New Zealand Law Society - Supreme Court roundup 12 November - 18 November 2021

Supreme Court roundup 12 November - 18 November 2021

Supreme Court roundup 12 November - 18 November 2021

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

New Zealand Supreme Court 

Second judgment recall

Siemer v Auckland High Court and anor [2021] NZSC 150 (8 November 2021)

Unsuccessful second recall application - On 20 September 2021, SC dismissed S’s application for leave to appeal against CA decision which upheld the Deputy Registrar’s decision to decline to waive security for costs – S’s application to recall judgment dismissed on 21 October 2021 – S applied again to recall SC judgment - Nothing raised provided any basis to recall judgment – Application dismissed.

Judgment recall

Poutama Kaitiaki Charitable Trust and anor v Taranaki Regional Council and ors [2021] NZSC 153 (8 November 2021)

Unsuccessful judgment recall application - Trust filed memorandum in Court which effectively sought the recall of previous SC decision as reissued on 23 September 2021 - Nothing advanced which would warrant recall - Application dismissed.

Family Proceedings, variation of nuptial settlement

Preston v Preston and ors [2021] NZSC 154 (9 November 2021)

Successful appeal from CA - Under s 182 of the Family Proceedings Act 1980, Court had power to vary terms of a nuptial settlement where parties’ marriage or civil union comes to an end - Court had previously considered principles to be applied in determining whether orders should be made under s 182 - Cases made it clear that’s 182  purpose to enable courts to remedy consequences of the failure of the premise on which the nuptial settlement was made, that was, a continuing marriage - Appeal raised questions about approach to s 182 in respect of a nuptial settlement different from previous decisions - Both those cases involved marriages of over ten years’ duration in which there were children of the spouses together, and there was wealth created during the marriage - In present case, the Ps separated after a little under five years’ marriage, both had children of their own from previous relationships and no children together, and the assets in issue were primarily owned by a Trust and settled on that Trust prior to their marriage -

After the marriage came to an end, Mrs P sought orders under s 182 for a share of the assets the Trust owned - She also sought orders under ss 9A, 15, 15A, 17, 44, and/or 44C of the Property (Relationships) Act 1976, as well as making a claim for an equitable interest in the family home and shares in a contracting business, Mr P operated - Mrs P also brought a claim relating to a property at Pauanui which had been purchased during the marriage and ultimately settled on the Trust and another trust she had set up – HC largely dismissed Mrs P’s claims –

Mrs P appealed to CA - Mr P cross-appealed on finding that a 2010 amendment deed was a nuptial settlement – CA dismissed cross-appeal, affirming that the amendment deed was a nuptial settlement - Mrs P’s appeal succeeded in one respect, finding that Trust was in breach of its obligation to sell its share in the Pauanui property to Trust she set up - Her appeal otherwise dismissed –

Mrs P appealed to SC on whether CA correct to dismiss her appeal on her claim for orders to secure part of the assets of the Trust under s 182 - Whether 2010 amendment deed constituted nuptial settlement no longer in issue – SC confirmed that principles discussed in previous cases applied equally to a case like the present. Applying those principles, no presumption of a 50/50 or any other fractional division in this type of case - Parties ultimately agreed that if SC decided the appeal in Mrs P’s favour, it should make orders so as to finally resolve the dispute between the parties - Allowing the appeal, SC concluded orders that effectively resulted in Mrs P being paid $243,000 – Appeal allowed – Mr P ordered to pay Mrs P $25,000 costs.

Manslaughter, sentencing

Mehrok v R [2021] NZSC 155 (11 November 2021)

Unsuccessful leave application – M convicted of manslaughter for killing a 14-week-old baby on 7 June 2016 - He was 19 at the time - Baby belonged to his then-partner who had gone out at the time of the offence - M attempted to soothe the baby when he began to cry, but was unsuccessful – M went into one of the bedrooms and threw the baby, causing massive head trauma – M s initially charged with and convicted of murder in 2017 - Retried following a successful appeal against conviction and found guilty of manslaughter in 2020 –

In addition to murder charge, M also charged with multiple assaults on other children living in the same household - These occurred before baby’s death - M admitted responsibility for baby’s death, and his assault charges were severed from the murder charge as a result - M sentenced to seven years and nine months imprisonment for the manslaughter – CA dismissed his appeal against sentence –

Sought leave to appeal to SC – Said case raised three issues of general or public importance: (a) whether guilty plea discount precluded any further discount for steps taken to shorten proceedings; (b) whether uplift for the convictions relating to other children appropriate where those convictions were entered after the date of the index offending; and (c)whether it was appropriate to reduce a youth discount for lack of remorse and poor rehabilitation prospects – M also said reducing youth discount in his case resulted in a miscarriage of justice –

On (a) SC said HC declined to give M discount for taking steps to shorten his trial, as provided by s 9(2)(fa) of the Sentencing Act 2002 – CA upheld the decision, noting that admitting evidence that was plainly not in dispute would not usually attract a discrete discount – SC said whether discounts should be given for concessions in relation to undisputed evidence raised potential question of principle, but the provision was cast in factual terms – Regarding (b) SC said ground had insufficient prospects of success to justify leave grant – On (c) SC said this was not an appropriate case to address issue - Application dismissed.

