New Zealand Law Society - Supreme Court Roundup 2 - 8 July

Supreme Court Roundup 2 - 8 July

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

New Zealand Supreme Court

New evidence, admissibility

Ellis v R [2021] NZSC 77 (1 July 2021)

Unsuccessful application to adduce new evidence – Crown sought leave to adduce evidence at the hearing of E’s appeal - Proposed evidence an affidavit from a deponent that E sexually abused her in 1982 or 1983, and other material that related to alleged sexual abuse incident – SC said no reason to depart from well-established test for the admission of fresh evidence in a criminal appeal - No dispute that proposed evidence fresh - Admissibility assessment required considering reliability and cogency relating to major issue in appeal – SC had  concerns about reliability of the key aspect of the proposed evidence (deponent’s statement that E perpetrator) and not convinced that proposed evidence cogent in relation to the grounds of appeal Crown identified – Application dismissed.

Recall application, form wanting

Houghton v Saunders and ors [2021] NZSC 76 (2 July 2021)

Unsuccessful application to recall judgment – SC received a document headed “Memorandum opposing costs awards and in support of claimants’ application for recall of judgment of the Supreme Court dated 6 May 2021 on grounds of alleged accounting fraud at Feltex Carpets Limited in 2004 by certain respondents” - Application did not seek an amendment or correction to leave judgment - Rather, sought recall and, effectively, annulment of judgment pending investigations into allegations of fraud against S and others - Document irregular in many respects, including person filing document not a lawyer and document contained fraud allegations – Application dismissed.

Further evidence, excess breath alcohol

Singh v Police [2021] NZSC 78 (2 July 2021)

Unsuccessful application to adduce further evidence – S convicted of driving a vehicle with the proportion of alcohol in his breath exceeding 400 mcg of alcohol per litre of breath – HC dismissed his appeal – Applied to CA for leave to bring second appeal – Sought to challenge HC rejection of arguments in DC and a new ground – CA dismissed appeal – In SC also raised issue not considered in courts below and evidence to support issue – Clear that if S had sought leave in CA, CA would have rejected application – Also no matter of general or public importance and fact specific – Application dismissed.


Re Cullum [2021] NZSC 80 (2 July 2021) 

Unsuccessful recall application – Self-represented C applied to recall Judge’s decision to uphold deputy registrar’s decline of filing fee waiver – also applied for name suppression of decision and all lower court decisions – Nothing C raised suggested case came within recall criteria – Appropriate to apply in lower courts for name suppression in those courts – Regarding SC, no grounds raised to counter open justice presumption – Applications dismissed – Registrar directed to reject further applications or documents relating to matter.

Time extension, leapfrog appeal

Warren v R [2021] NZSC 79 (5 July 2021) 

Unsuccessful application for time extension, leapfrog appeal - In March 2017, self-represented W convicted after HC jury trial of two charges of attempted murder, one charge of using a firearm against a law enforcement officer and one charge of wounding with intent to cause grievous bodily harm - In August 2017, sentenced to preventive detention with MPI 10 years - In September 2017, he appealed to CA against conviction and sentence. However, in September 2018, he notified the Court of Appeal that he was withdrawing his appeal -  In December 2018, filed a formal notice of abandonment of his appeal to CA - On 2 February 2019, CA issued a notice of result certifying that the appeal had been abandoned – Sought leave for leapfrog appeal to SC against convictions and sentence. His notice of application for leave to bring a criminal appeal was filed in this Court on 19 May 2021 - Had earlier filed a notice of appeal to CA on 2 March 2021 - Counsel for the Crown described this document as an application to withdraw the notice of abandonment of W’s earlier appeal to CA, but W was a fresh appeal - Whatever it was, sought to engage CA jurisdiction to challenge his convictions and sentence – SC said under s 75  Senior Courts Act 2016, SC must not give leave for a leapfrog appeal unless satisfied that it was in the interests of justice for the Court to hear and determine the appeal, applying the criteria in s 74, and, in addition, that there were exceptional circumstances that justify taking the proposed appeal directly to SC – Also in addition, necessary for W to satisfy SC he should be granted an extension of time to apply for leave to appeal to SC given notice of application for leave more than three years out of time - SC not satisfied any proper basis to allow him to pursue leapfrog appeal at the same time as he is seeking to challenge his convictions and sentence in CA - Appropriate course to allow CA proceedings to run their course – Application dismissed.

