New Zealand Law Society - Supreme Court roundup

Supreme Court roundup

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

Supreme Court of New Zealand

Leave to appeal

Murray v West Coast Holdings [2021] NZSC 55 (3 June 2021)

Unsuccessful application for time extension –On 2 December 2020, the CA declined self-represented M’s application for an extension of time to file the case on appeal and apply for a hearing - Proposed appeal to CA was from HC decision of adjudicating him bankrupt - Applied for time extension to apply for leave to appeal to SC from CA decision – CA had concluded M had been given a fair hearing in HC – SC said proposed appeal relates to the particular circumstances - No matter of general or public importance or commercial significance as required for a leave - Nor did anything raised suggest CA erred - Threshold for miscarriage of justice in civil sense also not met – Application dismissed.

Extradition, murder allegation, China

Minister of Justice and anor v Kim [2021] NZSC 57 (4 June 2021)

Adjournment of Appeal from CA, cross-appeal dismissed – K a New Zealand permanent resident - People’s Republic of China (PRC) authorities alleged he killed a young woman while in Shanghai in December 2009 - In May 2011, New Zealand received a request from PRC seeking K’s extradition on one count of intentional homicide - In 2013 DC said K eligible for surrender - On 30 November 2015, the Minister of Justice, after seeking diplomatic assurances from PRC as regarding K’s treatment, said K should be surrendered to PRC - K successfully challenged that decision on judicial review - After reconsideration and further diplomatic assurances, the Minister again decided that K should be surrendered – K unsuccessfully applied to HC for judicial review of that decision -  On 11 June 2019, CA quashed Minister’s decision - Said it had to be reconsidered in light of matters identified in CA judgment - These included addressing the effectiveness of assurances regarding torture risk further inquiries on certain other issues regarding whether there was a risk of K not receiving a fair trial – In September 2019 SC granted Minister and the Attorney-General leave to appeal against CA decision – Also granted K’s cross-appeal application - Approved question was whether CA correct to quash and remit the Minister’s decision to surrender K under s 30 of the Extradition Act 1999 -  Human Rights Commission granted leave to intervene –-

Main issue before SC was whether it was reasonably open to Minister to decide to surrender K to PRC - To resolve this, SC had to, among other issues, address circumstances in which diplomatic assurances could be sought and relied upon, determine whether the Minister could reasonably conclude that there were not substantial grounds for believing that K would be in danger of being subjected to torture if extradited to the PRC, and determine whether Minister could reasonably conclude that K would receive a fair trial in PRC - SC also had to determine whether Minister ought to have received an assurance from the PRC that the time K spent on remand in New Zealand would be taken into account if he was convicted and sentenced in PRC – Regarding cross-appeal issue was whether no reasonable Minister could ever decide to extradite K – SC had to consider human rights situation in the PRC, delays involved in the case, and K’s mental health – SC unanimously said not necessary to ask preliminary question about whether general human rights in receiving state excludes accepting diplomatic assurances whatsoever - There could be rare cases where human rights situation so bad that assurances could not properly be given any weight at all, no matter how detailed - Decision-maker could consider whether a case might come within that rare category of cases before seeking assurances, but this question could equally be considered after assurances received – SC outlined a three-stage process to consider whether diplomatic assurances sufficiently remove the risk in a case - First, necessary to assess danger to the individual, in light of individual’s particular characteristics and situation and human rights in country where they would be sent - Second, necessary to assess quality of assurances given - Third, decision-maker had to assess whether in light of the situation in the receiving state and any other relevant factors (such as the strength of the bilateral relationship between the receiving and sending states) the assurances can be relied upon - Three steps were intertwined – SC said was possible for Minister considering extradition to accept assurances relating to a person at high risk of torture and a state where torture is systemic, provided assurances were sufficiently comprehensive, there was adequate monitoring and there was a sufficient basis for concluding assurances would be complied with – Also said possible to accept assurances from a state with systemic issues regarding right to a fair trial, provided decision-maker satisfied that individual at issue would receive a fair trial – SC unanimously said if limited further diplomatic assurances had been obtained, Minister could have reasonably concluded that there were not substantial grounds for believing K would be in danger of being subjected to torture if extradited to PRC – Said Minister may have underestimated risk here – Regarding fair trial rights SC said  test to be applied was whether was a real risk of a flagrant denial of justice  - If limited further assurances had been obtained and certain further inquiries made, Minister could have – depending on the results of the inquiries — reasonably concluded that K would not face a real risk of a flagrant denial of justice on extradition - Minister did not need to receive assurance from PRC that the time K spent on remand in New Zealand would be taken into account if he was convicted and sentenced in PRC – SC unanimously dismissed cross-appeal – By a 3-2 majority, SC adjourned appeal to give Minister and Attorney-General opportunity to make further inquiries and seek further assurances identified - Also said they should consider any further submissions made from K – Appeal adjourned – Cross-appeal dismissed.

Supreme Court of Canada

Child support, non-payment

Colucci v Colucci [2021] SCC 24 (4 June 2021)

Unsuccessful appeal from Ontario CA -  Parties married in 1983 and divorced in 1996 - Mother  granted sole custody of the parties’ two daughters and father required to pay child support of $115 per week per child until they were no longer children of the marriage - In 1998, father requested reduction in child support, but provided no financial disclosure to support his request and the parties reached no agreement at that time - Father’s child support obligations ended in 2012 - From 1998 to 2016, father made no voluntary child support payments and only limited sums were collected through enforcement - During the period in which arrears accrued, father absent from  children’s lives and his whereabouts were unknown - In 2016, he applied to retroactively reduce child support and rescind arrears of approximately $170,000 - Provided little documentation or financial disclosure to support his claims - Motion judge retroactively decreased support, effectively reducing the arrears owing to $41,642 – Said variation warranted to bring child support in line with Federal Child Support Guidelines and to reflect father’s drop in income over the period when  arrears were accruing - CA overturned decision and ordered that the father the full arrears – Father appealed to SC – In a unanimous decision, SC said father not entitled to reduction based on decreased income - Said failure to produce adequate evidence of financial circumstances was fatal to any attempt to cancel his child support debt – Said father had not proved he could not pay now or in the future, even with a flexible payment plan - In any event, SC said cancellation of child support debt would only happen in exceptional cases and as a last resort - Payment and enforcement of child support debt was the rule – Father required to pay  mother child support owed, approximately $170,000 – Appeal dismissed.

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