New Zealand Law Society - Supreme Court roundup 11-17 February

Supreme Court roundup 11-17 February

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

New Zealand Supreme Court

Child sex offender registration, coverage, offence before registration came in

D (SC 31/2019) v NZ Police [2021] NZSC 2 (9 February 2021)

Successful appeal from CA - D pleaded guilty to two offences under the Films, Videos, and Publications Classification Act 1993 - One of the offences related to the possession of child pornography, a “qualifying offence” for the purposes of the e Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) - Offending occurred in May 2016, before the Act came into force - D sentenced to nine months’ home detention (a non-custodial sentence) in January 2018 - DC also made a registration order under s 9(1) of the Act – D appealed making of the registration order to both HC and CA - Both appeals dismissed, and the order upheld - D granted leave to appeal to SC - Appeal raised two primary issues - First whether the Act applied to D at all, given he committed the qualifying offence before the Act came into force. - Section 6(1) of the Sentencing Act 2002 said where penalty for an offence varied between time offence committed and the time of sentencing, offender entitled to benefit of lesser penalty - Subsection (2) provides said offender entitled to benefit of the lesser penalty despite any other enactment or rule of law - Same right is conferred on everyone charged with a criminal offence by s 25(g) of the New Zealand Bill of Rights Act 1990 - Second issue whether registration order should have been made in D’s case (assuming the Registration Act applied) - Issue required SC to consider correct approach when a court decided whether to make a registration order under s 9 of the Act - Argument on this focused on the relevance of the New Zealand Bill of Rights Act to decisions under s 9 – SC majority allowed the appeal and quashed DC registration order – Appeal allowed.

Supreme Court of Canada

Contract, good faith, arbitration

Wastech Services v Greater Vancouver Sewerage and Drainage District [2021] SCC 7 (5 February 2021)

Appeal from British Columbia CA - Wastech Services Ltd. (Wastech) was a company that moved and disposed of waste - Greater Vancouver Sewerage and Drainage District (Metro) was responsible for the administration of waste disposal in the district - Wastech and Metro had a long-term contract - Contract was for Wastech to remove and transport waste - Contract said Metro could choose to send the waste to any of three different disposal sites - Wastech would be paid a different rate depending on which site was chosen - Wastech paid more if site was farther away - However, contract aimed to pay Wastech a “target operating ratio” of .89, meaning costs were 89% of revenue, and it did not guarantee a specific operating ratio in any given year - Contract also gave Metro discretion to send waste to the site it chose - In 2011, Metro decided to send more waste to a closer location - This meant Wastech did not reach the target operating ratio - Wastech said Metro violated the contract - Contract said any legal disagreement should go to arbitration - Wastech told the arbitrator Metro violated the contract by distributing waste in a way that made Wastech unable to reach the target operating ratio under the contract - Arbitrator said the parties purposely decided not to include a clause in the contract to deal with a situation where the distribution of waste made it impossible for Wastech to reach the target operating ratio – Arbitrator said Metro was allowed to use its discretion in a way that had a negative financial impact on Wastech - But Metro had a duty to act in good faith when using this discretion - Metro breached its duty by using its discretion in a way that prevented Wastech from having any chance of meeting the target operating ratio - Therefore, Wastech was entitled to compensation - The courts allowed Metro to appeal the arbitrator’s decision - Judge set aside the arbitrator’s award, because the duty the Arbitrator applied contradicted the contract the parties made - CA upheld the judge’s decision - CA said the arbitrator applied the wrong legal test, and extended the duty of good faith further than the law allowed - SC upheld the lower courts’ decisions, setting aside the arbitrator’s award - SC said good faith did not allow a contracting party to use its discretion unreasonably - SC considered discretion is used unreasonably when used in a way that was unconnected to the purposes for which the parties agreed to have discretion in the first place - Here, contract showed the parties agreed to give Metro discretion, so Metro could operate efficiently and keep costs low - Contract did not require Metro to use its discretion to ensure Wastech reached its target operating ratio in any given year – SC majority said Metro exercised its discretion for the right purposes - Metro did not violate the duty to act in good faith – Appeal allowed.

