New Zealand Law Society - Supreme Court roundup 28 October - 11 November 2021

Supreme Court roundup 28 October - 11 November 2021

Supreme Court roundup 28 October - 11 November 2021

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

New Zealand Supreme Court 

Parole Act, Extended Supervision Order

McIntosh v Chief Executive of Department of Corrections [2021] NZSC 142 (27 October 2021) 

Unsuccessful leave application – M subject to two successive extended supervision orders (ESOs) each for the maximum period of 10 years - First ESO imposed after prison sentence for sex offending, after a hearing where imposition of ESO not opposed, but duration was - Commenced on 15 March 2005 - Expired on 29 April 2015 - Second ESO imposed in May 2015, but took effect from first ESO expiry – Granting second ESO also not opposed – Appealed to CA against HC confirming second ESO - Appeal was dismissed – Sought leave to appeal to SC – M said as s 107IAA Parole Act 2002 applied to every application for an ESO, every application to cancel an ESO and every review of an ESO, the interpretation of the provision was a matter of general or public importance – SC accepted proper construction of section a matter of significance – However, it did  not consider that the argument M wanted to raise had sufficient prospects of success to justify appeal to SC on this point – The second point he wanted to raise related to the definition of “relevant sexual offence” in s 107B(2) - Point specific to this case so no matter of general importance arose and no appearance of miscarriage of justice – Application dismissed.

Health and Disability Commissioner Act

Ryan v Health and Disability Commissioner [2021] NZSC 143 (2 November 2021) 

Successful leave application - Approved question whether CA correct to uphold the finding of liability under s 72 of the Health and Disability Commissioner Act 1994 – R said argument would be limited to the interpretation of the proviso in s 72(4) of the Health and Disability Commissioner Act 1994 – SC said that it was open to hearing argument addressing the application of s 72 to Medical Centre more generally – Application allowed.

Indemnity costs, reduction

Thecircle.co.nz and anor v Trends Publishing International Ltd (In Liquidation) and anor [2021] NZSC 144 (2 November 2021) 

Unsuccessful leave applications – TC and J applied for leave to appeal against CA decision which partly allowed their appeal against HC costs decision - Callaghan Innovation (Callaghan) sought leave to cross appeal against CA decision - Trends Publishing International Ltd (Trends) published magazines - Growth of online marketing challenged its business model - In 2012, it applied to the Ministry of Science and Innovation (the Ministry) for a grant to digitise its business - Grant completed in late 2013 - In 2014, it successfully applied to Callaghan for a further grant. Callaghan had taken up the Ministry’s role - The first two claims for expenditure reimbursement under the grant were paid - Callaghan sought further information about the third claim – Was not satisfied with the information provided - On 17 December 2014, Callaghan delivered a letter suspending the grant and gave Trends a copy of a draft press release (to be released later that day) saying that the matter had been referred to the Serious Fraud Office - Callaghan cancelled the purported funding agreement and demanded repayment of grant amounts already paid -

In May 2015, Trends proposed a compromise with its creditors - Was approved at a creditors’ meeting on 22 May 2015 – HC set aside creditors’ compromise – CA and SC upheld HC decision - Trends filed a counterclaim for $61 million – HC dismissed this in April 2019 – HC awarded indemnity costs based on counterclaim being “fundamentally misconceived or otherwise hopeless from conception” - Also ordered, as Callaghan had sought, the costs to be paid by T and J as non-parties – J controlled and owned both Trends and TC – TC had funded Trends’ counterclaim - On appeal, CA partly allowed the appeal and replaced indemnity costs order with an order of standard scale costs uplifted by 50 per cent – CA differed from HC on whether counterclaim was hopeless, taking into account that the work described in the application was work that was actually carried out – CA also dismissed an appeal relating to disbursements and third party costs orders –

On the appeal, SC said no issue of principle – CA orders appropriate here in circumstances of the particular case – CA also rejected Callaghan’s cross-appeal – Said CA entitled to differ in its view of facts on which discretion on costs was exercised – No issue of principle – Appeal and cross-appeal dismissed.

Costs not following event

FMV v TZB [2021] NZSC 145 (2 November 2021) 

Costs not following the event – SC had dismissed FMV’s appeal and reserved costs - TZB, claimed costs of $25,000 plus disbursements of $789.20 - FMV said costs should lie where they fell or, alternatively, costs should be discounted – SC said general rule that costs follow the event – Here the only point on which FMV was successful was a name suppression issue – Cases here not a test case - TZB claimed $25,000 costs, the standard rate for a one-day appeal in SC with two or more counsel - Only one counsel appeared for TZB - $20,000 costs, discounted by $6,700 to of $13,300, plus disbursements of $789.20 as agreed.