Supreme Court of Canada

Courts, jurisdiction, constitution

Successful appeal from Québec CA - Art. 35 para. 1 of Québec’s new Code of Civil Procedure (CCP) came into force in 2016 - Granted Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000 - Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of Québec Superior Court filed an originating application seeking a declaratory judgment of unconstitutionality of art. 35 para. 1 CCP in the Superior Court – Said provision not compatible with s 96 Constitution Act 1867 because its effect was to deny Québec litigants the right to file any civil claim in Superior Court in which the value of the subject matter of the dispute is less than $85,000, thereby preventing the Superior Court from stating and advancing the law with respect to such claims - Also contested appellate jurisdiction granted to Court of Québec with respect to certain administrative decisions because requirement of deference recognized in the case law not compatible with the superior courts’ judicial review power -  In response, Québec government filed with CA, by order in council, a notice of reference submitting two questions to it: (1) Was art. 35 para. 1 CCP valid with regard to s96  and (2) Was application of the obligation of judicial deference, which characterised application for judicial review, to administrative appeals to the Court of Québec compatible with s 96 –

On first question, CA said art. 35 unconstitutional because it infringed on core jurisdiction of the Superior Court to adjudicate certain substantial civil disputes - On the second question, CA said applying the obligation of judicial deference to administrative appeals to the Court of Québec was compatible with s 96 because the Superior Court retained its full superintending and reforming power over administrative decisions and decisions of inferior tribunals as well as its fundamental role as the guardian of an independent and unified system of justice in Canada - Conférence des juges de la Cour du Québec, Conseil de la magistrature du Québec and Canadian Association of Provincial Court Judges, interveners in CA, and Quebec Attorney General appealed to SC on first question - Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of Québec Superior Court, who also intervened CA, appealed to SC on second question - On the first question, SC majority of the judges said article 35 was unconstitutional – Said when the Constitution enacted in 1867, monetary ceiling for lower courts was $100 - Based on expert evidence, they agreed that this amount would be equivalent to between $63,698 and $66,008, Canada-wide, today - However, they said that establishing this amount only a first step in the analysis, and that a determination on whether the new ceiling amount was actually too high depended on several other factors - Majority said monetary increase gave the Court of Québec exclusive jurisdiction to handle too wide a range of legal matters - This, prevented Superior Court from exercising its constitutionally protected right to decide on many legal matters at the heart of Québec private law – Said monetary ceiling of less than $85,000 too high for Court of Québec - Also said provincial government failed to prove  access to justice facilitated by increase in the monetary ceiling for cases heard by the Court of Québec – SC did not answer second question - Said was irrelevant given another recent SC decision and given the effects of a recent Québec law which limited how Court of Québec exercised its appeal powers over administrative decisions.

Judicial Committee of the Privy Council

Clark and ors v The State [2021] UKPC 16 (28 June 2021)

Partially successful appeal from Trinidad CA - C and M (C)  tried with seven other men for murder - Case against them was under a plan orchestrated by one of their co-accused, B, they kidnapped victim and handed her over to other gang members who threatened, assaulted and ultimately killed her – C’s involvement ended once they had handed over the victim - C convicted of manslaughter and sentenced to thirty years’ imprisonment with hard labour - Jury not able to reach a verdict regarding B and some gang members allegedly involved in the infliction of violence leading to the victim’s death – C’s appeals to CA against conviction dismissed - PC granted C permission to appeal on the ground that  defence was prevented from cross-examining the key prosecution witness about false statements he had made - Third individual who was convicted of manslaughter in the same trial as C  (and whose conviction was upheld on appeal) was McG -  No application for permission to appeal was made on his behalf at the time because Mr McGillvery had escaped from prison on 31 August 2015 - Was recaptured by police on 21 July 2017 – In  application dated 1 March 2019, McG joined to the appeal – PC came to clear view that no substantial miscarriage of justice occurred regarding C – Appeal dismissed – However, McG’s appeal allowed – PC asked prosecution if it sought McG’s retrial.

United Kingdom Supreme Court

Tort, causing loss by unlawful means, “dealing requirement”

Secretary of State for Health and anor v Servier Laboratories and ors [2021] UKSC 24 (2 July 2021) 

S developed and manufactured a medicinal product perindopril, used to treat cardiovascular diseases including high blood pressure - European Patent Office (EPO) granted a patent for the alpha crystalline form of perindopril salt in 2004 – EPO Opposition Division upheld patent in July 2006 – S defended and sought to enforce UK designation of the patent in proceedings before the English courts, in particular by obtaining injunctions - Issue of  validity of UK designation of the patent went to trial and, in July 2005, HC said it was invalid as it lacked novelty or alternatively was obvious over another existing patent- CA upheld decision in May 2008 - In 2009, EPO Technical Board of Appeal revoked the patent – Secretary and another (Secretary)  funded cost of drugs NHS  dispensed  - Alleged that in obtaining, defending and enforcing the patent, S practised deceit on the EPO and/or the courts, with intention of profiting at Secretary’s expense - In particular, alleged representations  made about novelty and/or lack of obviousness of product S knew to be false, or that were made with reckless indifference as to their truth – Secretary alleged deceit meant manufacturers of generic perindopril did not enter the market as early as they otherwise would have done - Would have driven down perindopril price – Secretary consequently had to pay higher prices - Conduct  said to form basis of an unlawful means tort claim, in which damages and interest in excess of £200m sought - On 2 August 2017, HC struck out Secretary’s unlawful means tort claim - On 12 July 2019, CA dismissed Secretary’s appeal - Both HC and CA said HL majority in a 2008 case (OBG) said dealing requirement a necessary element of unlawful means tort - Common ground that neither the EPO nor the courts had dealt with secretary – Both HC and CA said HL decision binding on them –

