New Zealand Law Society - Supreme Court roundup 20-27 May

Supreme Court roundup 20-27 May

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

New Zealand Supreme Court

Interpreting Mandarin documents, business relationship conducted in Mandarin

Deng v Zheng [2021] NZSC 43 (14 May 2021) 

Successful leave application - approved question whether CA correct to make declaration that there was a partnership between Z and D in which they were equal partners and orders consequential on that finding - Appeal raised potential issues about interpreting documents translated from Mandarin and the cultural setting in an arrangement between two Chinese parties whose business relationship appeared to have been conducted in Mandarin – CA said it was conscious that language was used in a broader linguistic and cultural setting, by reference to background assumptions about personal and business relationships and the ways in which dealings normally structured that parties shared, but which the Court might not be aware of or understand – Referred to need to be sensitive to the social and cultural context and be cautious about drawing inferences based on preconceptions about business dealings – SC said might be necessary for it to explore these factors - Invited New Zealand Law Society | Te Kāhui Ture o Aotearoa (Law Society) to consider intervening in this appeal, after consultation with NZ Asian Lawyers.

Second recall application

SKP Inc v Auckland Council [2021] NZSC 44 (19 May 2021)

Second unsuccessful recall application- Nothing SKP advanced which would warrant recall of previous leave judgment - Rather, application an attempt to debate the merits of leave application – Application dismissed.

Bankruptcy, application to disqualify solicitors

Zhang v Westpac New Zealand Ltd [2021] NZSC 45

Unsuccessful leave application – Self-represented Z adjudicated bankrupt on 25 September 2019 on Westpac application as a judgment creditor – Z appealed to CA against her adjudication - Appeal yet to be set down for hearing - Sought leave to appeal to SC against  interlocutory CA decision refusing to disqualify Westpac’s solicitors from acting in the substantive appeal – Z’s third leave application to appeal to SC regarding matters related to her bankruptcy appeal - Application did not raise any matter of general or public importance, or commercial significance -  Dismissal did not raise appearance of a substantial miscarriage of justice - In any event, not necessary in interests of justice for issues raised to be resolved before the substantive CA appeal concluded – Application dismissed.

Intimate visual recording, Name suppression

Barnes v New Zealand Police [2021] NZSC 46 (24 May 2021)

Unsuccessful leave application – B pleaded guilty to representative charge of intentionally making an intimate visual recording of another person under s 216H of Crimes Act 1961 – DC discharged B without conviction and granted permanent name suppression – Police appealed to HC  - HC reversed both aspects of DC judgment, entered conviction, quashed suppression order and remitted to DC for re-sentencing – B applied for leave to appeal against HC judgment – CA granted leave but dismissed appeal – B sought leave to appeal to SC – SC said although B identified a number of issues, it did not see any of them as justifying leave grant - In all of them, real issue was application of law to the particular facts – Grounds B wished to raise about name suppression also essentially fact-specific – Applications dismissed, suppression order lapsed.

Leave to review DC adjournment

Terry v New Zealand Police [2021] NZSC 47 (24 May 2021)

Unsuccessful leave application – self-represented T on 5 November 2020 appeared on two charges of driving while his licence was suspended - Hearing adjourned to 21 March 2021 - On 18 December 2020, he attempted to file application against adjournment decision in CA - Deputy Registrar rejected application for want of jurisdiction and Judge dismissed T’s application to review that decision – T sought leave to appeal to SC – It said no right of appeal in DC criminal proceedings regarding adjournments - If there were a right of appeal it would be to HC, not CA – CA Judge entirely correct - Further, nothing in Criminal Procedure Act 2011 which authorised an appeal to SC from CA Judge’s decision – Application dismissed.

Sexual offending, stupefying

Hei v R [2021] NZSC 48 (24 May 2021)

Unsuccessful leave application – H convicted after trial of sexual offending relating to two complainants and of one charge of stupefying complainant F - sentenced to 16 years’ imprisonment with MPI nine years - Appealed unsuccessfully to CA against conviction - Sought leave to appeal to SC – SC said nothing H raised regarding certain evidence meant a miscarriage of justice occurred here – Leave criteria not met regarding a propensity issue – Application dismissed.

