New Zealand Law Society - Supreme Court roundup 11-17 June 2021

Supreme Court roundup 11-17 June 2021

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

Supreme Court of New Zealand

Tort, invasion of privacy, “highly offensive” test

Hyndman v Walker [2021] NZSC 58 (9 June 2021)

Unsuccessful leave application – HC dismissed H’s tort claim for invasion of privacy, finding that he had reasonable expectation of privacy in certain private communications but that W’s disclosure did not meet the highly offensive threshold designed to discourage trivial claims – CA dismissed H’s appeal – CA said tort might well benefit from re-examination, opportunity very seldom arose - But not possible to remove “highly offensive” requirement without reformulating the tort - an exercise courts had to undertake with care having regard to the treatment accorded to privacy generally in New Zealand law and the need to balance rights of privacy against those of free expression – H applied to SC – SC agreed with CA  that this case not suitable for reconsidering tort of invasion of privacy – Application dismissed.

Stay of proceedings, time extension

Alkazaz v Enterprise IT Ltd [2021] NZSC 59 (11 June 2021) 

Unsuccessful stay application – Self-represented A applied for leave to appeal Employment Court decision – Applied for stay of Emp Court proceedings and time extension to file submissions – SC said had jurisdiction to stay proceeding where decision had been given, or to stay execution of a decision - Issue here was whether stay is necessary to preserve A’s position pending determining  leave application and, if SC got that far, his appeal – Stay not necessary – A  also applied to extend time to file submissions - Submissions for leave application for leave already filed, time extension application moot – Applications dismissed.

Deputy Registrar, filing fee

Re Cullum [2021] NZSC 61 (11 June 2021) 

Unsuccessful application to review Deputy Registrar decision – Self-represented C applied for extension of time for leave to appeal against HC judgment of 23 March 2021 - On 28 April 2021, SC  Deputy Registrar declined C’s  application to waive $400 interlocutory application filing fee -He considered proposed appeal raised issues specific to C - Not satisfied proposed appeal concerned a question of law of general or public importance – SC Judge said in light of the background, Deputy Registrar clearly correct in his assessment and, leave application an abuse of process – Application dismissed.

New evidence

Ellis v R [2021] NZSC 63 [15 June 2021] 

Unsuccessful application to adduce new evidence – E convicted on 16 charges of sexual offending against seven children in 1993 - Appealed twice to CA, second time after a referral by Governor-General - First appeal quashed three convictions - Second appeal against remaining 13 convictions  dismissed in 1999 – On 31 July 2019SC granted E leave to appeal against remaining convictions -E passed away on 4 September 2019 - Issue arose as to whether appeal should continue despite his death - In September 2020, SC said appeal should continue - Crown applied to adduce evidence of deponent regarding alleged incident in 1982/1983 and affidavits of other proposed witnesses relating to incident – SC  dismissed Crown application and ruled proposed evidence inadmissible - SC issued judgment setting out its ruling to assist  parties to prepare for substantive appeal hearing in October 2021 – Application dismissed.

Stay of decision

Austin v Roche Products (New Zealand) Ltd [2021] NZSC 62 (16 June 2021) 

Successful stay application - On 31 March 2021, SC dismissed A’s appeal against the striking out his claim for damages for personal injury, but provided him a brief opportunity before the decision took effect in which to apply to the Accident Compensation Corporation (ACC) to review its decision to grant him coverage – A applied for a stay of this proceeding while ACC considers his review application – SC said limited stay justified - Struck appropriate balance between R’s and A’s interests - Stayed until midday on 6 December 2021, unless the stay is extended on A’s application.

Access to documents, time extension

Smith v Electrix Ltd and anor [2021] NZSC 64 (16 June 2021)

Unsuccessful leave application – S writing book on construction of Justice and Emergency Precinct in Christchurch - Proposed appeal related to access to documents in the Electrix/Fletcher construction litigation – SC said might be issue of principle over extent to which possibility of commercially sensitive documents, inconvenience of redacting documents and likelihood of discouraging commercial litigation should weigh against granting an applicant who is not a party to the proceedings access to documents referred to in the course of litigation - This application did not, however, raise those issues - Only issue whether CA should have granted S’s application for extension of time to appeal – Application dismissed.

Time extension, delay

Rafiq v Attorney-General [2021] NZSC 65 (16 June 2021) 

Unsuccessful time extension application - On 27 May 2015, HC Judge ordered under s 88B of the Judicature Act 1908 that R was not to institute civil proceedings in any court without leave - R initially opposed the application for a s 88B order - Later advised Court that he wished to withdraw his statement of defence and that he consented to order being made - More than two years later, R sought time extension to file an appeal against HC judgment - In judgment on 3 August 2018, CA declined to grant extension of time – R applied for time extension of time to apply for leave to appeal CA decision to SC  - SC said proposed appeal would have SC essentially canvassing matters addressed in CA – Application well out of time – No adequate explanation – Application dismissed. 

