New Zealand Supreme Court

Application for recall of recalled judgment

Houghton v Saunders and ors [2021] NZSC 92 (28 July 2021)

Unsuccessful application to recall Court’s recall judgment - On 2 July 2021, SC issued  judgment dismissing G’s application to recall judgment dismissing H’s application for leave to appeal – G applied to recall the recall judgment - Took issue with sentence in judgment: “The allegations [made in G’s application] are not new and are not able to be resurrected after the final resolution of the proceeding” - Asked that recall judgment be re-issued with sentence deleted – No basis to recall the recall judgment – Application dismissed.

Self-represented applicant, lack of SC jurisdiction

Re Parker [2021] NZSC 93 (29 July 2021)

Unsuccessful application to review deputy registrar decision - On 13 July this year, self-represented P lodged partially completed notice of application for leave to bring a criminal appeal with SC - Named as respondents, “Queen; WINZ; NZ Gov; Corrections, District Court, High Court, Court of Appeal; etc; NZ Police; Wellington Council etc” – SC judge said “partially completed” because form did not identify a decision P wished to appeal - Rather, identified topics on which he wished to be heard - These include Crimes of Torture Act 1989, “all” New Zealand and British law, and torture and abuse that he said he had received – In  letter of 16 July 2021, deputy registrar advised P his application had not been accepted for filing - By notation on a copy of this letter, P sought a review of that decision, which this judgment addressed - Application did not identify judicial decision against which P wished to appeal - Not possible to treat as application for leave to appeal – SC did not have jurisdiction to conduct the sort of inquiry which he sought into topics identified - Judge confirmed  Deputy Registrar decision not to accept document for filing.

Supreme Court of Canada

Insolvency, company restructuring Crown debt

Canada v Canada North Group and ors [2021] SCC 30 (28 July 2021)

Unsuccessful appeal from Alberta CA - Canada North Group and six related corporations initiated restructuring under the Companies’ Creditors Arrangement Act  (CCAA ). - Initial CCAA  application requested relief package including creating three priming charges (or court‑ordered super‑priority charges): an administration charge in favour of counsel, a monitor and a chief restructuring officer for fees they incurred, a financing charge in favour of an interim lender, and a directors’ charge protecting their directors and officers against liabilities incurred after commencement of  proceedings -  Application included affidavit from one director attesting to debt to The Queen for unremitted employee source deductions and GST - CCAA judge made an order (Initial Order) that priming charges were to “rank in priority to all other security interests, . . . charges and encumbrances, claims of secured creditors, statutory or otherwise”, and that they were not to be “otherwise . . . limited or impaired in any way by . . . the provisions of any federal or provincial statutes” (Priming Charges) - Crown subsequently filed a motion for variance, saying Priming Charges could not take priority over deemed trust s 227(4.1) of the Income Tax Act (ITA) created for unremitted source deductions - Motion to vary dismissed - Crown’s appeal to CA also dismissed – Crown asked SC to consider the issue - Even though there was enough money to pay everyone in this case, SC decided to hear case - Majority dismissed  appeal - Said court supervising restructuring process had authority to order that “super priority” charges be paid first, even before paying Crown money it was owed – CCAA  gave Court broad discretion to make any order it considered appropriate in circumstances - For experts to put themselves at financial risk in order to restructure a company, only to discover later that other creditors must be paid first, would not be fair - Four judges disagreed, saying  the money owed to the Crown took priority over all other debt or expenses, including money owed to restructuring experts – Appeal dismissed.

Limitation period

Grant Thornton LLP v New Brunswick [2021] SCC 31 (29 July 2021)

Successful appeal from New Brunswick CA - In 2009, New Brunswick Province agreed to guarantee $50 million in bank loans for Atcon, which provided construction, energy, industrial and waste management services - Province agreed to act as guarantor following report auditor Grant Thornton prepared - Atcon hired Grant Thornton to review its financial statements - Grant Thornton report concluded Atcon’s financial statements were accurate and prepared according to proper accounting principles - Atcon subsequently defaulted on bank loans and asked  Province to pay – Province paid $50 million in March 2010 – In June 2010, Province hired another auditor to review and report on Atcon’s finances - On February 4, 2011, new auditors submitted a draft report stating that Atcon’s finances had not been prepared according to proper accounting principles - Report contained evidence Atcon had overstated its assets, revenues and profits – Also said Atcon had understated its liabilities, expenses and losses - Final report, almost identical to draft, completed on November 30, 2012 –-