Secretary appealed to SC, contending dealing requirement should not be treated as forming part of the ratio of HL case and courts below wrong to consider themselves bound (issue 1) - Alternatively, said SC should depart from HL case and dispense with the dealing requirement (issue 2) – SC unanimously dismissed appeal – On Issue 1, SC agreed with courts below courts below dealing requirement part of OBG ratio - First, consistent with Lord Hoffmann’s explanation of the rationale of the unlawful means tort, which to preserve a person’s liberty to deal with others. Secondly, clear from the wording and structure of Lord Hoffmann’s speech that he regarded dealing requirement as an essential element of the tort - Thirdly, Lord Hoffmann explained and justified dealing requirement through his analysis of a number of key authorities - Fourthly, dealing requirement is consistent with the authorities in which liability for the unlawful means tort has been established, which all involved dealings - Fifthly,  dealing requirement consistent with concern that the tort be kept within reasonable bounds - Sixthly, apparent that other majority members understood Lord Hoffmann’s definition of the tort to include a dealing requirement and endorsed it on that basis - Seventhly, OBG understood to impose a dealing requirement by the courts both in this country and elsewhere in the Commonwealth, such as New Zealand, Singapore, Australia and Canada – On Issue 2 SC said could see no reason to depart from OBG – Appeal dismissed.

Taxation, trust, “round the world” scheme

R (on the Application of Haworth) v Her Majesty’s Commissioners for Customs and Revenue [2021] UKSC 25 (2 July 2021)

Unsuccessful appeal from CA by Commissioners – H established a trust to benefit himself and his family which held shares in a company - To avoid capital gains tax on the disposal of shares the trust held H advised that existing Jersey trustees should resign in favour of trustees resident in Mauritius - Arrangement, known as a ‘round-the-world’ scheme, designed to take advantage of a double taxation treaty between the United Kingdom and Mauritius - H and his advisers enacted the scheme in 2000 - In 2016, HMRC sent a “follower notice”, which rendered recipient liable to a penalty if he does not take steps to counteract or surrender a tax advantage, and an accelerated payment notice, which required up-front payment of the disputed tax - H initiated judicial review proceedings of HMRC’s decision to issue these notices -  At first instance, H unsuccessful. However, CA allowed H’s appeal and quashed the notices – HMRC appealed to SC – SC unanimously dismissed appeal and upheld CA decision quashing notices.

South African Constitutional Court

Direct access to Constitutional Court, contempt of commission, contempt of court

Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and ors [2021] ZACC 18 (29 June 2021)

Successful application for direct access to Constitutional Court (CC) – In December 2020 Secretary approached CC  urgently for order to compel Z’s co-operation with the Commission’s investigations and objectives - On 28 January 2021, CC ordered Z to file affidavits and attend  Commission to give evidence before it - Z released public statement - Alleged Commission and CC were victimising him - From 15 to 19 February 2021, Z did not attend Commission as ordered -  Commission Chairperson said it would launch contempt of court proceedings - On same day, Z published another statement  seriously criticising Judiciary and confirmed he would neither obey CC order nor co-operate with Commission – Secretary applied urgently to CC – Said court that granted an order retained jurisdiction to ensure its compliance – Said, considering Z’s former and current political position, his conduct constituted a particularly reprehensible attack on the rule of law and posed serious risk that it would inspire others to similarly undermine the administration of justice – Said Z guilty of crime of contempt of court as he had failed to comply with the order – Also, ostensibly defending his contempt, Z conducted a politically-motivated smear campaign against CC, Commission and  Judiciary - Constituted an aggravating factor relevant to determining appropriate sanction - In such unprecedented circumstances, apposite for CC to urgently respond and only a punitive sanction, in the form of an unsuspended order of imprisonment for two years, would be appropriate - Z did not oppose this application, or file any submissions – CC agreed matter engaged its jurisdiction and circumstances warranted granting direct access urgently - Contempt of court proceedings existed to protect rule of law and Judicial authority - Any disregard of CC order required its intervention - Neither public’s vested interests, nor the ends of justice, would be served if matter had been required to traverse the ordinary, and lengthy, appeals process - In interests of justice to urgently grant direct access – Application granted – Z sentenced to 15 months imprisonment.

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