New Zealand Law Society - Supreme Court roundup 22 - 28 October 2021

Supreme Court roundup 22 - 28 October 2021

Supreme Court roundup 22 - 28 October 2021

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

New Zealand Supreme Court 

Self-represented litigant, appeal rights exhausted

Monk v R [2021] NZSC 139 (21 October 2021)

Unsuccessful leave application – Self-represented M applied for leave to appeal CA Judge’s decline of his application to review deputy registrar decision to refuse to accept for filing notice of application for leave to appeal against DC judgment delivered in 2011 – Background included that M and C convicted of intentionally, and without claim of right, destroying ecological reserve vegetation, being Department of Conservation property - Created about three kilometres of tracks through  relevant reserve, cutting native vegetation at 22 separate locations and carrying out significant construction work, amongst other things – DC Judge  convicted and discharged M and C and ordered them to pay $5000 reparation –

HC declined their appeal – Declined application for leave to appeal to CA – Application to CA for special leave dismissed – Matter rested there until M applied to deputy registrar – CA Judge said, having already been declined leave to appeal by HC and special leave to appeal by CA M’s appeal rights had been exhausted – SC said it had no jurisdiction to consider leave application – Application dismissed.


Self-represented litigant, judgment recall

Siemer v Auckland High Court and anor [2021] NZSC 141 (21 October 2021)

Unsuccessful recall application – Self-represented S applied to recall SC decline of his leave application dated 20 September 2021 – Said judgment did not adequately summarise his grounds for proposed appeal – SC said in effect, S wished to argue that Court should revisit its judgment – Said submission of this nature did not provide basis for recall – Application dismissed.


Supreme Court of Canada

Negligence, duty of care, government immunity, “core policy”

Nelson (City) v Marchi [2021] SCC 41 (21 October 2021)

Unsuccessful appeal from British Columbia CA - After a heavy snowfall in January 2015, snow clearing crews for the City of Nelson in British Columbia started plowing the streets -  Not long after, M parked her car on a street in the downtown area - City crews had already plowed the street, but they had created a snowbank along the curb of the sidewalk – M decided to walk over the snowbank to get from her car to the sidewalk and seriously injured her leg - She sued the city for negligence -

City said it should not have to pay any damages to M, because snow clearing decisions were “core policy decisions” that were immune from negligence claims - Core policy decisions based on public policy, such as economic, social and political factors -Had to be rational and not taken in bad faith -

Trial judge agreed with city that snow clearing decision a core policy decision and city did not have to pay any damages to M - She appealed to CA - It disagreed with trial judge and ordered a new trial - City appealed that decision to SC -

SC agreed with CA - City could be held responsible for injuries caused by its snow clearing decisions – SC unanimously said core policy decisions were immune from negligence claims - However, decisions to carry out a policy not policy decisions - Said, “the fact that the word ‘policy’ is found in a written document” did not settle the question -

Analysing City’s snow clearing decision here, SC said decision not a core policy decision - Rather, was operational and not immune from a negligence claim - City owed M a duty of care and new trial was required - New trial would assess if City breached that duty and, as a result, whether it should pay damages to M – Appeal dismissed.

Jurisdiction, labour arbitrator or human rights adjudicator

Northern Regional Health Authority v Horrocks [2021] SCC 42 (22 October 2021)

Successful appeal from Manitoba CA - Northern Regional Health Authority (NRHA) in Manitoba employed H - As a unionized worker, terms and conditions of her employment set out in a “collective agreement” - Collective agreement a written contract between an employer and a union - In 2011, H suspended for being at work while under the influence of alcohol - She disclosed to her employer her alcohol addiction, which was a disability - NRHA asked H to formally agree to abstain from alcohol and get treatment for her addiction - When she refused to sign agreement, she was fired - Her union filed a grievance on her behalf and, as a result, she returned to work on essentially the same terms as the agreement she had refused to sign - Soon after, NHRA alleged she had broken the terms of that agreement.

