilian law from certain subsidiaries of First and Second Appellants - Third Appellant general partner of First and Second Appellants, referred to as MP Funds - Acquisition took place under Share Purchase and Sale Agreement dated 28 March 2007 governed by Brazilian law (PSA) - PSA contained arbitration agreement (AA) - Appellants not parties to PSA but MP Funds signatories to "Aditamento" to PSA containing non-compete obligations -

MP Funds challenged arbitral tribunal jurisdiction claiming not parties to PSA - Tribunal found against them - Said had jurisdiction over MP Funds because parties to Aditamento - Then made Award against them, amongst others - MP Funds sought to set aside Award through Brazilian courts but were unsuccessful, having exhausted appeal rights –

Respondent obtained permission ex parte to enforce Award against MP Funds in Cayman Islands on 26 October 2016 - Permission set aside on MP Funds’ application on 19 February 2019 - Cayman Islands CA set order aside on 11 August 2020 - MP Funds appealed to PC as of right –

Said: (i) MP Funds not estopped from denying they were parties to AA and/or that issues in arbitration beyond AA scope; (ii) CA wrong to find that Award enforcement consistent with Cayman standards of due process and public policy; (iii) claim for tortious damages (which founded Award) not within scope of  submission to arbitration; and (iv) CA failed to consider whether AA scope limited to non-compete obligations in Aditamento –

PC dismissed appeal – Said relevant international convention required CICA to enforce Award.

United Kindom Supreme Court

Public body, costs award against, competition law

Competition and Markets Authority v Flynn Pharma and anor; Competition and Markets Authority v Pfizer Inc and anor [2022] UKSC 14 (25 May 2022)

Successful appeals from CA – CMA public body that investigated companies suspected of breaching competition law and penalised those found to have done so – F and P both pharmaceutical companies CMA fined for breaching Competition Act 1998 regarding supply of prescription epilepsy drugs - Both companies appealed to the Competition Appeal Tribunal (CAT) challenging CMA’s decision - CAT allowed appeals in part, set aside part of CMA’s decision, and remitted case to CMA for reconsideration - CAT also ordered CMA pay companies some appeal costs (CAT’s Costs Ruling) under Rule 104(2) Competition Appeal Tribunal Rules 2015 (2015 Rules).

CA set CAT ruling aside and ordered there be no costs order for CAT appeal  - CA said CAT disregarded general legal principle based on line of cases that where no default position expressed in wording of power to award costs, starting point was no costs order should be made against public body such as CMA when it was unsuccessful bringing or defending proceedings when exercising statutory functions - Starting point could be departed from where there was good reason, such as unreasonable conduct - No such factor here -

Companies appealed to SC, saying there was no such legal principle – SC unanimously allowed appeals – Said CAT generally applied starting point in Competition Act 1998 appeals that unsuccessful party paid successful party’s costs (“costs follow the event”) – Said no generally applicable principle that public bodies should enjoy protected costs position when they lost  cases - Principal line of cases supported was, rather, that important factor when determining costs awards was risk of chilling effect on public body conduct if costs orders routinely made against it when unsuccessful, even where acted reasonably - Whether real risk of chilling effect depended on facts and circumstances of public body in question and nature of  decision defended – Risk could not be assumed just because respondent to appeal was body acting in public interest – On whether CAT correct to adopt “costs follow the event” starting point, SC said practice well-established when 2015 Rules introduced preserving CAT’s broad costs discretion conferred by earlier versions of those rules – Also good policy reasons to adopt starting point of costs follow event - Right that CMA subjected to discipline associated with having to pay successful Appellant’s costs if ultimately CAT concluded CMA’s actions not well–founded – Appeals allowed.

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