Supreme Court roundup 15-22 October
Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.
Cyclone Gabrielle information and updates for the profession are available here.
The Independent Review Panel's report is now available. More information.
International Business Consolidated Business Proprietary Ltd v SC Johnson and Sons Inc  NZSC 110 (15 October 2020)
Unsuccessful appeal from CA - International Consolidated Business Pty Ltd (ICB) registered ZIPLOC trade mark from 8 June 2006, with deemed registration date of 22 November 2001 - SC Johnson & Son Inc (Johnson) applied to revoke ICB’s trade mark on 22 April 2013 - ICB trade mark revoked for non-use on 26 June 2014, effective from 22 April 2013 - Three days earlier, on 19 April 2013, Johnson applied to register its own ZIPLOC trade mark - Assistant Commissioner of Trade Marks (AC) said Johnson’s 19 April 2013 application should not proceed because, at application date, ICB still ZIPLOC mark registered owner – Also said special circumstances under s 26 Trade Marks Act 2002, but these did not override ICB’s ownership – HC partially overturned AC decision and backdated revocation of ICB’s registered trade mark to 19 April 2013 - Remitted to AC for further determination of ownership issue - CA said Johnson’s April application could proceed to registration because register assessed for competing marks only at the date of actual entry of the new mark onto the register- Said s 68(2) (providing for the backdating of trade mark revocation) did not change position – SC granted leave to appeal on whether CA interpreted s 68(2) correctly - Refused leave on broader ownership issues ICB sought to raise - SC unanimously dismissed the appeal but for different reasons than CA – First issue was when state of the register assessed to ascertain whether there were competing marks- SC said assessment date was date of entry onto the register – Second issue was whether application date for a trade mark remained relevant - SC said application date remained relevant in revocation cases – Revocation application had to pre-date registration application – Also, had to have application to backdate revocation under s 68(2) – Here, Johnson’s registration application preceded its revocation application but no application to backdate – Third issue was whether ICB was the owner of ZIPLOC trade mark at date of Johnson’s 19 April application – If ICB was, Johnson’s application possibly could not proceed - Depended on final issue, the effect of s 26 that overrode the prohibition in s 25(1)(a) of registration of identical marks – SC said this meant ICB’s registration alone could not stop Johnson’s application proceeding to registration - Nothing ICB could put forward, other than mere registration, to defeat what CA said was Johnson’s legitimate claim to ownership - No impediment to Johnson’s application proceeding to registration – Appeal dismissed.
Barber v Police  NZSC 111 (15 October 2020)
Unsuccessful leave application – B convicted on one charge of assaulting a child (who was at the time of the assault aged around nine) - Sentenced to 100 hours of community work and ordered to pay $1,000 in emotional harm reparation – Unsuccessful appeal to HC against conviction and sentence - Sought leave to appeal to SC against HC decision - Application to SC some six years out of time – Leave application treated as also including application for time extension – Self-represented B sought to raise similar issues before SC as in HC - Said HC misunderstood the evidence - Sought to raise other issues that had arisen because of what he said was wrongful conviction – SC said proposed appeal did not meet leave criteria certainly did not meet the exceptional circumstances test for direct appeal to SC – Application dismissed.
Barton v R  NZSC 112 (16 October 2020)
Unsuccessful second application for judgment recall - On 31 August 2020, SC dismissed B’s application to recall SC leave judgment of 21 August 2020 – B applied to recall both recall and leave judgments - Effectively repeated earlier submissions that were rejected – No ground for recall - One new submission raised – Requested determination on s 17 Crimes Act 1961, which said no offender shall be sentenced to solitary confinement - Said he spent ten weeks from 25 March 2020 in solitary confinement due to Covid-19 restrictions - B not sentenced to solitary confinement - Sentenced to three years, two months and two weeks’ imprisonment - Failure of his counsel to draw SC attention to s 17 did not provide ground for recall – Second leave application dismissed – SC directed Registrar to reject any further recall applications.
