New Zealand Supreme Court
Charitable or public gift, tax credit
Commissioner of Inland Revenue v Church of Jesus Christ of Latter-Day Saints Trust Bord and anor  NZSC 102 (30 September 2020)
Unsuccessful leave application – Commissioner (CIR) challenged payments to the Trust Board (the Board) associated with missionaries Church selected to proselytise overseas - CIR said payments not within requirements of s LD 1 of the Income Tax Act 2007, which provided that donor of “a charitable or other public benefit gift” entitled to a tax credit – Payments came from missionaries’ New Zealand-based families and applied to various church activities - common ground all payments voluntary, were not refunded, and, once received, Board could apply payments at its sole discretion towards Church activities of the Church and would not be applied directly or indirectly towards missionary work performed overseas - So some attributes of a gift were met - However, CIR said, as donors received a material benefit from the payments, they did not meet gift requirements for s LD 1 purposes – HC said some payments met s LD1 requirements – On appeal, CA said all payments met requirements – CIR sought leave to appeal CA ruling – Questioned approach CA took unduly legalistic approach to interpreting tax statute – SC accepted correct approach to tax statutes a matter of public importance and commercial significance – However, this case not appropriate for addressing issue – Situation here intensely fact-specific – Application dismissed.
Self-representation, appeals out of time, strike out
Underhill and anor v Coca-Cola Amatil (NZ) Ltd  NZSC 103 (30 September 2020)
Unsuccessful leave application – U’s represented themselves - Involved in protracted employment dispute with CCA - Failed in the Employment Relations Authority because claim was out of time – Appealed to the Employment Court (EC) - CCA initially argued that Us were independent contractors, but conceded in EC that they were employees – EC said claim not out of time – U’s obtained a modest award - Unsatisfied with the extent of their win, they sought leave to appeal to CA - 10 days out of time - CA granted leave to appeal out of time – U’s required to file appeal by 20 December 2018 - Almost nine months later, they applied for further time extension of time to appeal – CA saw delay as lengthy and not satisfactorily explained, but countervailing prejudice to CCA not significant – CA granted extension subject to timetabling directions which were to be “strictly observed” – U’s did not comply with directions - Though required to apply for a hearing date, file and serve the case on appeal, and file written submissions by 28 February 2020, they failed to do so - Two months later, on 29 April 2020, CA notified them that it was considering striking out the appeal – U’s said they had “previously filed [the required] information” and did not understand they had to file anything further – CA not satisfied with this explanation - No guarantee the matter would ever be ready for hearing given U’s default history of defaults - CA struck out appeal – U’s applied to SC for leave to appeal against CA decision - Also filed submissions challenging the substance of the Employment Court decision they sought to appeal in the Court of Appeal - Regarding CA strike out said not able to apply for a hearing date and file relevant documents as CA directed because they were not told how to do so – SC said proposed strike-out appeal did not raise a matter of general or public importance - CA applied settled principles to the facts in this case - Said courts should not be quick to deny self-represented laypersons access to justice - CA very much alive to U’s position and gave much leeway – But no evidence that they endeavoured to seek legal advice, as CA registrar advised them to do, whether by applying for legal aid or seeking advice from publicly-funded services such as a community law centre – Application dismissed.
Costs to litigant in person, criminal cases
Timoti v Police  NZSC 104 (1 October 2020)
Unsuccessful leave application – T charged with assaulting a police constable with intent to obstruct her in the execution of her duty and two charges of resisting a police constable in the execution of her duty - Delays in bringing case to trial and, ultimately, the Police applied to DC for leave to withdraw the charges - Leave granted - T applied to DC for costs award against the Police – DC rejected application – T appealed to HC - Appeal dismissed - Sought leave to appeal directly to SC from HC decision – SC had to be satisfied were exceptional circumstances justifying such a direct appeal, in addition to being satisfied that the criteria for an appeal to SC met – SC recently considered costs to litigant in person issue in civil proceeding context - Rule that costs could not be awarded to a self-represented litigant confirmed - No basis for distinguishing that case when considering criminal cases - No risk of a miscarriage of justice - Application dismissed.
