New Zealand Law Society - Supreme Court roundup 1 - 7 October 2021

Supreme Court roundup 1 - 7 October 2021

Supreme Court roundup 1 - 7 October 2021

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

New Zealand Supreme Court 

EEZ, environmental effects, mining proposal

Trans-Tasman Resources v Taranaki-Whanganui Conservation Board and ors [2021] NZSC (30 September 2021)

Unsuccessful appeal - Trans-Tasman Resources Ltd (TTR), wanted to mine iron sands in the South Taranaki Bight, an area within New Zealand’s exclusive economic zone (EEZ) -  Required marine consents and marine discharge consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) –

Environmental Protection Authority Decision-making committee (DMC) majority granted consents with conditions, valid for 35 years - Authorised TTR to extract up to 12.5 million tonnes of seabed material during any three-month period and up to 50 million tonnes per annum and to process material on an integrated mining vessel. About 10 per cent of the seabed material would be processed into iron ore concentrate - De-ored material which remained after that process would be returned to the seabed via a controlled discharge - Discharge would create a plume as the suspended material settled onto the seabed - Board opposed consents because of  effects proposed activity would have on environment and other existing interests including those of iwi holding mana moana and kaitiaki responsibilities in the areas affected by the proposed mining –

In HC, Board successfully challenged DMC’s decision as wrong in law - CA dismissed TTR’s appeal against HC judgment - DMC decision quashed and matter referred back for reconsideration – SC granted TTR leave to appeal CA decision –

SC unanimously dismissed appeal - Judgment dealt with a number of issues concerning proper interpretation and application of the EEZ Act – Judges took different approaches to s 10 purpose provision but were largely unanimous regarding other provisions – Court all agreed that DMC erred in law in granting consents.

SC unanimous on DMC fundamentally erring to not comply with requirement to favour caution and environmental protection in ss 61 and 87E - Conditions DMC imposed regarding marine mammals and seabirds illustrated this - Given uncertainty over effect of TTR’s activities on these species, DMC simply could not be satisfied conditions imposed were adequate to protect the environment from pollution –

SC also clarified approach to Treaty of Waitangi clause in s 12, saying it required a broad and generous construction of Treaty clauses - An intention to constrain statutory decision-makers’  ability to respect Treaty principles should not be ascribed to Parliament unless that intention was made quite clear - In particular, s 12(c) provided a strong direction that DMC take into account effects of TTR’s proposed activity on existing interests in a way that recognised Crown obligations to give effect to Treaty principles - Existing interests included tikanga-based customary rights and interests, including kaitiakitanga - Drawing on the approach to tikanga in earlier cases SC said DMC had to take tikanga into account as law as “other applicable law” under decision-making criteria where its recognition and application was appropriate to the particular circumstances of the application at hand – SC said DMC had made various errors regarding these issues – Appeal dismissed – Decision referred back to DMC for reconsideration.

Self-represented litigant, untenable causes of action

Burgess [2021] NZSC (5 October 2021)

Unsuccessful leave application – Self-represented B in a relationship property dispute with his former wife - Substantive dispute (which began in 2005) culminated in an appeal to SC in 2012 -  Although B  unsuccessful in Family Court, largely unsuccessful in HC and only partially successful in CA, he succeeded in SC - Success was pyrrhic - Mortgagee of the former couple’s property had in 2010 enforced mortgage and property was sold - B subsequently bankrupted on the application of his former solicitors in 2017 - In August 2018, he filed HC proceedings against his former wife and her solicitors - Argument essentially that his ex-wife and her lawyers had purposefully and improperly dragged out dispute, which deprived him of his entitlement under the Property (Relationships) Act 1976 –

Proceeding initially struck out as Official Assignee had been brought it in B’s place -  In October 2018, OA disclaimed any interest in proceeding - B applied to have litigation rights vested in him pursuant to s 119 of the Insolvency Act 2006 – HC having heard from B and a court-appointed contradictor, said proposed claims not reasonably arguable -  Declined to make the order – On appeal CA  (which also heard from the contradictor), dismissed appeal -  Said proposed causes of action were “wholly untenable” and had “no prospect of success whatsoever” – B applied for leave to appeal to SC –

SC said for reasons CA outlined none of proposed arguments proposed had sufficient prospects of success to warrant granting leave to appeal - No appearance that substantial miscarriage of justice occurred or might occur – No matter of general or public importance arose – Application declined.


Supreme Court of Canada

Constitutional law, Canadian Charter, democracy

City of Toronto v Ontario (Attorney-General) [2021] SCC 34 (1 October 2021)