High Court of Australia

Immigration, administrative law, AAT, character test, Ministerial powers

Minister for Border Protection v Makasa [2021] HCA 1 (3 February 2021)

Unsuccessful appeal from Full Court of Federal Court – Reasons for unanimous HCA decision on 12 November 2020 - Issue whether Minister for Immigration and Border Protection (Minister) could re-exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) (Act) to cancel a visa on character grounds after the Administrative Appeals Tribunal (AAT) had set aside a delegate of the Minister’s prior decision to cancel the visa, and substituted the decision that the visa should not be cancelled - Following AAT's decision, M subsequently convicted and sentenced for two further offences involving failing to comply with reporting obligations and driving under the influence of alcohol - Satisfied that M failed to pass the character test solely because of the sentences imposed in respect of the earlier convictions that formed the basis of the first cancellation decision, but taking the subsequent convictions into account, Minister personally purported to re-exercise the s 501(2) power to cancel M’s visa – M applied to FCA to judicially review Minister's decision - Application dismissed at first instance - On appeal, a Full Court majority, allowed M’s appeal - Minister appealed to HCA - HCA upheld Full Court orders but gave different reasons for its decision – HCA referred to AAT’s merits review function – Said that was "to do over again" what the primary decision-maker did - Function would be reduced to a mockery where the primary decision-maker could re-exercise the same statutory power AAT had already re-exercised - Also, s 501A of the Act, conferred a power on the Minister to personally re-exercise the s 501(2) power in certain circumstances – HCA said existence of special power, subject to limitations and qualifications, meant general power s 501(2) conferred could not be exercised to do that which was the subject of the special power – This meant Minister could only re-exercise the power under s 501(2) either relying on s 501A or where subsequent events or further information provided a different factual basis for forming a reasonable suspicion that the person does not pass the character test – Appeal denied.

Administrative law, apprehended bias, jurisdictional error

Oakey Coal Action Alliance v New Acland Coal Pty Ltd [2021] HCA 2 (3 February 2021)

Successful appeal from Queensland CA - issue was whether, after finding that apprehended bias affected Land Court of Queensland (Land Court) recommendations, CA should have referred all matters back to the Land Court for full reconsideration, instead of making consequential orders limited to a declaration that procedural fairness had not been observed – New Acland Coal Pty Ltd (NA) operated an open-cut coal mine near Oakey in Queensland - Seeking to expand the mine, NA applied for additional mining leases and an amendment to its existing environmental authority - Oakey Coal Action Alliance Inc (Oakey) and others objected to each application - Land Court recommended that both applications be rejected – Land Court’s first decision: issues included noise, groundwater and intergenerational equity - On judicial review, the Queensland Supreme Court (SC) rejected New Acland's arguments that Member's conduct during the hearing gave rise to apprehended bias, but said errors of law affected recommendations and certain matters should be referred back to the Land Court for a different Member to consider - SC said parties bound by the findings and conclusions reached in the Land Court's first decision on all issues other than those affected by errors of law, and also by the factual findings on noise - Following a different Member’s reconsideration Land Court recommended NA’s applications for mining leases and an amendment to its environmental authority be approved subject to conditions (Land Court's second decision) - Amendment to NA’s environmental authority was subsequently granted by a delegate of the Chief Executive of the Department of Environment and Science (Chief Executive) - On appeal from SC decision, CA allowed NA’s cross-appeal saying apprehended bias affected recommendations in the Land Court's first decision - However, rather than setting aside SC’s qualified order for referral back and remitting the matter to the Land Court for full reconsideration, CA made consequential orders limited to a declaration that the Land Court failed to observe procedural fairness in making the first decision – Oakey granted special leave to appeal to HCA - Oakey said Land Court's second decision was affected by the same apprehended bias CA said had affected Land Court's first decision -This was because second partly based on the first decision-maker's findings and conclusions – Said CA should have set aside the Land Court's second decision and the Chief Executive's subsequent decision to approve the variation to NA’s environmental authority – HCA said by adopting the findings and conclusions in the Land Court's first decision, the Land Court's second decision involved jurisdictional error in that it failed to observe the requirements of procedural fairness by reason of apprehended bias – HCA made orders setting aside the CA declaration – Ordered that SC’s qualified referral back order be set aside, NA’s applications be referred back to the Land Court to be reconsidered according to law, and decision of the delegate of the Chief Executive be set aside – Appeal dismissed.