Holiday pay calculation, “driver guide”

Tourism Holdings Limited v A Labour Inspector [2021] NZSC 157 (15 November 2021)

Partially successful appeal from CA - Appeal concerned calculation of holiday pay for a tour company bus “driver guide” whose (a) work pattern was dictated by the length of tours rather than the calendar week; and (b) remuneration included commission which varied in amount from tour to tour and was paid after the conclusion of each tour – The issue on appeal was how commission payments paid shortly before commencement of annual holidays were taken into account in calculating ordinary weekly pay – SC said payments were “a regular part of the employee’s pay” if they were of a kind made regularly when assessed against the standard of a four-week period – Appeal otherwise dismissed.

Self-represented applicant, commonalities to applications

Roe v New Zealand Vice-Chancellors Committee [2021] NZSC 158 (15 November 2021)

Unsuccessful leave application - Self-represented R filed three applications for leave to appeal against CA Judges decisions - Some interconnection between two of the applications and some commonalities to all three so SC decided them together - Applications involved very particular litigation where the underlying disputes were personal to R and did not raise issues of general or public importance - None of the appeals she wished to pursue had obvious merit - All applications for leave dealt with process issues – Applications dismissed.

High Court of Australia

Aggravated indecent assault, “anti-tendency” direction

Hamilton v R [2021] HCA 33 (3 November 2021)

Unsuccessful appeal from New South Wales CA – H convicted of ten counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW), which were alleged to have been committed on separate occasions against three of his five children - Appeal to HCA concerned whether H’s trial of miscarried because the trial judge did not give the jury an "anti-tendency direction", namely, that the jury must not reason, from a finding that H was guilty of one charged offence, to conclude that he was guilty in respect of other charged offences because he was the kind of person who engaged in that kind of misconduct –

At trial, defence had not sought to have counts tried separately - Rather, embraced opportunity to have all ten counts tried together as part of a strategy of inviting the jury to consider the evidence of all the complainants on all counts and, from considering totality of evidence, to conclude that children fabricated their allegations against him at the urging of their mother, H’s former wife - Defence counsel had not sought an anti-tendency direction - Defence counsel did, however, secure a direction from trial judge that jury could not convict H on any count unless they were satisfied beyond a reasonable doubt that the evidence of each child was honest and reliable regarding each of the counts concerning that child (a "Murray direction") - Trial judge also directed the jury that they were required to give separate consideration to each count –

HC majority said on the issues tendered by the parties to the jury in this case, anti-tendency direction not necessary to ensure that the jury did not reason to guilt by reliance on impermissible tendency reasoning - Issue of credibility as between H on the one hand, and each of the complainants and their mother on the other hand, was overwhelmingly likely to be decisive of H’s guilt on any count - Confronted with that stark contest of credibility, and in circumstances where the jury had been instructed to consider each count separately and had been given a Murray direction, the jury would have no occasion to resort to tendency reasoning –

Counsel's decision not to seek anti-tendency direction could be seen to have been a deliberate decision based on the circumstance that he did not consider that such a direction was necessary to ensure a fair trial – Majority said CA correct to conclude no miscarriage of justice at trial – Appeal dismissed.

Income tax, working holiday, double taxation

Addy v Commissioner of Taxation [2021] HCA 34 (3 November 2021)

Successful appeal from Full Court of FCA – A was a national of the United Kingdom who, between August 2015 and May 2017, lived and worked in Australia while holding a working holiday visa - On appeal to HC, no dispute that A was an Australian resident for tax purposes during the 2017 income year - Commissioner issued A with an amended notice of assessment for that income year which applied Pt III of Sch 7 Income Tax Rates Act 1986 (Cth) (Rates Act) to A’s assessable income after 1 January 2017 –

Principal question in the appeal was whether Pt III contravened Art 25(1) of the Convention between Australia and the United Kingdom for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains (United Kingdom convention) by imposing a more burdensome taxation requirement on a national of the United Kingdom than that imposed on an Australian national in the same circumstances –

HC said, among other things, an Australian national deriving taxable income from the same source during the same period would have been taxed at a lower rate under Pt I of Sch 7 - The more burdensome taxation was imposed on A owing to her nationality and, for that reason, contravened Art 25(1) of the United Kingdom convention – Appeal allowed.