Unsuccessful appeal from Ontario CA - On May 1, 2018, the City of Toronto (City) municipal election campaign commenced, and nominations opened in preparation for an election day on October 22, 2018 - On July 27, 2018, the closing day for nominations, Ontario announced its intention to introduce legislation reducing the size of Toronto City Council - On August 14, 2018, the Better Local Government Act, 2018 (Act) came into force, reducing the number of wards from 47 to 25 – City and two groups of private individuals challenged Act’s constitutionality and applied for orders restoring the 47‑ward structure - Application judge said Act limited municipal candidates’ right to freedom of expression under s 2 (b) of the Charter and municipal voters’ s 2 (b) right to effective representation - Said limits could not be justified under s 1 Charter and set aside Act’s impugned provisions - Ontario appealed and moved to stay the judgment pending appeal - CA granted stay and, on October 22, 2018, municipal election proceeded with 25‑ward structure - CA later allowed the appeal, finding no limit on freedom of expression – Majority said City advanced a positive rights claim, not properly grounded in s 2 (b) Charter – Said application judge erred to find Act substantially interfered with candidates’ freedom of expression and right to effective representation applied to municipal elections and bore any influence over s 2 (b) analysis – Majority also said unwritten constitutional principles did not give judiciary power to invalidate legislation that did not otherwise infringe Charter, nor did they limit provincial legislative authority over municipal institutions – City appealed to SC –

SC majority agreed with CA – Said Act did not stop candidates from expressing themselves - Candidates and their supporters had 69 days — longer than most federal and provincial election campaigns — to re-orient their messages and freely express themselves according to the new ward structure - Act did not restrict what candidates could say or do – Said many candidates had successful campaigns, raised substantial amounts of money and secured many votes - Said this would not have been possible if candidates had been prevented from meaningful expression Majority recognised some of candidates’ messages, made before the number of wards was reduced, might have lost their relevance - However, they said section 2(b) Charter did not guarantee effectiveness or relevance of messages or campaign materials.

Said unwritten constitutional principles, such as democracy, could be used to understand and interpret the Constitution, but these principles could not be used to invalidate laws – Also s 92(8) of the Constitution allowed provinces to pass laws affecting municipalities - That meant the Province could change the number of wards at any time without consulting the City beforehand - This authority was not in dispute in this case – Appeal dismissed.

High Court of Australia

Defamation, Facebook, publisher

Fairfax Media Publications v Voller [2021] HCA 27 

Unsuccessful appeals from New South Wales CA – Fairfax and others (companies) were media companies which published newspapers that circulated in New South Wales or operate television stations, or both - Each maintained a public Facebook page where they posted content relating to news stories and provided hyperlinks to those stories on their website - After posting content relating to particular news stories referring to V, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were alleged to be defamatory of V – V brought proceedings against companies alleging that they were liable for defamation as the publishers of those comments –

Primary judge ordered that a question concerning the issue of publication, as agreed by the parties, be decided separately from the balance of the proceedings - Question was whether V "established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users" – CA said primary judge did not err to answer question in the affirmative –

Companies appealed to HCA – HCA majority dismissed appeals, saying companies were publishers of the third-party Facebook user comments – Said liability of a person as  publisher depended on whether that person, by facilitating and encouraging the relevant communication, "participated" in the communication of the defamatory matter to a third person - Majority rejected argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it - Each company, by creating a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users - Fairfax therefore publishers of the third-party comments.

Judicial Committee of the Privy Council

Freezing orders

Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24 (4 October 2021) 

Unsuccessful appeal from Eastern Caribbean CA in respect of  British Virgin Islands (BVI) - Broad Idea a company incorporated in BVI – C a Broad Ideas director and shareholder - In February 2018, Convoy Collateral (Convoy) applied to BVI court for freezing orders against Broad Idea and C in support of anticipated proceedings against C in Hong Kong - Convoy also sought permission to serve C out of the jurisdiction - Following a hearing held without notice to Broad Idea and C, BVI court granted freezing orders restraining them from disposing of or diminishing the value of certain of their respective assets and gave permission to serve C out of the jurisdiction - Convoy commenced proceedings against C (but not Broad Idea) in Hong Kong shortly after -  Freezing orders BVI court issued against C and the order granting permission to serve C out of the jurisdiction subsequently set aside in April 2019 because court ruled  not to have jurisdiction to make them - In the meantime, Convoy applied for a freezing order against Broad Idea in support of the Hong Kong proceedings against C - In July 2019, the judge continued the freezing order against Broad Idea indefinitely on the basis, among other things, that Broad Idea’s assets were at risk of dissipation – CA allowed Broad Idea’s appeal against judge’s decision – Convoy appealed to PC – Main issues on appeal were whether the BVI court had jurisdiction and/or power to grant a freezing order where respondent a person against whom no cause of action has arisen, and against whom no substantive proceedings were pursued, in the BVI or elsewhere, and if so whether any such jurisdiction and/or power extended to granting a freezing order to support proceedings to which that person is not a party – PC majority reviewed history of Mareva injunctions and freezing orders – Noted ease with which money and financial assets could now be transferred and globalisation of commerce –

PC affirmed decision of both courts below that C could not be brought within the jurisdiction of the BVI court  - But also said a court with equitable and/or statutory jurisdiction to grant injunctions where it is just and convenient to do so had power - and it accorded with principle and good practice - to grant a freezing injunction against a party  over whom the court had personal jurisdiction  – CA wrong to hold that not open to the BVI court to grant a freezing injunction against Broad Idea because there were no substantive proceedings against Broad Idea or against C in the BVI – CA nonetheless justified in setting aside the freezing injunction granted against Broad Idea on the facts  and was right to hold that  BVI court had no personal jurisdiction over C – Appeal dismissed.

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