New Zealand Law Society - Supreme Court roundup 3 - 9 December 2021

Supreme Court roundup 3 - 9 December 2021

Supreme Court roundup 3 - 9 December 2021

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

New Zealand Supreme Court 

Sentencing, sexual offences

Herlund v R [2021] NZSC 165 (2 December 2021)

Unsuccessful leave application – H pleaded guilty to sexual offending against three young people, AB, CD and EF - This was after trial commenced and after sentence indication (of five years and seven months’ imprisonment) from Judge - Sentenced to five years and two months’ imprisonment – CA dismissed appeal against sentence – Sought leave to appeal leave to appeal to SC – SC did not see appearance of miscarriage of justice in CA result – Application dismissed.

Judgment recall, sexual offences, sexomnia defence

F v R [2021] NZSC 166 (2 December 2021)

Unsuccessful recall application - In August 2015, jury tried F on nine charges of sexual offending against former wife - Primary defence on most (although not all) of charges was sexsomnia — That he had been asleep at the time - Guilty of three of charges — One of rape and two of indecent assault – CA dismissed appeal against conviction - In 2019, he applied to CA for recall of its earlier judgment, based on different and more favourable view doctor had regarding his defence - Application dismissed – Sought leave to appeal against CA judgments dismissing conviction appeal and declining recall - Based on affidavits from doctor and another sleep disorders expert – SC said jurisdictional issues with application - No jurisdiction for SC to hear appeal against CA recall judgment - As well, SC judgment refusing time extension - F’s attempt to again challenge CA judgment dismissing conviction appeal should probably be by recalling earlier SC judgment –

SC said as well as jurisdictional issues two other factors suggested recourse to a more inquisitorial forum might be preferable option – F had alternative option of going to Te Kāhui Tātari Ture | the Criminal Cases Review Commission – Applications dismissed.

Sexual offences, possible exposure of juror to COVID-19

Iuliano v R [2021] NZSC 167 (2 December 2021)

Unsuccessful leave application - I guilty of four charges involving sexual activity with a child – CA dismissed appeal against conviction – Sought leave to appeal to SC – Said various factors, including possible exposure of a juror to COVID-19 – may have affected trial – SC said although likely that jury trials would in future face disruption due to pandemic, issues raised here so particular to case at hand that arguments I wished to rely on did not raise any question of general or public importance - No appearance of miscarriage of justice - Application dismissed.

Invasion of privacy, liability

Peters v Attorney-General and ors [2021] NZSC 170 (2 December 2021)

Unsuccessful leave application - In 2010, P began receiving New Zealand Superannuation -Due to innocent completing the form (which was unclear in material respect), he was paid at higher, single rate instead of the lower, partnered rate - Overpayment discovered in 2017 and P immediately arranged for it to be repaid - Ministry of Social Development (MSD) Chief Executive, Bo, advised of overpayment - Informed State Services Commissioner, H - Bo also informed T, then Minister of Social Welfare - H later also informed Be, then Minister for State Services - Around three weeks later, a number of reporters received anonymous calls referring to overpayment, and it was later publicised in news media –

P brought proceedings in HC against MSD, Bo, H, T and Be for tort of invasion of privacy – HC said P had reasonable expectation that overpayment details would not be disclosed to media but dismissed claims because he could not establish that defendants were responsible for disclosure to media –

P appealed against dismissal of his claims against Bo, H and MSD – CA agreed that overpayment information should not have been disclosed to media - However, it  dismissed appeal because a) regarding claims against Bo and H , no reasonable expectation that they would not disclose the information to their Ministers in good faith, and in any event they were protected by statutory immunity for Chief Executives under s 86 State Sector Act 1988; and b) Regarding MSD, P could not show that it must have been someone from that Department that disclosed information to  media –

P sought leave to appeal CA decision to SC – SC said matters P raised involved matters of general and public importance – However, case turned on facts - Even if arguments were resolved in P’s favour, result could not change because P could not establish who made disclosure to press or even whether it was an official from MSD – Application dismissed.

Self-represented litigants, recall applications

Kaye and anor v McKinnon [2021] NZSC 168 (3 December 2021)

Unsuccessful leave application – Self-represented K sought leave to appeal against two CA judgments – First dealt with application to recall earlier CA judgment - Earlier CA judgment (delivered in 2016) dismissed appeal against HC decision dismissing their claim against M – Second was judgment dismissing a second recall application regarding 2016 CA judgment – SC said no proper basis on which leave could be granted – Applications dismissed.

