New Zealand Law Society - Supreme Court roundup 10 - 16 September 2021

Supreme Court roundup 10 - 16 September 2021

Supreme Court roundup 10 - 16 September 2021

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

New Zealand Supreme Court 

Judgment recall

Siemer [2021] NZSC 111 (9 September 2021)

Unsuccessful recall application – S applied to recall SC s judgment of 25 June 2021 where Court declined an application to recall an earlier judgment of 28 May 2021 - Application principally based on notion that Court dismissal relied on a materially incorrect premise and recall in the public interest - Nothing S raised provided any basis to recall judgment – Exception to order suppressing judgment in [2020] NZSC 97 applied only to publication in a law report or law digest - Apart from such publication, publication prior to the final disposition of trial would breach Court’s orders - Application dismissed.


Defamation, qualified privilege

Craig v MacGregor [2021] NZSC 112 (9 September 2021)

Unsuccessful leave application – C sought leave to appeal from CA’s dismissal of appeal against HC decision ruling, relevantly, that C liable in damages to Ms M for defamation - Application arose from fall-out from Conservative Party collapse after the 2014 general election - Facts led to a number of other proceedings following one that settled – This proceeding began as a claim C brought against M, to which she filed a defence and a counter-claim – Effectively what remained was M’s claim for damages for defamation - Leave sought on ground that question of general or public importance arose over scope of qualified privilege defence when the right to reply to an attack was invoked – C wished to argue that CA approach of the Court of Appeal contradicted SC approach  in another case involving C – C said CA unduly limited qualified privilege defence for reply to an attack – SC did not see proposed appeal as ultimately raising questions about settled principles – Proposed appeal raised no issue of general or public importance - Nor, given fact findings in lower courts was there appearance of a miscarriage of justice – Application dismissed.

Recall application, self-represented litigant

Murray v West Coast Holdings Ltd [2021] NZSC 114 (9 September 2021) 

Unsuccessful recall application – SC had dismissed self-represented M’s application for time extension to file leave application – Applied to recall judgment because he said leave application within time – SC said M attempted to file an application for leave to appeal within time, but it was not in the prescribed form -  leave application that met the procedural requirements was out of time – SC said even if M had been correct, and the application had been filed within time, no utility in recalling the decision – SC had said application could not have succeeded – Application dismissed.


Recall, bankruptcy

Whittington v UDC Finance Ltd [2021] NZSC 113 (10 September 2021) 

Unsuccessful recall application – Self-represented W applied to recall SC Judgment declining to grant stay of his bankruptcy adjudication – Also sought leave to adduce a range of materials in support of his application – Basis for application appeared to be that for some very special reason, justice required judgment declining a stay to be recalled – Nothing advanced in either original or amended applications which would warrant a recall of decision not to grant a stay - Nor did further materials meet the established guidelines for admissibility in terms of r 40 of the Supreme Court Rules 2004 – Both applications dismissed.


Security for costs, CA jurisdiction

Harrison v Harrison and ors [2021] NZSC 115 (13 September 2021)

Unsuccessful leave application – Self-represented H wanted to appeal to proceed with an appeal to CA without putting up security for costs – Had applied for ex parte application for a “declaration of inconsistency” between CA security for costs rules and ss 145 and 148 of the Senior Courts Act 2016 – CA dismissed application for two reasons: (a) issue which H wished to raise not able to be appropriately dealt with on an interlocutory ex parte application; and (b) the application not within CA jurisdiction and should have been brought in HC - She sought leave to appeal to SC - Application raised question of whether the requirements of Court of Appeal (Civil) Rules 2005 on security for costs were ultra vires – SC agreed with CA that it did not have jurisdiction to deal with the application in the form in which it was advanced – Was arguable, however, that CA could have dealt with the point H wished to argue – SC said challenge to the validity of the rules had insufficient prospects of success to justify the granting of leave – SC also doubtful  jurisdiction to order security for costs came from security for costs rules - Rules of court did not confer jurisdiction which did not otherwise exist - Rather, they regulated how jurisdiction which independently existed was exercised – Application dismissed.


Three strikes regime, Aggravated robbery

Murahi v R [2021] NZSC 116 (13 September 2021) 

Unsuccessful leave application – Three strikes regime – M committed a series of aggravated robberies - Sought leave to appeal to SC from CA – Said second and third strike consequences applied only where, in respect of qualifying convictions, written notices of consequences were provided, in addition to recorded oral warnings -  Also said insufficient evidence for CA to conclude that he had received both warnings on both occasions where warnings given  - SC said not necessary in the interests of justice to hear the proposed appeal - Did not see point of law as arising given CA’s fact findings and that M not resentenced - As well, plainly been no miscarriage of justice here – Application declined.

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