Right of second appeal, exhaustion of appeal rights
Terry v Police  NZSC 105 (2 October 2020)
Unsuccessful leave application – JPs convicted and sentenced T to fine of $1,500 for failing to stop when followed by a vehicle displaying flashing blue and red lights, under s 52A(1)(a)(ii) of the Land Transport Act 1998 – DC dismissed his appeal against conviction but allowed appeal against sentence - T then unsuccessfully applied for leave to appeal to HC - HC said no general or public importance on the appeal and no risk of a miscarriage of justice – T then applied to CA for leave to appeal - Deputy Registrar declined to accept his application for leave because T had exhausted his appeal rights under the Criminal Procedure Act 2011 (CPA) – CA Judge declined T’s application for review of Deputy Registrar’s decision – T applied to SC leave to appeal against both DC and CA Judge’s decisions - SC said s 237 of CPA gave a convicted person the right of a second appeal against conviction, with leave of the second court – Here, under s 230(1)(a), DC first appeal court – HC under s 238(a), second appeal court - Under s 242, every HC determination of a second appeal was final – Therefore, no jurisdiction for SC to consider appeal against DC decision or CA Judge’s decisions – Application dismissed.
Supreme Court of Canada
Insolvency, anti-deprivation rule
Chandos Construction Ltd v Deloitte Restructuring Inc  SCC 25 (2 October 2020)
Unsuccessful appeal from Alberta CA - Chandos Construction (CC) signed a contract with Capital Steel (CS) for almost $1.4 million - Part of the contract said CC would get money if CS went bankrupt - Contract would be frozen and CS would have to pay CC for anything it lost, plus extra for overhead and profit - Contract also said CS would have to pay CC 10% of the contract price (about $140,000) for the inconvenience – CS went bankrupt. At the time, CC owed CS about $150,000 on the contract – CC said CS actually owed CC over $10,000, because of costs and the 10% inconvenience fee that the contract said CS had to pay if it went bankrupt - This added up to more than was left on the contract –The trustee DR asked the court if this was allowed. The application judge said yes – CA majority said no, because the contract broke the “anti-deprivation rule” - Anti-deprivation rule said any part of a contract that took away (that is, deprived the trustee of) some of what the bankrupt company owns is not allowed – SCC majority agreed with CA - said there were two reasons why part of a contract might be found invalid during a bankruptcy - The first where the contract gave some people who are owed money more than their fair share, so they get bigger slices of the pie than they deserved - the “pari passu rule” - Second when part of the pie is taken away so the whole pie is shrunk before it can even be sliced. This was a situation where the anti-deprivation rule covered - Majority said the anti-deprivation rule had been part of Canadian law since the 1870s - Part of “common law” – Bankruptcy and Insolvency Act did not change this - Act’s purpose to make sure the trustee had as much as possible to give to people who were owed money - Anti-deprivation rule helped make sure this happened and stopped people from writing contracts to get around Act rules - When deciding if something broke the anti-deprivation rule, the majority said that courts should look at its effect - They should not look at what the parties wanted, or said they wanted, at the time they came to an agreement - First, it would be hard to know or prove what people wanted if a contract was signed a long time previously. Second, a contract could still have the effect of hurting others who were owed money, even if no one meant for that to happen - However, the majority said the anti-deprivation rule might not be broken where someone agreed to give up physical property (not money) - Agreeing to get insurance, or putting up money (security) as a guarantee for the contract, might also be allowed - The majority said CC not allowed to reduce what it owed to CS by deducting the inconvenience fee amounts – CS did not actually owe CC any money, so there was nothing to deduct – Appeal dismissed.
High Court of Australia
Native title, delegation of functions
Northern Land Council and anor v Quall and anor  HCA 33 (7 October 2020)
Successful appeal from Full Court FCA - In 2016, the NLC made an indigenous land use agreement (ILUA) relating to land and waters at the Cox Peninsula near Darwin – ILUA varied in February 2017 (“ Kenbi ILUA") - In March 2017, the Northern Land Council (NLC) Chief Executive Officer (CEO) signed a certificate purporting to act as NLC delegate, saying NLC certified the application for registration of the Kenbi ILUA under s 203BE(1)(b) of the Native Title Act 1993 and the NLC of the opinion that of s 2 03BE(5) certification requirements met, that all reasonable efforts had been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement had been identified and that those persons had authorised the making of the agreement - Q and F commenced judicial review proceedings in FCA challenging certificate efficacy - Said NLC's certification function under s 203BE(1)(b) not delegable or, if it was delegable, NLC had not validly delegated to the CEO - Primary judge rejected first ground but accepted the second - Result was certificate declared not to amount to certification under s 203BE(1)(b) - NLC and CEO appealed to FCA Full Court – Q and F cross-appealed, saying NLC's certification function not delegable - Full Court allowed the cross-appeal saying s 203BE(1)(b) function could not be delegated - Meant issues in the appeal not determined - NLC and CEO appealed to HC – Said FC erred to say NLC had no power to delegate s 203BE(1)(b) certification function to the CEO - HC unanimously allowed appeal.