Costs, liquidators’ conduct

Little v NZ Natural Therapy Ltd (In liquidation) and ors [2021] NZSC 169 (3 December 2021)

Unsuccessful leave application – L sought leave to appeal against CA decision dismissing his appeal against HC costs judgment – NZN liquidators sued L initially for large sum - Dispute as to whether NZN trustee of a trust, a matter which required HC ruling after extensive argument – HC said NZN trustee - Matter adjourned - After receiving trust documentation, liquidators claimed amount L owed on current account ($323,148) – L disputed liability for $323,148 - HC found against him after a four day hearing –

L appealed to CA but abandoned challenge to finding that he owed $323,148 when CA hearing commenced - Instead, wished to argue that he should not have to pay the full debt amount where it exceeded extent of creditors’ claims against company (about $208,000) because liquidators’ conduct had been disproportionate to amount in issue – CA adjourned hearing and referred case back to HC, to determine defence based on disproportionality - Led to a further HC hearing, after which defence rejected –

Subsequent to that decision, HC Judge dealt with liquidators’ costs application - Awarded costs on a 2B basis (which amounted to $151,245.50) and disbursements of $65,124.82 - Refused liquidators’ application for increased costs – CA upheld costs decision –

In SC, L said should not have to pay costs because liquidators’ actions were disproportionate – Said creditors totalled $208,000 - Initial claim for over $1 million and at one stage the liquidators made a settlement offer which was, in effect, demand for over $1.6 million – L offered $150,000 – Said neither HC nor CA put sufficient weight on liquidators’ conduct - Particularly critical of HC Judge for not mentioning the settlement offer of $1.6 million, especially when it made an allowance for liquidators’ costs that had yet to be incurred –

SC said issues essentially of fact, particularly parties’ conduct – No matters of general or public importance - No appearance of miscarriage of justice in CA – Application dismissed.

Self-represented litigant, abuse of process

Paterson v Lepionka & Company Investments and ors [2021] NZSC 171 (3 December 2021) 

Unsuccessful leave application – Self-represented P had dispute with L and companies associated with him over development of land in Hawkes Bay – P adjudicated bankrupt on 5 April 2016, on the LCIL application for unpaid costs - Application unopposed – P’s applications to annul adjudication dismissed on 16 June 2016 (by Associate Judge) and 21 November 2018 (by another Associate Judge) – CA dismissed appeal against second judgment in November 20219 (first bankruptcy litigation) –

P (or people associated with him) sought to advance claims or arguments against Mr L, LCIL and associated parties which overlap (substantially or completely) with those addressed in the first bankruptcy litigation and other proceedings –

P’s argument in SC confined to striking out appeals of malicious prosecution proceedings and a bankruptcy second adjudication – Regarding malicious prosecution, arguments essentially same as before associate judges and CA – Abuse of process – P’s opposition to second adjudication and basis of his proposed appeal substantially repeated contentions which had been resolved in earlier litigation – CA correct to characterise proposed appeal as abuse of process – Applications dismissed.

Recall, “very special reason”

McIntosh v Chief Executive, Department of Corrections [2021] NZSC 172 (3 December 2021)

Unsuccessful recall application – SC said basis for recall not articulated - Appeared to be on based on very special reason for requiring recall – SC did not see refinement of M’s previous argument as changing its view – Application dismissed.

Mandamus, abuse of process

Siemer v Auckland High Court and anor [2021] NZSC 173 (6 December 2021)

Unsuccessful leave application – S issued proceedings in HC seeking writ of mandamus to require  HC and Palmer J to issue judgment on whether order should be made against him under s 166 of the Senior Courts Act 2016 – Another HC Judge struck proceedings out as abuse of process – CA struck out appeal on same ground – S sought leave to appeal to SC – HC and CA conclusions that proceedings and appeal were abuses of process undoubtedly correct for reasons they gave – Same for leave application – Application dismissed.

Supreme Court of Canada

Tax, foreign subsidiary, arms-length transaction

Canada v Loblaw Financial Holdings Inc [2021] SCC 51 (3 December 2021)

Unsuccessful appeal from Federal CA - Loblaw Financial Holdings Inc. (LF) a Canadian company - Loblaw Group (LG), which also owned grocery stores, owned LF - In 1992, LF opened bank in Barbados called Glenhuron Bank Limited (G) - G did corporate banking, managing money of various companies - Between 1992 and 2000, both LG and LF invested money in G - In 2013, LG closed G –

In its Canadian tax returns for years 2001 to 2005, 2008, and 2010, LF did not include money G made, claiming revenue exempt from income tax - Law was Canadian companies had to pay taxes on money their foreign affiliates earned abroad – That money was “foreign accrual property income” (FAPI) - However, bank could get a tax exception if it was doing business mainly with companies that were not related to it - “arm’s length requirement” –

Canadian Minister of National Revenue denied tax exception - LF appealed to Tax Court - In Tax Court, Minister argued the exception did not apply - Tax Court agreed- LF appealed to Federal CA, which sided with LF - Said exemption applied - Minister appealed to SC -

SC sided with LF: tax exception applied and LF did not have to pay taxes on money G made - SC judge said “the FAPI regime is one of the most complicated statutory regimes in Canadian law” - But she said question here was simple - Is a company “doing business” with a foreign affiliate when it manages and gives money to it? She said answer was no –

When arm’s length requirement in Income Tax Act read in its grammatical and ordinary sense, clear giving money to and management of affiliate not included in “doing business” – LF managed and gave money to G, but was not doing business with it - Rather, as a corporate bank, G was doing business with other companies not related to it - Arm’s length requirement met - Tax exception applied and LF did not have to pay taxes on money G made for years in question – Appeal dismissed.

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