Supreme Court of Canada

Overseas judgment, enforcement in Canada

H.M.B. Holdings v Antigua and Barbuda [2021] SCC 44 (4 November 2021)

Unsuccessful appeal from Ontario CA - In 2007, Antigua expropriated beachfront property owned by H.M.B. Holdings Limited (H.M.B.), a company incorporated in that country - In 2014, the court of final appeal for Antigua ordered the government to compensate H.M.B. for the expropriation - In 2016, H.M.B. commenced legal action in British Columbia to enforce the judgment in that province - At the time, Antigua had no office or premises in British Columbia - However, for the purposes of its Citizenship by Investment program, Antigua did have contracts with four authorised representatives with their own businesses, premises and employees in British Columbia - Antigua did not respond to the legal action, and a judgment by default was registered against it in British Columbia SC –

Shortly afterward, H.M.B. applied to have British Columbia judgment registered in Ontario, so that it could be enforced there - Ontario’s Reciprocal Enforcement of Judgments Act (REJA) allowed a judgment from another province or territory to be registered for enforcement in Ontario - Antigua objected to H.M.B.’s application citing two REJA sections - Section 3(b) said an entity had to be “carrying on business” in the jurisdiction where the judgment was rendered - Section 3(g) said a judgment could only be registered in Ontario if the opposing party would have a good defence if ever the original judgment were challenged - Ontario Superior Court decided the British Columbia judgment could not be registered in Ontario - H.M.B. appealed to the Ontario CA, which said British Columbia judgment could not be registered, because of section 3(b) of the REJA only - H.M.B. then appealed to SC –

SC majority agreed with Antigua - Said section 3(b) REJA barred H.M.B. from registering the British Columbia judgment in Ontario because Antigua was not “carrying on business” in British Columbia - In light of this, majority concluded it was unnecessary to consider whether section 3(g) also barred H.M.B. – Majority said to determine whether a company was carrying on business in a jurisdiction, the court must decide whether the company had some direct or indirect presence there, accompanied by a degree of business activity that was sustained for a period of time - Whether or not a company was carrying on business was a question of fact – Appeal dismissed.

Criminal law, parties to an offence, armed robbery

R v Cowan [2021] SCC 45 (5 November 2021)

Successful Crown appeal from Saskatchewan CA - Two people robbed a Subway restaurant in Regina, Saskatchewan on July 7, 2016 - One wore a mask and brandished a knife, while the other stood watch at the front door - Only employee on duty at the time could not identify the two robbers, but the restaurant security camera had captured images of the masked person - An anonymous tip implicated C and he was arrested soon after – C denied having any involvement in the incident and he claimed to have an alibi - However, he did admit to telling a group of people “how to do a robbery” on the same day it occurred - Police also noted C had been wearing shoes that closely resembled those worn by the masked person in the images from the security camera –

C charged with armed robbery - Tried by judge alone with no jury - At trial, the Crown advanced two theories about what happened - First was that C was the masked armed robber and, as a result, was guilty as a principal offender - Second theory was that if he was not the masked man, C was a guilty party because he had either helped commit the crime or had advised others on how to do it - Trial judge rejected both theories and acquitted C -

Crown appealed to CA  - It agreed with trial judge that C was not a principal offender - Judges did not all agree, however, with trial judge’s finding that the Crown had to first prove who had committed the actual robbery before finding C guilty of helping or advising others on how to commit the crime - CA majority said this error may have affected the verdict - Allowed appeal, set aside acquittal and ordered a new trial on the second theory of liability –

C and the Crown appealed CA ruling to SC – C said trial judge made no error and his acquittal should stand - Crown said CA not allowed to limit a new trial to a single theory of liability - Instead, Crown said there should be a new trial on the charge of armed robbery as a whole -

SC dismissed C’s appeal and allowed Crown’s appeal - New trial would be on the charge of armed robbery as a whole.