H filed a discrimination complaint with Manitoba Human Rights Commission - Alleged NHRA failed to sufficiently accommodate her disability - Human rights adjudicator appointed to decide the complaint - Authority opposed adjudicator’s jurisdiction - Said under the collective agreement, a labour arbitrator should settle the dispute - Adjudicator disagreed - She said dispute an alleged human rights violation - Went on to rule that NRHA had in fact discriminated against H -

NHRA appealed to a reviewing judge who agreed with it – H appealed to CA - CA said disputes concerning the termination of unionised workers fell within exclusive jurisdiction of a labour arbitrator, even when there were allegations of human rights violations – Here, though, CA said adjudicator had jurisdiction and sent the case back to the reviewing judge to decide if adjudicator’s decision on the complaint itself was reasonable –

Authority appealed to SC It ruled that human rights adjudicator did not have jurisdiction over H’s complaint – SC majority said labour arbitrator had exclusive jurisdiction when labour legislation provided for settling disputes under a collective agreement, unless another law stated otherwise – Here H’s complaint arose under collective agreement and within mandate of a labour arbitrator - Other legislation did not give concurrent jurisdiction to the human rights adjudicator - Adjudicator did not have jurisdiction over H’s complaint – Appeal allowed.


Judicial Committee of the Privy Council

Lawyer, disciplinary proceedings

Hossein v Ramnarine-Hill [2021] UKPC 28 (25 October 2021)

Unsuccessful appeal from Trinidad and Tobago CA – H practised as a lawyer - A instructed him in 2009 to pursue a claim for damages arising out of the death of her husband in a motor accident - H reached a settlement with the insurer in January 2011 - Claims handler at the insurer, R was respondent -

In February 2011, A met with R and showed her letters which she understood were from R setting out the insurer’s offer - However, those letters showed a lower settlement amount than that which had been offered by R on the insurer’s behalf – A believed H had forged the letters - She terminated his services that same day.

In May 2011, R made a complaint against Mr Hosein on the basis that he had forged the letters and offered A a lower settlement figure than that he had agreed with R - Disciplinary Committee considered the matter and, in March 2013, determined that H had committed acts of professional misconduct.

In March 2013, H appealed to CA against Disciplinary Committee’s decision - CA dismissed H’s appeal in July 2018 - H granted final leave to appeal to PC on 15 April 2019 – Issues on appeal were (1) Whether Disciplinary Committee entitled to find as it did; in particular, whether it had erred in its handling and analysis of evidence and (2) Whether Disciplinary Committee entitled to prevent H from putting a document in evidence, and if not, the implications of this for the safety of its findings – PC agreed with CA that not appropriate to interfere with committee’s fact findings – Appeal dismissed.

United Kingdom Supreme Court

Deportation, bail order, whether government (or anyone else) could lawfully act in a manner inconsistent with an order of a judge which was defective

R (on application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46 (20 October 2021)

Successful appeal from CA - M a national of Rwanda who came to the United Kingdom as a child and was granted indefinite leave to remain - After being convicted of serious criminal offences in 2006, he received a sentence of imprisonment for public protection - In 2012 subject to deportation order, which was never implemented - In 2013 he was transferred to open prison conditions, and worked as a volunteer at a charity shop - On 30 March 2015, when he was released on licence, the Secretary of State decided M should be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 (1971 Act), pending his removal or departure from the United Kingdom -

On 27 July 2015, M applied to the First-tier Tribunal for bail under paragraph 22 of Schedule 2 to the 1971 Act - On 30 July 2015, First-tier Tribunal decided M should be released on bail, on condition that he report to his offender manager, and subject also to the conditions of his licence (Bail Order) -   Secretary of State sought a condition prohibiting M from continuing to perform unpaid work - Tribunal decided not to impose such a condition - Bail Order did not require M to appear before an immigration officer at a specified time and place, despite paragraph 22(1A) of Schedule 2 to the 1971 Act requiring that it do so -

On 30 July 2015, an immigration officer gave M a notice which said "the Secretary of State has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the [1971 Act], she now imposes… restrictions", including that he "may not enter employment, paid or unpaid" and that he be subject to a curfew -