High Court of Australia

Foreign Influence Transparency Scheme Act, Freedom of political communication

LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (16 June 2021)

Answers to questions of law stated in special case – L a private think-tank with 1,290 members in Australia - American Conservative Union (ACU) is a USA corporation which held annual political conference called the "Conservative Political Action Conference" (CPAC) - In 2018, L’s president met with ACU Executive Director - Agreed that L and ACU would collaborate in a CPAC event to be held in Australia in 2019 - In August 2019, Attorney-General's Department asked L to consider whether it was required to register its arrangements with the ACU under Foreign Influences Transparency Scheme Act 2018 (Cwth)  (Act) – L  had not to date registered under Act - Act's stated object to provide scheme for registering people who undertook certain activities on behalf of foreign principals to improve the transparency of their activities on behalf of those foreign principals - Act relevantly required a person to register details about themselves and their foreign principal with the Secretary of the Attorney-General's Department (Secretary) where the person undertakes communications activity on behalf of the foreign principal for the purpose of political or governmental influence - Parties agreed in the special case that, subject to the question of validity, L had registration obligations under Act because undertook  communications activity, in the form of holding annual CPAC events, on behalf of ACU, a foreign principal for Act purposes – Primary question HCA answered was whether Act registration provisions invalid to extent that they breached freedom of communication implied in the Australian Constitution – HCA majority, among other things, said restriction burdened the implied freedom but burden was justified - Provisions had legitimate purpose, namely to achieve transparency as a means of preventing or minimising the risk that foreign principals would exert influence on the integrity of Australia's political or electoral processes – Negative answer meant no relief for L and costs awarded to Commonwealth.

Migration Act, behaviour concern non-citizen, meaning of “removed”

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA19 (16 June 2021) 

Successful appeal from Federal Court (FC) – On returning to Australia from New Zealand in January 2018, M automatically granted a special category visa - Visa purportedly cancelled the next day and she was taken into immigration detention before being required to depart Australia (purported cancellation decision) – Federal Circuit Court (FCC) subsequently quashed purported cancellation decision -Result that the cancellation of M’s visa "retrospectively nullified" so she was not an unlawful non-citizen when she left Australia - When she returned to Australia in January 2019, M’s application for a new special category visa refused because she was a "behaviour concern non-citizen" due to her removal from Australia in January 2018 (refusal decision) – M challenged the refusal decision first unsuccessfully in FCC and then successfully on appeal to FC - Minister accepted there was no power to remove her in January 2018 but said this was irrelevant because, as the FCC said, "removed" meant taken out of Australia in fact – M said, and FC agreed, that non-citizen not "removed" from Australia unless removal is effected in accord with Div 8 of Pt 2 of Migration Act 1958 (Cth) (Act) – HCA  unanimously overturned FC decision - Said Minister's contention correct: "removed ... from Australia" in para (d) meant removed in fact - Accordingly, although purported cancellation decision was quashed, HCA this did not change the historical fact that M had been removed from Australia and was therefore a "behaviour concern non-citizen" within Act’s meaning HCA said interpretation accorded with ordinary literal meaning of para (d) and was supported by statutory context and purpose of facilitating fast and simple decision-making about whether to grant special category visas – HCA said respondent's construction of para (d), that "removed" meant lawfully or validly removed, might involve Minister’s delegates in a complex and time-consuming evaluative assessment about circumstances of a person's removal, a task which delegates were likely to be ill-equipped to perform at immigration clearance - Literal construction avoided result that would require Executive, on occasion, and ultimately Australian courts, to assess the legality of other governments’ actions  - Appeal allowed, FC orders set aside.

Supreme Court of Canada

Sherman Estate v Donovan [2021] SCC 25 (11 June 2021) 

Unsuccessful appeal from Ontario Supreme Court - Prominent couple was found dead in their home - Deaths had no apparent explanation and generated intense public interest – To day of SC decision, identity and motive of those responsible remained unknown - Deaths being investigated as homicides - Estate trustees sought to stem intense press scrutiny – Sought orders sealing orders probate files - Initially granted -  Journalist who had reported on the couple’s deaths, and newspaper for which he wrote challenged orders - Application judge sealed the probate files - Said sealing orders harmful effects substantially outweighed by salutary effects on privacy and physical safety interests - CA unanimously allowed appeal and lifted orders - Said privacy interest advanced lacked a public interest quality, and that there was no evidence of a real risk to anyone’s physical safety – Trustees appealed to SC – SC said trustees failed to establish a serious risk to an important public interest under test for discretionary limits on court openness - Orders should not have been issued - Open courts could be source of inconvenience and embarrassment, but this discomfort was not, as a general matter, enough to overturn the strong presumption of openness. - That said, personal information disseminated in open court could be more than a source of discomfort and might result in affront to a person’s dignity – Where privacy protected individuals from this affront, an important public interest and a court could make an exception to the open court principle if it is at serious risk - Here risks to privacy and physical safety not sufficiently serious – Appeal dismissed.

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