United Kingdom Supreme Court

Proceeds of crime, directors conduct, attribution to company

Crown Prosecution Service v Aquila Advisory Ltd [2021] UKSC 49 (3 November 2021)

Unsuccessful appeal from CA – F and P were directors (directors) of Vantis Tax Ltd (VTL). During this time, directors exploited their position in breach of their fiduciary duty to make a secret profit of £4.55m - £4.55m was also the benefit obtained by the directors from their crime of cheating the public revenue by dishonestly facilitating and inducing others to submit false claims for tax relief. - VTL went into administration - Aquila Advisory Ltd (Aquila) was assigned VTL’s proprietary rights - Following the directors’ criminal convictions, the Crown Prosecution Service (CPS) sought confiscation orders under the Proceeds of Crime Act 2002 (POCA) against them - P ordered to pay £809,692 and F ordered to pay £648,000 to CPS –

Aquila said directors should be treated as having acquired the benefit of the secret profit on behalf of VTL - Aquila said, as a result, the £4.55m was beneficially owned by VTL under a constructive trust, and now the beneficial interest in that trust had been assigned to Aquila –

Aquila said because it had a proprietary claim to the secret profit of £4.55m, its claim took priority over the confiscation orders, which did not give the CPS any form of proprietary interest - If this was correct, Aquila would be entitled to all directors’ assets, leaving nothing to satisfy the confiscation orders –

At first instance, trial judge granted a declaration that an amount of £4.55m was held on constructive trust in favour of VTL, whose rights had since been assigned to Aquila - Further, and in accordance with an agreement between the parties, trial judge declared that CPS was obliged to give instructions to transfer net proceeds realised from all the assets listed in the confiscation orders to Aquila -

CPS appealed to CA - Said directors’ actions should have been attributed to VTL, and thus VTL should have been barred from recovering any proceeds of crime because of the principle of illegality - Principle of illegality was that a person should not be permitted to benefit from his or her illegal act. CA dismissed the appeal –

CPS appealed to SC – It dismissed appeal – Said unlawful acts or dishonest state of mind of a director could not be attributed to the company to establish an illegality defence defeating the company’s claim under a constructive trust – Said constructive trust (and thus VTL’s beneficial ownership of the secret profits) arose automatically when directors breached their fiduciary duties - At no stage did directors own the secret profits in equity – SC said trial judge’s order recognised this reality and was a proper exercise of his discretion – Appeal dismissed.

Data controller duties, Google, class action, standing

Lloyd v Google LLC [2021] UKSC 50 (10 November 2021)

L claimed G breached its duties as a data controller under Data Protection Act 1998 (DPA) to over 4m Apple iPhone users during a period of some months in 2011- 2012, when G was able to collect and use their browser generated information.-  L sued on his own behalf and on behalf of a class of other residents in England and Wales whose data was collected in this way - Applied for permission to serve the claim out of the jurisdiction - G opposed application on the grounds that (i) the pleaded facts did not disclose any basis for claiming compensation under the DPA and (ii) the court should not, in any event, permit the claim to continue as a representative action –

Except in the field of competition law, Parliament had not enacted legislation providing for class actions, in which a single person could claim redress on behalf of a class of people similarly affected by alleged wrongdoing – However, L sought to relyon a long standing procedure in England and Wales, and now embodied in rule 19.6 of the Civil Procedure Rules (CPR), which allowed a claim to be brought by (or against) one or more persons as representatives of others who had the "same interest" in the claim – L said "same interest" requirement satisfied here and that representative procedure could be used to recover uniform sum of damages for each person whose data protection rights have been infringed, without having to investigate their individual circumstances - A sum of £750 per person suggested which, multiplied by the number of people whom L claimed to represent, would produce an award of damages of the order of £3 billion -

Because G was a Delaware corporation, claimant needed the court's permission to serve the claim form on G outside the jurisdiction - G opposed application on grounds that: (1) damages could not be awarded under the DPA without proof that a breach of Act requirements caused an individual to suffer financial damage or distress; and (2) claim, in any event, is not suitable to proceed as a representative action – HC decided both issues in G’s favour and therefore refused permission to serve the proceedings on G -  CA reversed that decision – G appealed to SC –

SC unanimously allowed appeal and restored HC order - Analysed history and scope of representative procedure and endorsed the view, found in the old case law, that it was a "flexible tool of convenience in the administration of justice" - This broad and adaptable approach had been adopted by highest courts of Australia, Canada, and New Zealand - Even more appropriate in modern conditions including the development of digital technologies which have greatly increased the potential for mass harm for which legal redress might be sought -

In this case, a representative claim could have been brought to establish whether G breached DPA as a basis for pursuing individual claims for compensation - However, claimant had not proposed such a two–stage procedure, doubtless because the proceedings would not be economic if it was necessary to prove loss on an individual basis – Instead L said uniform sum of damages could be awarded to each member of the represented class without the need to prove any facts particular to that individual –

Attempt to recover damages without proving either what, if any, unlawful processing of personal data occurred in the case of any individual or that the individual suffered material damage or mental distress as a result of such unlawful processing was unsustainable -  Claim could not succeed and permission to serve proceedings on G outside the jurisdiction was rightly refused by the judge  - Appeal allowed.

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