Rolleston v R, Roche v R  NZSC 113
Following 2017 jury trial, R and R (Appellants) were convicted of rape and sexual violation by unlawful sexual connection of complainant - Appealed convictions claiming miscarriage due to bias on the part of a juror – CA refused appellants’ application for order directing independent counsel to interview all jurors and, in a separate judgment, dismissed appeals - SC granted appellants leave to bring a second appeal and appointed counsel to undertake an independent inquiry of the juror the subject of the bias allegation - Once SC received counsel’s report it heard substantive appeal - Dismissed appeal with reasons to follow – Judgment gave reasons for differing from CA on directing an inquiry and for agreeing with CA on substantive appeal.
Fraser v Canada  SCC 28 (16 October 2020)
Successful appeal from Federal CA - Ms Fraser, Ms Pilgrim, and Ms Fox (the women) were Royal Canadian Mounted Police (RCMP) officers - All had children in the 1990s - When they went back to work, they found it hard to juggle work with childcare responsibilities - RCMP would not let them work part-time - Ms Fox retired and Ms Fraser and Ms Pilgrim took more unpaid leave - In December 1997, RCMP began to allow job-sharing as an option instead of unpaid leave - Two or three people could split the duties of one full-time position - Benefitted both employees and RCMP - The women joined the programme and came back to work - Most people who joined the program were women with children - Most did so to balance work with childcare responsibilities – RCMP members paid into a pension plan - Received pension when they retired - Full-time members could “buy back” pension credit if they were suspended from duty or took unpaid leave - If they job-shared, were not allowed to buy back any pension credit - Job-sharers said the situation was unfair - An expert said RCMP could change the pension plan to let job-sharers buy back pension credit - RCMP committee agreed - RCMP still did not let them - The women said they should be allowed to buy back the pension credit - Said the pension plan treated job-sharers (who were mostly women with children) worse than other members - Said this breached section 15(1) Canadian Charter of Rights and Freedoms - Section 15(1) said the law should treat everyone equally, without discrimination on certain characteristics - The judge who heard Charter application said there section 15(1) not breached - Said if they were disadvantaged, was not because they were women or the fact that they had children - Was because of their own choices – CA agreed - SC majority disagreed with lower courts - Said pension plan discriminated against the job-sharers because they were women – Said pension plan breached job-sharers’ right to equality because it disadvantaged women more than men - Majority said job-sharers should be able to buy back all their pension credit – Appeal allowed.
National Stadium (Grenada) Corporation v NH International (Caribbean) Ltd  UKPC 25 (19 October 2020)
Unsuccessful appeal from Trinidad and Tobago CA - In 1997, Grenadian government engaged Imbert Construction Services ("ICS") to carry out construction work on a National Stadium for Grenada - Work largely outsourced to NH International (Contractor) - Clico Bank (Clico) agreed to fund project through a loan agreement with National Stadium Project (Grenada) Corporation (NS), a company ICS set up - Agreed that Clico would directly pay contractor’s fees - In late 1999, ICS purported to terminate its agreement with the contractor - Contractor said it was entitled to fees for work done between 1997 and 1999 - Obtained injunctions preventing Clico from advancing money to NS, and requiring Clico to deposit US$2.8m (which had been earmarked for payment to NS) into an account at the Unit Trust Corporation (UTC) pending trial - ICS and Clico subsequently went into liquidation - Contractor unlikely to be paid for its work unless it could claim to the frozen UTC account - Following a trial, Judge said contractor beneficially entitled to the US$2.8m due to a trust and/or assignment in its favour - UTC subsequently released the money to contractor - NS appealed - Appeal initially dismissed without a hearing, but in 2015 PC decided a hearing should have taken place - In 2018, CA reversed trial judge’s decision and ordered contractor to pay the money to NS - Contractor appealed to PC – PC majority dismissed NH’s appeal and confirmed CA order for NH to repay the amount of the Fund plus interest to NS.
Yearwood v Yearwood  UKPC 26 (19 October 2020)
Unsuccessful appeal from Antigua and Barbuda CA - Mr and Mrs Yearwood (the husband and wife) were formerly a married couple - They divorced – English HC made various orders against husband – Included order dated 10 May 2010 directing him to pay wife £3,144,456.80 - On 31 May 2010, wife applied to Antiguan Court to register order under the Reciprocal Enforcement of Judgments Act – Judge said order could not be registered, and set aside the registration on husband’s application - On 27 June 2013, wife applied to the Antiguan Court to register default costs certificate dated 12 November 2010 and a further High Court of England and Wales order dated 9 July 2012 - In response, husband sought declaration that wife not entitled to register English High Court judgments, orders or directives - Also sought injunction preventing wife from seeking to register judgments, orders or directives - Applied for summary judgment – Judge found for wife - Dismissed husband’s summary judgment application and granted wife’s application to register 2012 order - Judge refused wife’s application to register default costs certificate, based on application being out of time – CA dismissed husband’s appeal, but allowed wife’s counter-appeal to permit registration of the default costs certificate- Husband appealed to PC – PC dismissed appeals appeal against registration of both money judgment and costs orders.
