New Zealand Law Society - Supreme Court roundup 17 - 23 September 2021

Supreme Court roundup 17 - 23 September 2021

Supreme Court roundup 17 - 23 September 2021

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

New Zealand Supreme Court 

Costs, principles regarding awards

Middeldorp v Avondale Jockey Club Inc [2021] NZSC 117

Unsuccessful leave application – M sought to appeal CA costs decision relating to judicial review - Challenged lawfulness of two decisions to suspend him from Club committee, decisions to decline the 14 applications for membership and the committee’s operation with less than 10 members and without otherwise complying with Club rules – HC said Club amenable to review, found for M on suspension issue, because committee did not have power to suspend, but against M on all other aspects of his claim - HC said suspensions unlawful, but declined to grant declaration - Separate judgment, awarded costs to Club as successful party - Costs  calculated on a 2B basis, but with 15 percent discount for M’s success on suspension and amenability issues - Total costs were $18,955 - M appealed substantive judgment to CA - CA allowed appeal only to  extent that it considered HC wrong not to have made a declaration that he was suspended unlawfully – Appeal otherwise dismissed – M asked HC to reconsider costs award – HC increased discount from 15 to 25 percent – M appealed second costs judgment to CA – CA said no HC error – M sought leave to appeal to SC – SC said predictability and certainty regarding costs awards important, and costs discretion must be exercised in a principled way – Not persuaded gave rise to principles issue here – Rather related to particular facts – Application dismissed.


Special patient, detention

M v Attorney-General (in Respect of Ministry of Health) and ors [2021] NZSC 118 (17 September 2021)

Successful appeal - After an incident in September 2001, M charged with assault with intent to rob - Found to be unfit to stand trial - Detained first as special patient under Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act) and then as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) - Detention deemed to be under s 24(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) - In January 2009, criminal proceedings against him were stayed and he was transferred to a lower status: detention as a care recipient not subject to the criminal justice system -  He continued as a care recipient until his release in December 2013 – M commenced proceedings challenging various aspects of his detention - Failed on all issues raised before lower Courts - SC gave him leave to appeal from CA on one issue: whether he was unlawfully detained after 20 December 2008 until 14 January 2009 – SC allowed the appeal and made declaration that M was detained unlawfully from 21 December 2008 until 14 January 2009 – Appeal allowed.

Security for costs, abuse of process

Siemer v Auckland High Court and anor [2021] NZSC 120 (20 September 2021)

Unsuccessful leave application – Self-represented S filed judicial review proceedings seeking mandamus against Auckland HC Judge - Proceedings struck out under rr 5.35A–C of the High Court Rules 2016 - Filed notice of appeal to CA along with application to dispense with the requirement to lodge security for costs - Deputy Registrar declined to waive security for costs requirement – S then sought review of the Deputy Registrar’s decision, which was dismissed because proceedings could be viewed as “frivolous, vexatious and an abuse of process of the Court” – Sought leave to appeal CA decision which upheld the Deputy Registrar’s decision to decline to waive security for costs – SC said nothing S raised satisfied criteria in s 74(2) of the Senior Courts Act 2016 – Recent SC decision applied here - Proposed appeal did not raise matter of general or public importance and related only to the particular circumstances here - Nor was there a risk of a substantial miscarriage of justice – Application dismissed.

Companies Act, director liability

Arnerich v DHC Assets Ltd [2021] NZSC 121 (20 September 2021)

Unsuccessful leave application – HC found A liable to DHC Assets Ltd (DHC) under ss 131 and 301 of the Companies Act 1993 - On appeal and cross-appeal to CA was substantially unsuccessful – Sought leave to appeal to SC against CA judgment – SC said arguments A wished to raise faced various difficulties - Proposed appeal raised no issue of general or public importance and no appearance of a miscarriage of justice – Application dismissed.

Self-represented litigant, long-running litigation, restraint order

Mawhinney v Auckland Council [2021] NZSC 122 (21 September 2021)

Unsuccessful leave application – Self-represented M and companies associated with him have been involved in litigation against Auckland Council, or one of its predecessors, for around 25 years - Litigation largely arose in the context of endeavours to subdivide some 120 hectares of land in the Waitākere Ranges - The Council sought an extended order under s 166(4) of the Senior Courts Act 2016 to restrain M (in his personal capacity and as trustee) and associated entities from commencing or continuing civil proceedings against relating to the Waitākere land without HC leave - HC made an extended order for a five year period commencing in February 2019 - M appealed from that decision to CA - Appeal was allowed to the extent that order term was reduced to three years - Meant expires in February 2022 - An extended order under s 166(4) may be made “if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit”.

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