Supreme Court of Canada

Church membership, underlying legal right, intention to create legal rights, obligations

Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral and ors  v Aga and ors [2021] SCC 22 (21 May 2021)

Successful appeal from Ontario CA - Five church members were expelled  Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral congregation - Brought action against church and its senior leadership, seeking, among other relief, declaration that expulsion null and void, as it violated the principles of natural justice - Church and leadership members moved for summary judgment have the action dismissed, because the court had no jurisdiction to review or set aside the expulsion decision -  Said no free‑standing right to procedural fairness without an underlying legal right - Expelled members had no underlying legal right - Motion judge granted summary judgment and dismissed action, saying expelled members failed to allege or provide evidence of an underlying legal right - CA allowed expelled members’ appeal, saying written constitution and bylaws of a voluntary organization constituted a contract setting out organisation members’ rights and obligations – CA said parties entered into mutual agreement to abide by governing rules - Whether there had been a breach of contract based on failure to comply with the rules was a genuine issue requiring trial – Church appealed to SC – SC said CA erred to find contract formed between Church and churchgoers - Said many informal agreements people undertook did not necessarily result in a contract - An essential component for contract formation was missing here, the intention to create legal rights and obligations towards one another – SC unanimously said to pursue common goals, many voluntary associations had rules, and sometimes even a constitution, bylaws and a governing body to adopt and apply the rules - These were practical measures to help pursue shared objectives - But, did not in and of themselves give rise to contractual relationships between individuals who joined - To illustrate its point, SC said “ … members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group, for example, do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow”  - It said joining a congregation or voluntary association and making financial contributions did not in itself form a legally binding relationship – Appeal allowed.

High Court of Australia

Administrative law, materiality of breach, implied fairness condition

MZAPC v Minister of Border Protection and anor [2021] HCA 17 (19 May 2021)

Unsuccessful appeal from FC – M, an Indian citizen, applied to the Refugee Review Tribunal (Tribunal) for merits review of decision to refuse him a protection visa under the Migration Act 1958 (Cth) (Act) – As part of that review, Secretary of the Department of Immigration and Border Protection notified Tribunal that s 438(1)(b) applied to certain documents, including a "Court Outcomes Report", which revealed that the appellant had been convicted of, among other things, the offence of "state false name" - Section 438 notification not disclosed to M -  Tribunal's reasons did not refer to notification or any document specified in notification -  Federal Circuit Court dismissed application for judicial review of Tribunal's decision - M appealed to FC – Before FC, no dispute that Tribunal's failure to disclose  notification to M breached implied condition of procedural fairness - Parties at issue only over materiality of conceded breach - Materiality question, FC recognised, turned on whether disclosure could realistically have resulted in Tribunal deciding differently - FC said that question could not be answered affirmatively without first finding Tribunal had in fact taken information the notification covered into account in making its decision - Unable to find on the evidence that Tribunal had taken the information into account, FC dismissed  appeal – M appealed to HC – M’s primary appeal ground consisted of two strands - First, he disputed that he needed to prove the Tribunal took the notification information into account to establish materiality - Said once he had demonstrated through reasonable conjecture that Tribunal could have taken the information into account adversely to him and that, if it did, he could have persuaded it to make a different decision if it had disclosed the notification to him, onus then shifted onto the Minister to prove that notification disclosure could not have resulted in the Tribunal having made a different decision - Second, M said FC independently erred by erecting and acting on a presumption of fact that Tribunal did not take information covered by notification into account because there was no reference to the information in its reasons – HC unanimously dismissed appeal appeal but did so for different reasons – Four Judges said counterfactual question of whether the decision in fact made could have been different had the breach not occurred could not be answered without first determining the basal factual question of how the decision that was in fact made - Majority held onus of proving materiality lay on the plaintiff, who bore the overall onus of proving jurisdictional error - Majority also rejected the second strand of M’s primary appeal ground saying no such "presumption" existed – Majority said no basis in the evidence that Tribunal took the information into account - Dismissed appeal - The other three Judges also dismissed the appeal - Principal difference between the judgments concerned party that bore onus of proving materiality - Three Justices said once applicant identified  error, onus of proving error not material to decision reached should be on the party who seeks to affirm the decision's validity – namely, the Executive – Appeal dismissed.

