New Zealand Law Society - Supreme Court roundup 6-13 May

Supreme Court roundup 6-13 May

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

New Zealand Supreme Court


SKP Inc v Auckland Council and anor [2021] NZSC 37 (5 May 2021)

Recall to amend aspect of judgment.

Feltex, Security for costs, “unless” order

Houghton v Saunders and ors [2021] NZSC 38 (5 May 2021)

Unsuccessful leave application – H represented about 3,600 claimants who invested in shares in Feltex Carpets Ltd (Feltex) following a prospectus issued in May 2004 -  Claimed to have suffered loss from relying on statements in the prospectus - Proceeding was to be heard in two stages, the first being limited to determining whether any breach of the Securities Act 1978 (SCA) or the Fair Trading Act 1986 (FTA) had occurred - Anticipated that if any breach was established, second stage trial would deal with issues of reliance and quantum of loss in respect of each claimant – Both HC and CA said claim failed at stage one - However, appeal to SC partially successful – SC said prospectus contained an untrue statement for the purposes of s 56 SCA and this untrue statement amounted to misleading conduct in breach of s 9 FTA -  SC referred claim back to HC  for stage two trial to determine whether investors suffered because of the untrue statement and whether they were entitled to any remedy under FTA – H required to provide security for costs for stage two trial, which was set down for a five-week hearing scheduled to commence in November 2019 - HC ordered security of $1.65 million to be provided by 12 July 2019 - Required security was not provided and November 2019 fixture, together with a subsequent fixture, had to be vacated –

S applied to strike out the claim - HC ordered proceedings be struck out with effect from 14 July 2020 unless, by 13 July 2020, security was provided and senior counsel for H confirmed claimants were adequately resourced to prepare for and present all aspects of their stage two claims – H unsuccessfully appealed to CA against the HC  “unless order” – Various alternative compliance proposals put forward – CA said difficult to identify any proper basis on which failure to comply with the unless order could be excused, or on which relief from the consequences of non-compliance – H applied for leave to appeal to SC – SC said issue of what sanctions should be set in unless orders and imposed on their breach and the circumstances in which relief from those sanctions might be granted were matters of public importance – This case was not an appropriate one to consider issues – H also raised whether a substantial miscarriage of justice might occur – Argued unless appeal was heard, the class H  represented would be deprived of their opportunity to pursue the benefits of SC earlier decision in the stage two trial – SC had said in a previous case that substantial miscarriage of justice ground had limited scope in civil cases – Here did not apply – Application dismissed.

Successful leave application

Tourism Holdings Ltd v Labour Inspector [2021] NZSC 39 (6 May 2021)

Successful leave application - approved question whether CA correctly answered questions of law submitted for determination by it.

Supreme Court of Canada

Sexual assault, appeal rights on conviction, youth offender, Charter rights

R v CP [2021] SCC 19 (7 May 2021) 

Unsuccessful appeal from Ontario CA – At a Toronto-area beach party, a 15-year-old boy, CP, sexually assaulted a 14-year-old girl - After being found guilty of sexual assault, the boy known as CP because he is a young offender, appealed to Ontario CA - He claimed verdict unreasonable based on the evidence -  CP lost appeal, but one of the three judges disagreed with their colleagues on a point of law - Adults convicted of such serious crimes under the Criminal Code and who lose their appeals had automatic right to appeal to SC when CA judges disagreed on point of law - Not the case for offenders convicted of these crimes under the Youth Criminal Justice Act (YCJA) - In his appeal, CP challenged YCJA section 37(10) of the YCJA - Said it violated young offenders’ rights under the Canadian Charter of Rights and Freedoms (Charter) - CP asked SC to overturn guilty verdict and decide if section 37(10) violated his section 7 and 15 Charter rights - Section 7 protected an individual’s right to life, liberty and security – Charter Section 15 protected groups from discrimination including on the basis of age - SC agreed to answer both questions – SC majority agreed with CA majority that verdict reasonable - Said trial judge provided solid reasons for what she believed happened on the night of the sexual assault - Majority said trial judge’s reasons for finding CP guilty were rigorous and thoughtfully explained – SC majority said section 37(10) YCJA was constitutional - Five judges said YCJA did not violate CP’s section 7 Charter rights because modern youth justice system recognised the vulnerability of young offenders with greater and more tailored protections in line with their unique circumstances - Four judges said section 37(10) did not breach CP’s section 15 Charter rights - Said Parliament did not discriminate against young people when it passed the YCJA Judges said law balanced the benefits of review on appeal against harms inherent in that process, such as the principle that there should be no unnecessary delays in the final outcome of criminal trials - One judge said 37(10) had breached CP’s section 15 Charter rights - However, he said violation reasonable under section 1 of the Charter, which said rights can be limited, if reasonable and justified in a free and democratic society - Said in CP’s case, limit justified because it served the goal of timely justice and young people night still appeal to the Supreme Court with leave – Appeal dismissed.

Judicial Committee of the Privy Council

Cell phone search, claim before trial that search material inadmissible, breached constitutional rights, abuse of process

Brandt v Commissioner of Police and ors [2021] UKPC 12 (10 May 2021)

Unsuccessful appeal from Eastern Caribbean CA (Monserrat) - In September 2015, the Montserrat police obtained from a magistrate a warrant to search premises occupied by B, who was suspected of having committed various offences under the Montserrat Penal Code - During the search, the police seized various mobile phones - Police subsequently searched the phones -  Were found to contain potentially incriminating evidence – B charged, in September 2016, with offences relating to the sexual exploitation of minors – Had not yet been tried - In May 2019, B filed a claim for constitutional relief seeking, among other things, a declaration that  evidence obtained from searching his mobile phones was inadmissible in his trial – HC dismissed claim as an abuse of process – CA upheld that ruling, but also said search of B’s mobile phones was unlawful, although not in breach of his constitutional rights - B appealed to PC - The principal issues before PC were: whether search of B’s mobile phones breached his constitutional rights, and if so, what if any remedy was he entitled to; and whether B’s claim for constitutional relief was an abuse of process, and could be an abuse of process despite HC  finding that it was not vexatious or frivolous – On the last issue PC said judge not certifying  application as frivolous and vexatious did not have any implications for whether there was an abuse of process – Said HC concluding proceedings were an abuse of the court’s process plainly right – CA also plainly right to dismiss abuse of process appeal - CA recognised that questions over evidence admissibility were for trial judge in the criminal proceedings – PC invited to consider lawfulness and constitutionality of cell phones search on an obiter basis - Said it would be inappropriate to do so as these were matters for the criminal trial – Appeal dismissed.

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