Theft and receiving stolen property, pre-trial ruling

Gorgus v R [2021] NZSC 146 (3 November 2021) 

Unsuccessful leave application - On 23 December 2019, self-represented G pleaded guilty to charges of theft and receiving stolen property - Convicted and sentenced to 18 months’ imprisonment - Appeal against conviction dismissed on 5 August 2021 – G sought leave to appeal against CA decision on essentially same grounds he advanced there, that a pre-trial ruling was erroneous - Also claimed CA failed to take proper account of discrepancies in witness evidence – Related to particular circumstances of the case – No matter of general or public importance – No miscarriage of justice – Application dismissed.

COVID-19, Government response

Nottingham and anor v Attorney-General [2021] NZSC 147 (3 November 2021) 

Unsuccessful leave application – Self-represented N and M  filed application and annexures seeking various orders, including declarations about compliance by a range of institutions with the International Covenant on Civil and Political Rights and Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Right and as to various aspects of the Government’s response to COVID-19 - Registrar advised applicants application not accepted for filing - Reason for rejection was SC an appellate court with jurisdiction to consider applications for leave to appeal the decisions of other New Zealand courts within its jurisdiction - Said application did not come within jurisdiction - Applicants applied for “review” of Registrar’s decision – Three-Judge Bench treated application as application for leave to appeal - Plainly no jurisdiction for Court to consider leave application in absence of a lower court decision against which application can be initiated – Also out of time – Application dismissed.

Power costs subsidy, method of calculating eligibility, not withing appeal criteria, judgment referred to Ombudsman

Taylor v Attorney-General (On Behalf of Minster of Social Development) [2021] NZSC 148 (4 November 2021) 

Unsuccessful leave application – Self-represented T applied for leave to appeal from CA - Was approaching her mid-70s - Suffered from a long-term physical disability - Received Temporary Additional Support, which could, if needed, include an allowance for additional power costs incurred due to disability – T sought such an allowance - Advised Ministry of Social Development (the Ministry) that her power costs for the year ending July 2013 were $1,845.38. In November 2013, the Ministry determined that Ms Taylor did not have any additional power costs attributable to her disability - On review, the Benefits Review Committee (BRC) increased this to a subsidy of 96 cents per week ($49.92 a year) – This was the beginning of a series of appeals and reviews and interlocutory matters that led to SC leave application -  SC said essence of T’s substantive arguments came down to one main point: the Ministry is incorrectly using the “Powerswitch” website generally when determining how much power a person in a client’s position would use if they did not have the disability – Said T’s application related to CA decision dismissing her appeal from HC - Any appeal to SC could not resolve the core issue T concerned with, as that issue not dealt with in HC or CA – T had not identified any error in CA judgment that would meet leave criteria – However, reasoning recorded in Ministry file note appeared not to be sound - Error has been overtaken in T’s particular case, but would be concerning if it reflected wider systemic approach, in which case steps ought to be taken to correct it – Application dismissed – Copy of judgment to be referred to Ombudsman.

Bail decisions, registrar powers

McDonald v District Court at Christchurch [2021] NZSC 149 (5 November 2021) 

Unsuccessful leave application - Under Bail Act 2000 and under Criminal Procedure Act 2011, registrars could make bail decisions in limited circumstances - For example, under s 27(2) of the Bail Act, the registrar could exercise the power to grant bail “if the prosecutor agrees” – Case here arose in the context of judicial directions given about exercise of these powers – M sought and obtained HC declaration that two directions judges made about bail decisions in family violence cases were unlawful – CA set declaration aside on appeal – CA also dismissed M’s appeal against the HC decision declining to order costs - M sought leave to appeal CA decision –

SC said it is not necessary in the interests of justice to hear and determine appeal - CA carefully addressed issues arising - SC was not persuaded that CA erred in its approach to those issues - Insufficient prospects of success to justify leave being granted - application dismissed.

High Court of Australia

Constitutional law, state powers

Palmer v Western Australia [2021] HCA 31 (13 October 2021) 

Two special cases relating to the validity of Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amending Act) – Plaintiff P, controller and majority beneficial owner of Mineralogy Pty Ltd (Mineralogy), and director of that company and of International Minerals Pty Ltd (International Minerals) - Those companies were plaintiffs in the other special case (plaintiff companies) -  In 2001, Mineralogy and various co-proponents (including International Minerals) made an agreement with Western Australia (agreement) - Under the agreement, Mineralogy, alone or in conjunction with a co-proponent, could submit proposals to the relevant Minister relating to mining projects in the Pilbara region - Minister could respond in various ways but could not reject proposals - Agreement and a 2008 variation to it set out in schedules to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (State Act), and thereby formed part of State Act –

Plaintiff companies submitted proposals to Minister in 2012 and 2013 - Disputes arose regarding 2012 proposal - Disputes referred to arbitration, resulting in arbitral awards dated 20 May 2014 and 11 October 2019 - Awards broadly favoured plaintiff companies - In August 2020, Western Australian Parliament passed Amending Act - Amending Act purported to insert a new Pt 3 into State Act - Within Pt 3, s 9 purported to deprive the 2012 and 2013 proposals of legal effect and s 10 purported to deprive the 2014 and 2019 arbitral awards of the legal effect - P named in various provisions of Pt 3 –

