New Zealand Law Society - Supreme Court roundup 28 May-3 Jun

Supreme Court roundup 28 May-3 Jun

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

New Zealand Supreme Court

Misfeasance in public office and deceit, elements not made out

Helilogging Ltd (In receivership and liquidation) and anor v Civil Aviation Authority [2021] NZSC 49 (27 May 2021)

Unsuccessful leave application - Between December 2002 and August 2005, H sought regulatory approvals from the Civil Aviation Authority (CAA) to operate Westland Wessex Mk 2 helicopters for heli-logging - Process concluded on 19 August 2005 when the Director of Civil Aviation declined further approvals – Some nine years later H commenced proceedings against CAA alleging misfeasance in public office and deceit - Following a seven-week trial confined to liability HC dismissed claims – HC said claims elements not made out - Said therefore not required to determine vicarious liability or limitation issues, though Judge addressed these briefly – CA upheld judgment – H sought leave to appeal to SC – SC said issues entirely factual – Also, dispute involved very particular facts and process concluded nearly 16 years ago - Proposed appeal did not involve matter of general or public importance or of general commercial significance - If leave were granted, would substantially be a re-run of CA - No appearance of a miscarriage of justice – Application dismissed.

Procedure, application to vary suppression order

Application by Siemer [2021] NZSC 50 (s8 May 2021)

Unsuccessful application to vary order prohibiting publication – Self-represented S applied to vary an SC order suppressing disseminating information in a judgment that might jeopardise fair trial rights – SC said in previous case agreed in principle that, subject to any legislative provision, New Zealand law should continue to permit “any member of the public, who wishes to publish material” subject to a suppression order “to approach the registrar of the court which made the order, seeking its variation or rescission” – S’s application treated as one under informal procedure rather than under Criminal Procedure Act 2011 – SC had previously said legislation did not codify the extent of the court’s power – Court had inherent power to make orders of the sort in issue here – Application dismissed.

Abuse of process, fourth appeal application

P v Commissioner of Inland Revenue and ors [2021] NZSC 51 (28 May 2021) 

Unsuccessful leave application – Self-represented P sought leave to appeal against CA judgment (current judgment)  which dismissed her application for recall of an earlier CA judgment – SC Deputy Registrar said SC had no jurisdiction to entertain application – SC dismissed application for leave to appeal against previous CA judgment - A further application for leave, treated as application to recall that judgment, dismissed - Current application therefore third in SC, and fourth counting the recall application to CA which P filed as challenge (direct or indirect) to current judgment - Point reached where her repeated challenges became abuse of process. – Application dismissed.

Successful leave application

Royal Forest and Bird Protection Society of New Zealand v New Zealand Transport Agency [2021] NZSC 52 (28 May 2021)

Successful leave application - Approved question whether HC correct to dismiss appeal against Board of Inquiry decision.

Security for costs, Chinese court

Mao v Industrial and Commercial Bank of China (New Zealand) Ltd and anor [2021] NZSC 53

Unsuccessful leave application – Self-represented M applied for leave to appeal against CA Judge ruling on security for costs following HC strike out decision – CA Judge said was fourth proceeding in litigation challenging Bank decision to recover shortfall on a mortgagee sale in New Zealand by obtaining judgment and freezing orders in China – M’s wife, was the mortgagor - Proceedings in China also involved claim against M because, under Chinese law, a spouse could be jointly liable with the actual debtor for certain debts – M wanted to argue Judge erred to not consider effect of Chinese Court decision to apply New Zealand law, which he said made that proceeding oppressive – Said Chinese Court decision not before HC Judge who struck out proceeding - Also said a matter of public interest for customers of Chinese banks in New Zealand to be aware of approach that might be taken to enforce loans from New Zealand in China - Said Bank had sufficient security from freezing order remaining over his wife’s assets – SC said CA Judge applied settled principles - Proposed appeal did not challenge those principles - No question of general or public importance nor any question of general commercial significance arose - Nor did anything raised by give rise to an appearance of any miscarriage of justice – Application dismissed.

Trust, access to documents, legal professional privilege, joint interest exception