R (on the Application of Z and anor) v Hackney London Borough Council and anor  UKSC 40 (16 October 2020)
Unsuccessful appeal from CA - Charitable objective of Agudas Israel Housing Association Ltd (Charity) was to make social housing available primarily for members of the Orthodox Jewish community in Hackney, in particular the Haredi community - made properties available via an online portal operated by Hackney London Borough Council (Council), also open to applicants for social housing whom the Council identified as having a priority need - Council could not compel Charity to take tenants who did not fall within scope of its charitable objective and its selection criteria - Principal appellant (appellant) a single mother with four small children, two of whom had autism - Council identified appellant as having priority need for social housing in a larger property, and housed her in such a property - However, she had to wait longer to be allocated suitable housing as she was not a member of the Orthodox Jewish community - Larger properties Charity owned which became vacant were not available to her - Issued proceedings against Council and Charity, alleging she had suffered unlawful direct discrimination on grounds of race or religion contrary to Equality Act 2010 - Divisional Court dismissed claim and CA dismissed her appeal – SC said Equality Act 2010 made it unlawful to discriminate directly against any person on the basis of certain characteristics, known as protected characteristics - Included ‘race’ and ‘religion or belief’ - However, Act set out exemptions where certain actions would not be considered unlawful direct discrimination - Section 158 provided one exemption where positive action addressed, in a proportionate manner, needs or disadvantages connected to a protected characteristic - Section 193 set out two further exemptions - Section 193(2)(a) permitted charities to restrict benefits to those with a protected characteristic if that restriction was a proportionate means of achieving a legitimate aim - Section 193(2)(b) permitted charities to restrict benefits to those who shared a protected characteristic if the restriction sought to prevent or compensate for a disadvantage linked to the characteristic – Here Charity entitled to adopt a clear and strict rule about who could and could not apply for its social housing, which meant that it was made available just for members of the Orthodox Jewish community, to ensure that its charitable activities were focused on that community, so that its activities did in fact fulfil its charitable objective to alleviate the problems of that community – Appeal dismissed.
R (on the Application of Highbury Poultry Farm Produce Ltd) v Crown Prosecution Service  UKSC 39
Unsuccessful appeal from CA - Highbury Poultry Farm Produce Ltd (HPFPL) operated a poultry slaughterhouse - Average throughput was 75,000 chickens per day, equating to 19,500,000 or so chickens per annum - Birds had legs shackled to a moving line and were then submitted to a number of sequential processes, including stunning, bleeding and scalding - On 31 August, 12 September and 5 October 2016 a chicken went into the scalding tank (where its feathers would be removed) while still alive because its neck had not been properly cut by a certified operative - HPFPL charged with two offences in respect of each of the three incidents: (i) failure to comply with article 3 of an EU Regulation, which required that animals should be spared avoidable suffering during their killing, also contrary to regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (the WATOK Regulations 2015); and (ii) failure to comply with article 15(1) of the EU Regulation by failing to sever the carotid arteries and verify that the animal presented no signs of life before scalding, also contrary to regulation 30(1)(g) of the WATOK Regulations 2015 - Trial judge dismissed HPFPL’s argument that regulation 30(1)(g) of the WATOK Regulations required proof of mens rea (ie proof that the defendant had knowledge of the factual circumstances constituting the alleged offence) or culpability on the part of the defendant - HPFPL challenged this ruling through judicial review - Divisional Court said there was a presumption that the WATOK Regulations 2015 required proof of mens rea, but that presumption was displaced, not least due to social concern regarding animal welfare - HPFPL appealed to SC – SC unanimously dismissed appeal - Said both offences were strict liability offences – Business operator negligence did not have to be proved – Appeal dismissed.