Answering questions stated in the special cases, HC said Amending Act was not invalid or inoperative in its entirety and that ss 9(1), 9(2), and 10(4)-(7) of the State Act were not invalid or inoperative to any extent; it was otherwise unnecessary to consider the validity of Pt 3 or any other provision of the State Act – To reach those conclusions, HC posed series of sub-questions - First, did the manner of enactment of the Amending Act contravene s 6 of the Australia Act 1986 (Cth)? Second, did the Amending Act exceed some limitation on the legislative power of the Parliament of Western Australia arising from the rule of law or deeply rooted common law rights? Third, were ss 9(1), 9(2), and 10(4)-(7) of the State Act invalid on the basis that they were incompatible with Ch III of the Constitution? Fourth, were the same provisions invalid on the basis that they were incompatible with s 118 of the Constitution? Fifth, did the Amending Act single out P for a "disability" or "discrimination" of a kind forbidden by s 117 of the Constitution? The Court's answer to each of those sub-questions was "No".

Employment, disciplinary action, intellectual freedom

Ridd v James Cook University [2021] HCA 32 (13 October 2021) 

Unsuccessful appeal from Full Federal Court - James Cook University (University) employed R for 27 years - From 2016, University took various disciplinary actions against R for conduct it concluded breached the University Code of Conduct and constituted misconduct and serious misconduct under University's Enterprise Agreement - R issued with two censures (2016 Censure and Final Censure) and, on 2 May 2018, his employment was terminated for serious misconduct under the Enterprise Agreement –

R brought proceedings against the University alleging that its actions and termination of his employment contravened the Enterprise Agreement and s 50 of the Fair Work Act 2009 (Cth) (Act) - Did not dispute that conduct occurred and that it would be misconduct or serious misconduct - Said all conduct was an exercise of intellectual freedom protected by cl 14 of Enterprise Agreement and could not be a serious breach of the Code of Conduct - Primary judge said 13 University actions were contrary to cl 14 and ordered the payment of compensation and pecuniary penalties - Full Court majority allowed appeal - Said none of University actions contravened Enterprise Agreement – R appealed to HC –

HC unanimously dismissed appeal – Said intellectual freedom protected by cl 14 of the Enterprise Agreement, not general freedom of speech - Exercise of intellectual freedom subject to constraints in cl 14, including some adopted from Code of Conduct - These constraints upon exercise included respect for the legal rights of others and required that an expression of disagreement with University decision-making be in accordance with applicable processes, including confidentiality obligations – Exercising intellectual freedom not constrained by other Code of Conduct undertakings, such as respect or courtesy –

2016 Censure and part of the basis of Final Censure were unjustified because they related to the expression of R’s honestly held views within his academic expertise - Final Censure justified only to the extent it relied upon expressions of opinion unrelated to R’s academic expertise, and findings that he repeatedly failed to comply with his confidentiality obligations – R ran case on an all-or-nothing basis - Meant termination decision justified through relying upon R’s conduct which was the subject of 18 findings of serious misconduct not protected by cl 14 – Appeal dismissed.

Supreme Court of Canada

Discrimination, disability, Quebec Charter

Ward v Quebec (Commission des Droits de la Personne et des Droits de la Jeunesse [2021] SCC 43 (29 October 2021) 

Successful appeal from Quebec CA – Professional comedian W mocked G, a well-known young person with a disability -  Between September 2010 and March 2013, W performed a popular show called “Mike Ward’s Expose”, where he mocked several prominent people from Quebec’s artistic community - G, a high school student with a singing career, among them – W  also posted video clips of himself mocking the Quebec artists - In 2012, G’s parents filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (Commission), on their behalf and behalf of their son - Commission concluded there was a basis for discrimination - Took W to  Quebec Human Rights Tribunal (Tribunal) on behalf of G - Before the Tribunal, Commission said W’s show and online content infringed Quebec Charter of human rights and freedoms, because of G’s disability - In his defence, W said he had the right to say what he did about G under the Quebec Charter’s protected right to freedom of expression –

Tribunal sided with Commission – Said W had infringed G’s right to dignity, without discrimination, because of his disability under sections 4 and 10 of the Quebec Charter -Tribunal also said W’s comments exceeded the limits of what a “reasonable person” could tolerate as freedom of expression under section 3 of the Quebec Charter – Quebec CA majority dismissed W’s appeal – He appealed to SC -

SC said Tribunal did not have jurisdiction to proceed with this case, because it was not a discrimination complaint – SC majority said Tribunal said G was the target of W’s jokes due to his fame, not his disability - Fame was not a prohibited ground of discrimination under the Quebec CharterThis meant Tribunal did not have jurisdiction to proceed with the case – SC said a reasonable person would not view W’s comments about G,  as inciting others to detest or vilify his humanity – Appeal allowed.

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