Corporations Act, financial product advice

Westpac Securities Administration and anor v Australian Securities and Investment Commission [2021] HCA 3 (3 February 2021)

Unsuccessful appeal from Full Court of Federal Court – Issue whether financial product advice given by the appellants (collectively, Westpac) to members of superannuation funds of which they are trustees was "personal advice" within the meaning of s 766B(3)(b) of the Corporations Act 2001 (Cth) (Act) - During a campaign, Westpac had contacted members via phone and advised each to accept an offer to roll over their external superannuation accounts into their account with Westpac – Section 766B(3)(b) of the Act defined "personal advice" to include "financial product advice" given or directed to a person in circumstances where a reasonable person might expect the provider to have considered one or more of the person's objectives, financial situation and needs - Section 766B(4) defined "general advice" as financial product advice that was not personal advice - Act imposed more onerous obligations on an adviser who provided personal advice, obligations Westpac accepted they had breached if they had provided personal advice – SC said Westpac had provided personal advice to the members during their campaign. "Considered" in s 766B(3) referred not to an active process of evaluation and reflection but rather meant "took account of" – The words "one or more of the person's objectives, financial situation and needs" in s 766B(3) contemplated that consideration be of at least one aspect of the client's objectives, financial situation or needs - A reasonable person in the position of each of the members Westpac called would expect Westpac to have in fact taken into account at least one aspect of the member's objectives, financial situation or needs - That members' objectives were "generic" or generally applicable did not mean they ceased being personal objectives capable of giving rise to that expectation – Appeal dismissed.

United Kingdom Supreme Court

Negligence, UK domiciled parent company, duty of care, prospects of claimant success

Okpabi and ors v Royal Dutch Shell Plc and anor [2021] UKSC 3 (12 February 2021)

