New Zealand Law Society - Supreme Court round up 27 August - 2 September 2021

Supreme Court round up 27 August - 2 September 2021

Supreme Court round up 27 August - 2 September 2021

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

New Zealand Supreme Court

Employment settlement agreement, non-publication orders

B v ALA [2021] NZSC 105 (27 August 2021) 

Unsuccessful leave application - Parties settled an employment dispute and, in mid-2014, entered settlement agreement which included confidentiality provisions - A took enforcement action relating to  settlement agreement - Employment Court made permanent non-publication orders in 2016 - Subsequently, another court delivered a judgment where parties were identified – Self-represented B then applied to Employment Court to change the Court’s non-publication orders – Said Employment Court non-publication orders undermined and effectively annulled – Employment Court dismissed application – B applied out of time for leave to appeal decision to CA – CA declined application - CA anonymised its judgment - B sought leave to appeal to SC – SC said proposed appeal would essentially have SC re-visit arguments CA addressed - CA said S’s explanation for “considerable” delay not persuasive, but delay had not caused particular prejudice to A - Application still dismissed because proposed appeal had no merit – CA said  publication “limited” given the various other judgments in the proceedings were anonymised – Nor did CA consider publication had any impact on non-publication orders’ effect – CA applied settled principles – No question of general or public importance - Key question regarding merits of proposed appeal was weight attached to publication of the identifying material -  CA made considered assessment - Nothing B raised gave rise to appearance of a miscarriage of justice – Application dismissed.

Bankruptcy, stay application

Whittington v UDC Finance [2021] NZSC 106 (27 August 2021) 

Unsuccessful stay application – HC adjudicated self-represented W bankrupt on 25 March 2021 -  Followed non-payment of $4,590.98 costs order imposed in proceedings W brought against UDC Finance Ltd which he discontinued - Subsequently, Associate Judge declined W’s application to stay the adjudication order pending appeal – W filed appeal against the bankruptcy decision in CA - Required to pay security for costs for appeal – Unsuccessfully sought dispensation from payment – Judge confirmed deputy registrar’s decision – W applied for leave to appeal judge’s decision to SC and for stay of adjudication – SC said no basis for stay – Application dismissed.

Charging orders, delay

Sharma v Wati [2021] NZSC 107 (30 August 2021) 

Unsuccessful leave application – Self-represented S sought leave to appeal against CA decision declining to grant him an extension of time to file a case on appeal - Application against litigation background between parties since their separation in 2000 - S owed over $39,900 in costs and interest to W from the litigation – Various steps led to HC charging orders against S’s share of family home – S two days late filing case on appeal with CA – Sought leave to appeal CA timing decision to SC – SC said proposed appeal would have it reprise arguments made in CA - When declining to grant time extension CA acknowledged the delay minimal and caused no prejudice to W -  Said that appeal’s prospective merits were “clearly hopeless” - No challenge to principles CA applied to time extension - No question of general or public importance arises in that respect - Regarding Court’s assessment of prospective merits of proposed appeal, nothing S raised questioned CA approach - No appearance of a miscarriage of justice in CA assessment of matters S relied on – Application dismissed.

High Court of Australia

Migration detention, not within reach of aliens’ power

Chetcuti v Commonwealth of Australia [2021] HCA 25 (1 September 2021) 

Unsuccessful appeal from HC single judge – C challenged his detention under the Migration Act 1958 (Cth) saying he was not within the reach of the legislative power concerning aliens conferred by s 51(xix) of the Constitution (aliens power) – C  born in Malta on 8 August 1945, then still a United Kingdom colony - Arrived in Australia on 31 July 1948 - At the time of his arrival, C a British subject under the Nationality Act 1920 (Cth) - Subsequently retained that status under the Australian Citizenship Act 1948 (Cth) from its commencement on 26 January 1949 through to abolition of that status on 1 May 1987 (other than during a short period between 1964 and 1965) - In 2017, referring to C’s conviction in 1993 of murder, and after he served 24 years’ imprisonment, it was decided to cancel C’s visa and he was detained - Challenging detention, C argued for an exception to the settled understanding that generally open to the Parliament to treat as an alien any person who was born outside Australia, whose parents were not Australians, and who had not been naturalised as an Australian - Exception C contended related to a person who was a natural born British subject and who commenced residing permanently in Australia before 26 January 1949 – C said status of a non-alien attached indelibly to a person in that category either because person was born within the allegiance of an as yet undivided Imperial Crown or because Parliament once and for all determined the person not to be an alien under the Nationality Act - At first instance, the single justice concluded said C was within reach of the aliens power ruled for the Commonwealth – HC majority dismissed the appeal - Said open to the Parliament when exercising aliens power, through prescription of the criteria for the conferral of Australian citizenship set out in the Australian Citizenship Act, to deny C Australian citizen status and treat him as an alien in the transition that occurred on the commencement of that Act on 26 January 1949 – C’s problem was that he did not take the available course of action under the Australian Citizenship Act to become an Australian citizen after that date – Appeal dismissed.

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