New Zealand Law Society - Supreme Court roundup 2-8 April

Supreme Court roundup 2-8 April

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

NZ Supreme Court

Sexual offences relating to young girl

Andrews v R [2021] NZSC 32 (7 April 2021)

Unsuccessful leave application – A convicted after trial of sexual offending relating to a young girl, C - Appealed unsuccessfully to CA against conviction on the more serious of the charges, three charges of sexual violation - Solicitor-General’s successfully appeal against sentence was successful – DC sentence of nine years and six months’ imprisonment on a representative charge of rape set aside and sentence of 11 years and six months’ imprisonment substituted – A sought leave to appeal to SC against conviction and sentence – No questions of general or public importance – much turned on particular facts – No appearance of miscarriage of justice – Application dismissed.

High Court of Australia

Enterprise agreement, union merger, abuse of process

Victoria International Container Terminal v Lunt and ors [2021] HCA 11

Unsuccessful appeal from Full Federal Court - Victoria International Container Terminal Limited (VICT), applied to Fair Work Commission (Commission) for approval of Victoria International Container Operations Agreement 2016 (Enterprise Agreement) - Application made with support from Maritime Union of Australia (MUA), which later merged with other unions to form Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) - Commission approved Enterprise Agreement - Following approval, MUA brought several proceedings against VICT relying on Enterprise Agreement - However, MUA became dissatisfied with Enterprise Agreement and began publicly to criticise it – L, a longstanding MUA member, had been employed by VICT - He commenced proceedings seeking to quash Commission approval of Enterprise Agreement - VICT sought summary dismissal of the proceedings, arguing they were an abuse of process because the CFMMEU (as it now was) was true moving party behind proceedings, with L being deployed as a "front man" to conceal CFMMEU's role - MUA and CFMMEU funded proceedings and were found to have been unwilling to bring proceedings in their own names because of perceived risk that they would be refused relief on discretionary grounds, including because MUA acquiesced in approving Enterprise Agreement - L maintained he sought to quash Enterprise Agreement approval because of concerns about its conditions and the manner in which it was made – On appeal to HCA, VICT argued that to permit L to pursue proceedings would bring administration of justice into disrepute, emphasising lack of candour involved in L’s attempt to conceal CFMMEU role in the proceedings - HCA dismissed appeal, saying choosing L as plaintiff would not have prevented, in any real way, Court scrutiny court of role MUA played in making Enterprise Agreement – HCA said powers relating to abuse of process not to be exercised to deter or punish want of candour on the part of a litigant of the kind revealed in this case - Exercised to protect integrity of court's own processes - In any event, a stay or summary dismissal of proceedings should not be ordered where there were less drastic means to protect Court process integrity - With arrangements between L and CFMMEU now being well known, administration of justice could not be brought into disrepute by allowing the proceedings to continue to a determination on their merits – Appeal dismissed.

Judicial Committee of the Privy Council

Loan, guarantee, delayed decision

Pickle Properties v Plant [2021] UKPC 6

Unsuccessful appeal from Virgin Islands CA - Pickle Properties (PP) and P provided joint and several guarantee to a bank in support of Loan advancement £4.25 million to Newmarket Properties (Guernsey) Limited. Guarantee capped at £500,000 plus interest - Security granted in support of the loan also included a legal charge in respect of two properties borrower owned - When borrower failed to repay the loan, bank enforced its security by pursuing sale of the properties - Properties sold for £475,000 to two companies in which P held an interest - Bank then demanded payment under the guarantees from PP and P - P ignored bank’s claim - P disputed certain of the sums demanded and ultimately paid £625,000 to the bank in settlement of its claim - S, who was the agent of a trust for the benefit of his family which owned P’s shares, was aware of the key facts at the relevant times, including P’s interest in purchasing the properties, and had declined an invitation to participate in the purchase himself – P brought a claim seeking a contribution from PP towards one half of settlement sum paid to the bank, plus legal costs and interest - Trial judge ruled for P and awarded relief – PP’s appeal to CA was dismissed – P appealed to PC – PC said necessary for PP to show that trial judge’s judgment could not be relied on because of excessive delay in its production and that CA failed in its duty to scrutinise with care a judgment which had been so delayed. – PC said no proper basis for calling judge’s conclusions into question on the ground of delay – Also CA did not fail in their review of the delayed judgment – Appeal dismissed.

False imprisonment, alleged kidnapping

Betaudier v Attorney-General of Trinidad and Tobago [2021] UKPC 7

Successful appeal from Trinidad and Tobago CA - On 24 December 2005, B, a serving Lance Corporal in the Trinidad and Tobago Defence Force (TTDF), driving a TTDF vehicle with S - Officers of both the police and the TTDF stopped his vehicle suspecting transporting arms and ammunition B in possession of his licensed service firearm and $7,000 in cash, and S in possession of an unlicensed firearm - B arrested on suspicion of kidnapping and S arrested for unlawful possession of firearms and ammunition - After the arrests, B and S conveyed to the Central Police Station in Port of Spain - B taken to the Anti-Kidnapping Unit (AKU) on 25 December 2005 for interview - On evening of 26 December 2005, head of the AKU reviewed his file was reviewed and, after a further interview, B told that he was free to go - On 22 December 2009, B filed and served a claim in HC seeking damages for false imprisonment arising from his arrest, detention and imprisonment from 24 December 2005 to 26 December 2005 – HC dismissed claim on 28 March 2013 – CA majority dismissed B’s appeal, by a majority, on 10 March 2017 - B appealed to PC having been granted final leave to appeal on 16 October 2017 – PC agreed with dissenting CA judge who said police constable had no information that B had any involvement in any of the alleged kidnappings -Had no information that in any of those kidnappings a ransom was paid, which was a matter critical to the formation of his suspicion, let alone any information that it was paid in TT$100 notes or in circumstances where it might be reasonable to believe that someone involved in the kidnapping would still have the ransom paid in his possession in an envelope - Also relevant that Major M, a TTDF member did not suspect B of involvement in kidnapping. As he put it, “there must be something more and that something is missing from this case”.

United States Supreme Court

Copyright, software, fair use

Google LLC v Oracle America Inc (18-956) (4 April 2021)

On review from Federal Circuit - Oracle America, Inc., owned copyright in Java SE, a computer platform that used Java computer programming language - In 2005, Google acquired Android and sought to build a new software platform for mobile devices - To allow millions of programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from the Java SE program - Copied lines part of a tool called an Application Programming Interface (API) - API allowed programmers to call upon prewritten computing tasks for use in their own programs – During protracted litigation, lower courts considered (1) whether Java SE’s owner could copyright the copied lines from the API, and (2) if so, whether Google’s copying constituted a permissible “fair use” of that material freeing Google from copyright liability - Federal Circuit said copied lines were copyrightable - After a jury then found for Google on fair use, the Federal Circuit reversed, concluding that Google’s copying was not a fair use as a matter of law - Before remand for trial on damages, SC agreed to review Federal Circuit’s determinations as to both copyrightability and fair use – SC said : Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law - Because exclusivity might trigger negative consequences, Congress and the courts have limited the scope of copyright protection to ensure that a copyright holder’s monopoly did not harm the public interest - Computer programs differed to some extent from many other copyrightable works because computer programs always served a functional purpose - Because of these differences, fair use had an important role to play for computer programs, providing a context based check that kept copyright monopoly afforded to computer programs within its lawful bounds - Nature of work at issue here favoured fair use - Copied lines of code part of a “user interface” that provided a way for programmers to access prewritten computer code through the use of simple commands – Federal Circuit decision reversed.

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