Successful appeal from CA -Concerned SC jurisdiction over claims in tort involving a defendant foreign company, where jurisdiction sought to be founded on alleged common law duty of care owed by a UK domiciled parent company - Similar issue addressed in recent SC decision which was relevant to both procedural and substantive issues raised here – This case involved s two sets of proceedings - In both, alleged that numerous oil spills occurred from pipelines and associated infrastructure operated in the vicinity of the appellants’ communities in Nigeria, causing widespread environmental damage including serious water and ground contamination – Appellants’ case was that oil spills were caused by negligence of a Nigerian registered company named The Shell Petroleum Development Company of Nigeria Ltd (SPDC), the second respondent which operated the pipeline and infrastructure under a joint venture - SPDC a subsidiary of the first respondent, Royal Dutch Shell plc (RDS), a UK domiciled company and the parent company of the multinational Shell group – Appellants contended that RDS owed them a common law duty of care because it exercised significant control over material aspects of SPDC’s operations and/or assumed responsibility for SPDC’s operations, which allegedly failed to protect the appellants against the risk of foreseeable harm arising from SPDC’s operations – In January 2017, HC said it had jurisdiction to try the claims against RDS, the claims did not have a real prospect of success and, as a consequence, the conditions for granting permission to serve the claim on SPDC as “necessary or proper party” to the claims against RDS was not made out - Orders were made setting aside service of the claim forms on SPDC and striking out the appellants’ statements of case insofar as they related to RDS – After a three-day hearing, CA dismissed the appellants’ appeal on 14 February 2018 – CA said HC judge erred in certain respects in his approach to the evidence - However, CA majority reached same conclusion that there was no arguable case that RDS owed the appellants a duty of care – One Judge dissented, concluding that there was a good arguable case that RDS did owe the appellants a duty – SC deferred appellants’ application for permission to appeal until after its judgment in another relevant case - Following that judgment, permission granted - This appeal raised two principal issues: (i) whether CA materially erred in law; and (ii) if so, whether the majority was wrong to decide there was no real issue to be tried – SC allowed the appeal - Reiterated importance of proportionality in relation to jurisdiction issues - Said analytical focus should be on the particulars of claim, or witness statement setting out the details of the claim and whether, on the basis that the facts there alleged were true, the cause of action asserted had a real prospect of success - Said CA materially erred in law by being drawn into conducting a mini-trial that lead to it adopting an inappropriate approach to the contested factual issues and documentary evidence - Instead of focusing on the pleaded case and whether that disclosed an arguable claim CA evaluated weight of the evidence and exercised judgment based on that evidence which was not its task at the interlocutory stage - Factual assertions made in support of the claim should be accepted unless, exceptionally, they were demonstrably untrue or unsupportable – SC said other CA errors of law were also made out - First, the majority appeared to accept a ‘general principle’ that a parent company could never incur a duty of care in respect of the activities of a subsidiary by maintaining group-wide policies and guidelines – Second, the majority may have focussed inappropriately on the issue of control - Finally, CA erred in its approach to whether a duty of care existed in this type of case – Appeal allowed.

Misrepresentation, Registration of land & Health and Safety

TW Logistics Ltd v Essex County Council and anor [2021] UKSC 4 (12 February 2021)

Unsuccessful appeal from CA - Concerned registration of land as a town and village green – SC said use of the phrase “town or village green” (TVG) conjured up a bucolic image of an area of grass where local inhabitants could walk and play – Relevant land was an area of concrete (Land) in a working commercial port – Question for SC was whether Land been validly registered as TVG land along quayside in Mistley port in Essex - T W Logistics (TWL) owned and operated Mistley port - Used Land for passage of port vehicles, including heavy goods vehicles, and temporary storage of cargo on quayside - Concurrently with these commercial activities, local inhabitants also Land to walk dogs, stop and chat on the quayside, and for general recreation – The two sets of activities co-existed for many years – In September 2008, following concerns about people falling into the water and a Health and Safety Executive threat of enforcement action, TWL erected a 1.8 metre high chain link metal fence along the quayside - On 18 August 2010, a local resident, Ian Tucker, applied to Essex County Council (Council) to register a large part of the quay as a TVG under section 15(3) of the Commons Act 2006 - In 2013, the Council appointed an Inspector to hold a non-statutory public inquiry - Inspector excluded several other parts of the quay from the application – However, he found the Land satisfied the statutory criteria: it had been used “as of right” for lawful sports and pastimes by significant numbers of local inhabitants for the preceding 20 years - Council duly registered Land as a TVG - TWL challenged registration in HC on a number of grounds, all of which were dismissed – CA upheld HC decision - TWL has appealed to SC – SC dismissed TWL’s appeal and upheld Land registration as TVG – Said six legislative provisions relevant to appeal - Section 15 of the Commons Act 2006 provided that land could be registered as a TVG where a significant number of local inhabitants indulged as of right in lawful sports and pastimes on that land for at least 20 years - Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 (the Victorian statutes) made it a criminal offence to interfere with a TVG in a number of different ways, including by interrupting local inhabitants from using it as a place for exercise and recreation - Section 34 of the Road Traffic Act 1988 (RTA 1988) made it an offence to drive a vehicle on a TVG without lawful authority - Two health and safety provisions (health and safety legislation) required an employer to protect members of the public from risks to their health and safety - TWL advanced three grounds of appeal: (1) land should not be registered as a TVG if that would criminalise the landowner’s existing commercial activities; (2) on the facts of this case, TWL’s commercial activities would be criminalised after registration; and (3) the use of the Land by the local inhabitants was not “as of right” - SC considered Ground 2 first – Said TVG registration did not criminalise the landowner continuing its pre-existing activities on the land - TWL’s activities not criminalised where those activities were “warranted by law” - As TWL had legal right after registration to carry on its existing commercial activities, those activities “warranted by law” - Similarly, TWL’s right to carry on with what it had been doing meant it did so with “lawful authority” for the purposes of section 34 of the RTA 1988 – Regarding health and safety legislation, this had always applied irrespective of registration as a TVG - If HSE lawfully required TWL to take some particular action, that would constitute lawful authority for doing so - Appeal on Ground 2 dismissed - In light of the conclusion on Ground 2, was not necessary or appropriate to decide Ground 1 – Regarding Ground 3 SC said concept of use “as of right” involved use of land by the local inhabitants in a way which would suggest to a reasonable landowner that they believed that they were exercising a public right in doing so - Landowner concerns at their use did not affect the quality of that use – Ground 3 also rejected – Appeal dismissed.