On 3 December 2015 and 4 January 2016, the Secretary of State refused M’s requests to withdraw prohibition on him carrying out voluntary work and to relax the curfew restriction, respectively - M applied for judicial review of those decisions, on the ground that the Secretary of State could not lawfully impose conditions which Tribunal had declined to order - In response, the Secretary of State conceded the curfew condition was unlawful, but argued that it was lawful to impose the condition relating to unpaid work because Bail Order was legally defective and therefore void -

Upper Tribunal decided that the Secretary of State’s decisions were unlawful, and made a declaration that M remained on bail in accordance with Bail Order - Secretary of State then appealed, successfully, to CA, which made a declaration that Bail Order invalid and had no effect in law -

M appealed to SC - Appeal raised a question of constitutional importance: whether the government (or, indeed, anyone else) could lawfully act in a manner inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order –

SC unanimously allowed appeal - Upper Tribunal order quashing the Secretary of State’s decisions and declaring that M remained on bail in accordance with Bail Order, restored –

Said was well-established that a court order had to be obeyed unless and until it had been set aside or varied by the court (or, conceivably, overruled by legislation) - Rule applied to court orders whether they were valid or invalid, regular or irregular - Rationale for rule lay in the rule of law and, more particularly, basic principle that court orders should not be ignored by anyone, including the government -

Rather than applying this rule, CA decided, on the basis of case law concerned with unlawful administrative acts and decisions, Bail Order had no legal effect, and so Secretary of State not required to comply with it - Even in the context of administrative acts and decisions, an over-simplification to say that an unlawful act had no legal effect at all - Were a variety of circumstances in which an unlawful administrative act might have legal consequences - In any event, present case  concerned not with an unlawful administrative act but with an order of a tribunal, and so gives rise to different issues and is governed by different principles -

In this case, even if Bail Order invalid, Secretary of State obliged to comply with it, unless and until it was varied or set aside - Allegation that Bail Order invalid was not, therefore, a relevant defence to M’s application for judicial review - No other basis on which CA reversed Upper Tribunal  decision - Secretary of State did not ask SC to dismiss appeal on other grounds - It follows that M’s appeal should be allowed -

SC added that, even if alleged invalidity of Bail Order had been relevant, not necessarily appropriate to allow Secretary of State to raise this issue in the course of these proceedings - Secretary of State had every opportunity to challenge Bail Order if she considered that it was defective: she could, and should, have raised the matter with First-tier Tribunal, and she could alternatively have applied to Upper Tribunal for permission to apply for judicial review - Had she made such an application,  Upper Tribunal would have taken into account her delay in doing so, and any hardship which might be caused to M, when deciding whether to grant permission and whether to grant a remedy - CA procedure did not allow for consideration of these issues at any stage – Appeal allowed.


Service of proceedings, tort gateway, foreign law

FS Cairo (Nile Plaza) v Lay Brownlie [2021] UKSC 45 (20 October 2021)

Unsuccessful appeal from CA - In January 2010, Lady B and her husband, Sir Ian Brownlie QC, were on holiday in Egypt - Stayed at Four Seasons Hotel Cairo at Nile Plaza - On 3 January 2010, they went on a guided driving tour which Lady B booked through the hotel - Vehicle they were travelling in during the tour crashed, killing Sir Ian and seriously injuring Lady B - She issued a claim in England seeking damages in contract and tort - Case reached SC – It said company she was suing not hotel operator and remitted matter to HC -

Lady B successfully sought permission to substitute FS and to serve the proceedings on it out of the jurisdiction – FS appealed on question of whether permission should have been given to serve the proceedings out of the jurisdiction- CA dismissed appeal.

FS raised two issues before the Supreme Court - First (tort gateway issue) was whether Lady B’s tort claims satisfied requirements of the relevant jurisdictional ‘gateway’ in the Civil Procedure Rules (CPR) - Second (foreign law issue) was whether, in order to show that her claims in both contract and tort had a reasonable prospect of success, Lady B had to provide evidence of Egyptian law – SC dismissed FS appeal on both issues.

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