On June 23, 2014, Province filed a $50 million claim against Grant Thornton, saying it had been negligent preparing its report of Atcon’s finances - Grant Thornton said it had not been negligent and asked Judge to dismiss claim, saying Province out of time to file - Grant Thornton invoked New Brunswick Limitation of Actions Act – This sais plaintiff had two years to file a claim after “discovering” it - Judge sided with Grant Thornton – CA sided with Province – GT appealed to SC – SC agreed with Grant Thornton - In a unanimous judgment, SC said claim was “discovered” when plaintiff had enough information to know defendant probably at fault - Here Court satisfied Province had discovered claim against Grant Thornton on February 4, 2011, the date it received the draft report - By then, Province knew or ought to have known loss occurred that Grant Thornton had been hired to detect - Sufficient information to know Grant Thornton had been negligent - Although Province knew this on February 4, 2011, did not bring claim until June 23, 2014, more than two years later – SC said under New  Brunswick law, Province filed its claim too late – Said anyone filing a claim should consider deadlines that applied in their province or territory - Otherwise, they risked losing opportunity to have courts uphold their rights – Appeal allowed.

Copyright, licensing, royalties

York University v Canadian Copyright Licensing Agency (Access Copyright) [2021] SCC 32 (30 July 2021)

Successful appeal from Federal CA - From 1994 to 2010, York University (York) and Access Copyright (Access) licencing agreement allowed York professors to copy published works in Access’ collection in exchange for royalty payments - Access not works’ copyright owner - Was collective society that administered copyright protection on behalf of authors and publishers - By 2010, royalties consisted of annual fee of $3.38 per full-time student in addition to $0.10 per page copied into a course pack for sale or distribution to students – In 2010, York and Access were negotiating to renew the agreement - As licence expiry date approached, Access asked  Copyright Board of Canada to set an interim tariff - Copyright Board was organisation that set royalties to be paid for using copyrighted works, when copyright being administered collectively by a society - Interim tariff took effect in January 2011 and York paid royalties until July 2011 - It then stopped - York said interim tariff not enforceable and it could copy from Access’ collection without paying, because of Copyright Act “fair dealing” provisions  -  “Fair dealing” allowed for copying of works without permission if done in the public interest - York said this included copying for research and education - In 2013, Access asked Federal Court to enforce the interim tariff – Said York’s copying neither licenced, nor protected by fair dealing provisions - York said copying protected - FC ruled in Access’ favour – FCA  allowed York’s appeal on tariff enforcement but dismissed its appeal on fair dealing - Both parties then appealed to SC – SC dismissed appeals – SC unanimously concluded tariff not mandatory and York did not have to pay it - Said Copyright Act did not allow Access to enforce royalties against York for any tariffs, interim or final, because it chose not to be bound by the agreement – Copyright Act collective administration provisions intended to protect users such as York - For example, provisions provided cap on amount charged for a licence - But they did not allow a collective society to force a licence on an unwilling user - Would be contrary to their protective purpose - Users could always choose whether or not to accept a licence – SC said not a case of copyright infringement because Access could not claim - Only parties who could were authors and publishers who owned the copyright - Without the proper parties, SC refused to address fair dealing issue – Appeal allowed.

United Kingdom Supreme Court

Contract, package holiday, ambit of obligation

X v Kuoni Travel Ltd [2021] UKSC 34

Successful appeal from CA - On or about 1 April 2010, X and her husband contracted with Kuoni for a package holiday in Sri Lanka included return flights from the United Kingdom and 15 nights’ all-inclusive accommodation at the Club Bentota hotel ( Hotel) between 8 and 23 July 2010 (Contract) - In the early hours of 17 July 2010, X was making her way through Hotel grounds, when she came upon N, who Hotel employed as an electrician - Under the pretence of showing her a shortcut to reception, N lured X into the engineering room, where he raped and assaulted her - X brought a claim for damages against Kuoni - Claimed that rape and assault were breach of Contract and/or gave rise to liability under Contract and the Travel, Package Holidays and Package Tours Regulations 1992 (Regulations) – HC dismissed claim – CA dismissed appeal - X  appealed to SC –

X’s appeal raised a number of questions concerning Directive 90/314/EEC on package travel, package holidays and package tours (Directive), EU instrument that Regulations implemented - At her appeal hearing SC decided to refer those questions to the Court of Justice of the European Union (CJEU) - CJEU answered SC questions in judgment delivered on 18 March 2021 – SC unanimously allowed appeal – SC took a broad view of obligations tour operators owed to consumers under package holiday contracts - Said obligations included not only providing transport, accommodation and meals, but also range of ancillary services necessary to provide holiday of reasonable standard - Precise content of services might vary from one contract to another – In present case, Kuoni undertook to provide a package holiday at a four-star hotel – SC  considered it an integral part of a holiday of such a standard that hotel staff provided guests with assistance with ordinary matters affecting them at the hotel as part of their holiday - Included guiding guests from one part of the hotel to another – X’s rape and assault amounted to a failure to provide that service with proper care - X therefore had claim against Kuoni under clause 5.10(b) of Contract for injury suffered as a result of the breach of that obligation, and under regulation 15(2) of the Regulations for "damage caused to [her] by [Kuoni’s] failure to perform the contract or the improper performance of the contract" – Appeal allowed.