United States Supreme Court

International property, Welfenschatz (relics), Foreign Sovereign Immunities Act

Federal Republic of Germany and anor v Philipps and anor 592 US _ 2021

Successful appeal from DC Circuit - Respondents were the heirs of German Jewish art dealers who formed a consortium during the waning years of the Weimar Republic to purchase a collection of medieval relics known as the Welfenschatz - Heirs alleged that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the collection to Prussia for a third of its value - Relics currently maintained by Stiftung Preussischer Kulturbesitz (SPK), an “instrumentality” of the Federal Republic of Germany, and displayed at a Berlin museum - After unsuccessfully seeking compensation in Germany, heirs brought several common law property claims in US DC against Germany and SPK (collectively Germany) - Germany moved to dismiss, arguing that it was immune from suit under the Foreign Sovereign Immunities Act (FSIA) - Germany said heirs’ claims did not fall within FSIA exception to sovereign immunity for “property taken in violation of international law,” 28 U. S. C. §1605(a)(3), because a sovereign’s taking of its own nationals’ property was not unlawful under the international law of expropriation - Heirs countered exception did apply because Germany’s purchase of the Welfenschatz was an act of genocide, and the relics were therefore taken in violation of international human rights law – DC denied Germany’s motion to dismiss, and the DC Circuit affirmed – Germany appealed to SC – SC said phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, referred to violations of the international law of expropriation and thereby incorporated the domestic takings rule - Heirs contended their claims fell within the FSIA’s exception for cases involving “property taken in violation of international law,” §1605(a)(3)— the expropriation exception— because the forced sale of the Welfenschatz constituted an act of genocide, and genocide was a violation of international human rights law - Germany said relevant international law not the law of genocide but the international law of expropriation, under which a foreign sovereign’s taking of its own nationals’ property remained a domestic affair – SC unanimously agreed with Germany on this point – SC also noted that other statutes aimed at promoting restitution to Holocaust victims, on which the heirs relied, generally encouraged redressing those injuries outside of public court systems and did not speak to sovereign immunity. See, e.g., Holocaust Expropriated Art Recovery Act of 2016, 130 Stat. 1524. Pp. 14–15 – SC also did not address Germany’s argument that DC obligated to abstain from deciding the case on international comity grounds or the heirs’ alternative argument that the sale of the Welfenschatz was not subject to the domestic takings rule because the consortium members were not German nationals at the time of the transaction – Case remanded to lower courts for further consideration.

The US Supreme Court also remanded Hungary et Al v Simon et al, another case involving Nazi-era claims, for further review.

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