Lambie Trustee Ltd v Addleman [2021] NZSC 54

Unsuccessful appeal from CA - Appeal arose from dispute between two sisters, J and A – Both beneficiaries of L Trust (LT), established in 1990 – L Trustee Ltd (LTL) was L Trust’s sole trustee from 2006 - J controlled LTL - Issue over extent that legal advice Trust obtained should be disclosed to A – A did not become aware of LT’s existence until late 2001 -Did not learn that she was a beneficiary until November 2002, when she received a letter from one of its then trustees, K, saying she was to receive a distribution from LT - In March 2003, A’s solicitors wrote to K requesting extensive further information about the Trust - Process eventually resulted eventually in K, in letter dated 19 April 2004, providing A’s solicitors with copies of the trust deed and documents showing the appointment and removal of trustees – In September 2014 A’s solicitors again wrote asking for comprehensive information about LT – Said A prepared to apply to HC to obtain requested information requested – In ensuing correspondence F (a) advised that he and other trustees had been replaced some years earlier; (b) said that specialist advice was being obtained; and (c) claimed that LT had been seeded exclusively from damages paid to J for catastrophic injuries she suffered in a swimming pool accident – A commenced HC proceedings on 16 June 2015 seeking  disclosure – HC dismissed A’s claim entirely – Said LT primary purpose was ensuring J’s welfare and financial security and was a “sole purpose trust in effect” – Also said LT had been funded exclusively from the damages she received – Said LT had always been administered on a strictly confidential basis and, in the absence of any evidence of breach of trust or fiduciary duty, no reason to disclose its private dealings to A who was not a close beneficiary – CA reversed HC judgment - Was highly sceptical of sole funding argument and rejected the sole purpose argument - Ordered LTL to provide A with all documents in its possession or power relating to LT in three categories: financial statements, minutes of meetings, and any legal opinions and other advice trustees obtained trustees that LT funded – LTL obtained leave to appeal to SC from CA, but only on whether CA correct to reject its claims of legal advice privilege and litigation privilege –  SC unanimously dismissed appeal, but with: (a) clarification that CA disclosure orders did not extend to legal advice given from June 2015 connected with this litigation; and (b) a reservation of leave to LTL to revert Court regarding advice received after 7 November 2014 and before June 2015 commencement of proceedings – Legal professional privilege covered all advice in issue in appeal  in sense that, as against non-beneficiaries, LTL entitled to privilege - But trustee not entitled to privilege against a beneficiary in respect of advice on issues in which trustee and beneficiary have a joint interest – This was “the joint interest exception” – A and trustees shared a joint interest in due Trust administration, therefore in legal advice on that administration - Joint interest exception meant LTL not entitled to claim privilege against A in respect of this advice – SC said joint interest exception applied to all advice received up to 7 November 2014 – Appeal dismissed.

Supreme Court of Canada

Norwich order, access to court records

MediaQMI Inc v Kamel [2021] SCC 23

Unsuccessful appeal from Quebec CA -  On October 6, 2016, the Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (CIUSSS) brought claim against a former manager, alleging misappropriation of public funds – Also applied for a Norwich order to obtain  identity of holder of four bank accounts to which money had allegedly been diverted - On October 7, 2016, Superior Court made the Norwich order and ordered that the entire record be sealed, including four exhibits CIUSSS filed to support its allegations - On March 29, 2017, MQ, a newspaper publishing company, moved to unseal record based on art. 11 of the Code of Civil Procedure (C.C.P.) and s. 23 of the Charter of human rights and freedoms (Quebec Charter) which reflected Canadian Charter, to have access to court record, including exhibits that might be in it - Hearing the motion, scheduled for April 5, 2017, postponed to April 25, 2017 - On April 19, 2017, CIUSSS discontinued its legal action – It then tried to retrieve the exhibits filed, but court office staff could not find them - When motion heard on April 25, CIUSSS orally requested to retrieve exhibits filed in the court record – MQ opposed  request - Superior Court judge ordered the unsealing of court records, but said that because the lawsuit had ended, parties could retrieve their exhibits and shield them from the public - MQ unsuccessfully appealed to Quebec CA - Then appealed to SC - Main question whether public could still have access to exhibits in court records once a lawsuit has ended and the parties have removed their exhibits from the court record - In Quebec, the Code of Civil Procedure gave any member of the public the right to access court records - Code also contained provision dealing with the removal of exhibits filed in a court record - During proceedings, parties could withdraw their exhibits if all of them consented - Once proceedings ended, parties had one year to retrieve their exhibits - If they did not, the exhibits could be destroyed – SC majority upheld CA - Said once parties retrieved exhibits at the end of a proceeding, members of the public could continue to consult court records, but would no longer have access to exhibits that have been removed – SC said general rule was that court proceedings and records are open and public.

Judicial Committee of the Privy Council

Youth justice, community residence, Trinidad and Tobago Constitution, declaration of violation of constitutional rights, remedies

Commissioner of Prisons and anor v Seepersad and anor [2021] UKPC 13 (24 May 2021)

Successful appeal from Trinidad and Tobago CA - In January 2014, SS and BS were jointly charged with murder - Were each comparatively young, 16 and 12 respectively - SS  remanded to Arouca (an adult prison) and BS to a YTC (for male offenders aged between 16 – 18) - Shortly after remand orders took effect, certain changes were made to the framework dealing with the treatment of children in the criminal justice system (collectively the Children Act) - Children Act provided for, among other things, remanded juveniles to be placed in custody in a community residence - At the time Children Act came into force, Government had not established any community residences suitable for custodial purposes under statutory definition – SS and BS appeared before Chief Magistrate for a second time in July 2015 and he remanded them back to the same institutions - They challenged the basis of their detention as unsuitable on a number of grounds – HC  ruled in their favour on all grounds and made an award of damages – CA overturned HC and set aside all other orders, including as to costs – PC said combination of facts amounted to a violation of one of the core values of Trinidad and Tobago Constitution - Neither substantive law nor arrangements within Trinidad and Tobago legal system for redress provided SS and BS with “protection of the law” guaranteed by section 4(b) of Constitution – Entitled to declarations that their unlawful remands violated their right to section 4(b) protection of the law – Damages question, if not agreed, should be remitted to HC for assessment.

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