Child, deprivation of liberty, HC inherent jurisdiction

In the Matter of T (A Child) [2021] UKSC 35 (30 July 2021)

Unsuccessful appeal from CA - Appeal concerned using HC inherent jurisdiction to authorise local authority to deprive a child of his or her liberty - Background was shortage of provision for children who required special limitations on their liberty, for example, through placement in one of the small number of approved secure children’s homes in England and Wales, but for whom no space was available, or who would be better served by highly specialised care albeit still with their liberty limited - Shortage forced local authorities to seek HC orders under its inherent jurisdiction authorising children’s alternative restrictive placement elsewhere than in approved secure children’s home - Secure children’s home typically accommodation designed to restrict liberty - While regime might vary from home to home, would commonly include extensive CCTV, high fencing or walls with limited views, and reinforced and locked doors and windows - Caerphilly County Borough Council (CCBC) began proceedings in July 2017 to address the care of T, then a 15-year-old in CCBC’s care following a care order - In view of her particular needs, CCBC intended to accommodate T in a placement in England, not a registered children’s home or approved for use as secure accommodation, in circumstances which involved her being deprived of her liberty – CCBC applied to HC for order under inherent jurisdiction authorising CCBC to deprive T of her liberty - Order granted - After placement broke down, HC authorised CCBC to deprive T of her liberty in a registered children’s home in England, which was not approved for use as secure accommodation –

Two main issues before SC: First, was it permissible exercise of HC’s inherent jurisdiction to make an order authorising a local authority to deprive a child of his or her liberty in this category of case? T said Children Act 1989 (CA 1989) barred such use of the inherent jurisdiction in this case and use contrary to article 5 of the European Convention on Human Rights (ECHR) – This argument not advanced before courts below - Secondly, if, contrary to T’s argument, HC could have recourse to its inherent jurisdiction to make an order of the type in question, what was the relevance of the child’s consent to the proposed living arrangements? T said consent highly relevant, and as she consented to the placements, it was contrary to her best interests to make the orders – Issues no longer relevant to T personally - Her circumstances had changed, but  continued to affect a significant number of children – SC unanimously dismissed  appeal - Said using inherent jurisdiction to authorise the deprivation of liberty in cases like this was permissible, but expressed grave concern about use to fill a gap in the child care system caused by inadequate resources – Appeal dismissed.

Child Sex Offender Disclosure Scheme, whether “Guidance” lawful

R (on the Application of A) v Secretary of State for the Home Department [2021] UKSC 37

Unsuccessful appeal from CA – A was a convicted child sex offender - Secretary of State for the Home Department (Secretary) set up Child Sex Offender Disclosure Scheme (CSOD Scheme) in 2010 to co-ordinate police approach to responding to requests for information from members of the public about the sex offending history of a person who dealt with children - CSOD Scheme sat alongside other procedures governing management in the community of child sex offenders who had completed their sentences and been released - CSOD Scheme set out in the Child Sex Offender Disclosure Scheme Guidance (Guidance) which Secretary issued exercising her common law powers - Guidance amended after A’s previous successful judicial review  in 2012 to include a new para 5.5.4 to remind police to consider whether any person about whom disclosure might be made should be given the opportunity to make representations about disclosure - A challenged  revised version of Guidance because it did not go far enough to explain circumstances when police, when approached for information regarding a person about whom concerns raised relating to their contact with children, was obliged in law to seek representations from the person before disclosing any information - Administrative Court said revised Guidance lawful – CA dismissed A’s appeal – A appealed to SC – SC unanimously dismissed appeal – Said principal test to be applied when considering whether policies such as the Guidance were lawful was that policy was unlawful if it sanctioned, positively approved or encouraged unlawful conduct by those to whom it is directed - In such cases the public authority would have acted unlawfully by undermining the rule of law in a direct and unjustified way - Test was straightforward to apply - Called for comparison of what relevant law required and what a policy says regarding what a person should do – Appeal dismissed.