United Kingdom Supreme Court

Time calculation, “Midnight deadline case”

Matthew and ors v Sedman and ors [2021] UKSC 19 (21 May 2021)

Unsuccessful appeal from CA –M were trustees of a trust (Trust)  - Replaced S who were trustees of until their retirement in 2014 - Trust held shares in Cattles plc (C), a listed company - In April 2008, C published an annual report and a rights issue prospectus containing misleading information - Trading in C shares subsequently suspended, and in February 2011, schemes of arrangement were approved in respect of C and a subsidiary, Welcome Financial Services Ltd (W) - Scheme of arrangement here was  court-sanctioned agreement between a company and its creditors -  Because of the misleading information in the annual report and prospectus, Trust had a claim against C and W under the schemes -  Under scheme relating to W a valid claim could have been made up to midnight (at the end of the day) on Thursday 2 June 2011 - S did not claim against W Scheme on or before 2 June 2011 – M commenced proceedings in negligence and breach of trust against S (W claim) on Monday 5 June 2017 - Under  Limitation Act 1980, actions brought in tort, contract, and breach of trust could not be brought after six years from date on which cause of action accrued – S said M claim out of time and statute-barred –  Key issue whether Friday 3 June 2011, day which commenced immediately after expiry of the midnight deadline for bringing a claim against W, counted towards calculating the six-year limitation period - If Friday 3 June 2011 included, limitation period expired six years later, at the end of Friday 2 June 2017 – That would mean W claim out of time - If Friday 3 June 2011 excluded, limitation period expired six years later, at the end of Saturday 3 June 2017 - However, in order to bring W claim, a claim form had to be issued - That could only be done when court office open - Office shut at weekend - Parties agreed that if Friday 3 June 2011 excluded, the final day on which proceedings could be brought was Monday 7 June 2017 - In that case, W claim within six-year limitation period, not statute-barred – CA said Friday 3 June 2011 should be included in the limitation period - Said in cases where cause of action accrued part-way through a day, that day was ignored in time calculation for limitation purposes - But a different rule applied where  cause of action accrued at not after midnight ((midnight deadline case) - In midnight deadline case, the day following expiry of the midnight deadline should be included for limitation purposes, as it was a whole day - W claim therefore brought out of time – M appeal to SC – SC unanimously dismissed appeal – Said in midnight deadline case, there was a complete undivided day following the expiry of the deadline, which should be included when calculating the limitation period - W claim therefore brought out of time – Appeal dismissed.

United States Supreme Court

Fourth Amendment, freedom from governmental intrusion

Caniglia v Strom et al 20-157 (17 May 2021) 

Successful appeal from First Circuit CA - During an argument with his wife, C placed a handgun on the dining room table and asked his wife to “shoot [him] and get it over with” - His wife instead left home and spent the night at a hotel - Next morning, she was unable to reach her husband by phone, so she called the police to request a welfare check - Responding officers accompanied C’s wife to the home, where they encountered him on the porch - Officers called an ambulance based on the belief that C posed a risk to himself or others - C agreed to go to the hospital for a psychiatric evaluation on condition officers not confiscate his firearms - But once C left, officers located and seized his weapons - C sued, claiming officers entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment - DC granted summary judgment to the officers – CA agreed, extrapolating from previous Court decision based on a theory that  officers removing C and his firearms from his home justified by a “community caretaking exception” to the warrant requirement – C appealed to SC – SC said neither the holding nor logic of decision justified such warrantless searches and seizures in the home – Decision said warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment - In reaching this conclusion, Court said officers who patrolled the “public highways” were often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents - But searches of vehicles and homes were constitutionally different, as the decision repeatedly stressed – The very core of the Fourth Amendment’s guarantee was the right of a person to retreat into his or her home and “there be free from unreasonable governmental intrusion” -  Recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, was not an open-ended license to perform them anywhere – Appeal allowed.

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