New Zealand Law Society - Supreme Court roundup 19-25 February

Supreme Court roundup 19-25 February

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

New Zealand Supreme Court

Judgment recall, Deputy Registrar decision

Siemer v Deputy Registrar of Supreme Court [2021] NZSC 3 (11 February 2021)

Unsuccessful application for recall of SC judgment – Self-represented S applied for the recall of SC judgment of 27 November 2020 in which his application for review of Deputy Registrar’s decision application for directions dismissed - Nothing in application or affidavit filed with it disclosed any reason that justice required judgment to be recalled, let alone a “very special reason” – Application dismissed.

CA Costs decision, standard for miscarriage in civil cases

Stringer v Craig and ors [2021] NZSC 5 (16 February 2021)

Unsuccessful leave application – Self-represented S applied for leave to appeal against CA costs decision - Application out of time but it appeared S assumed time only commenced when CA judgment sealed – Time extension granted – Substantive application did not meet heightened standard for miscarriage ground in civil cases - S correct that he did not apply for a stay in HC - However, he first raised issue estoppel in HC, and submitted C was abusing the Court’s processes. Consequently, no question of general or public importance arose either – Application dismissed.

Strike out, judicial review, abuse of process

Prasad v Indiana Publications and ors [2021] NZSC 6 (16 February 2021)

Unsuccessful leave application – Self-represented P sought leave to appeal from CA decision striking out his appeal to that Court - In May 2003 P filed proceedings alleging infringement of copyright - Proceedings finally decided against his interests in April 2008 - Since then, issued various proceedings - Present proceedings related to 2020 judicial review application in HC - Sought a range of relief including “re-opening” HC 2009 proceedings, “revisiting” another decision made in those proceedings on 27 July 2009 and “issuing an amended judgment clarifying the proper interpretation” of various sections of the Copyright Act 1994 - Judicial review proceedings struck out in HC as an abuse of process – HC said P , under guise of judicial review, seeking to revisit the question of copyright ownership and infringement which had already been dealt with - CA agreed, saying proceedings sought to be reopened had been struck out as an abuse of process and relevant appeal rights exhausted – SC said plain from leave application and associated material that proposed appeal would challenge outcome of the proceedings filed in 2003 - No question of general or public importance arose - Nor did SC see any error in assessment of Courts below that proceedings and proposed appeal to CA were an abuse of process – Leave criteria not met – Application dismissed.

Maori land, trust, account to trust

Nicholls v Nicholls and ors [2021] NZSC 8 (19 February 2021)

Unsuccessful leave application – GN beneficial owner in 27 multiply-owned Māori freehold land blocks (the land) vested in W T Nicholls Trust trustees - Trust an Ahu Whenua Trust under s 220 of Te Ture Whenua Maori Act 1993 (the Act) - From 2010, GN operated a coastal holiday park for profit on part of the land situated at Oamaru Bay, north of Coromandel - Took over holiday park business from his brother, who also was a beneficial owner in the land - Brother had operated the holiday park since 2007 – Trust established in 2011 - Trustees brought proceedings against GN and his brother seeking their removal from the land and requiring them to account to the Trust for income from the camping ground since its inception - Brothers opposed proceedings generally saying Māori Land Court had no jurisdiction to require them to give an account - In December 2012, Māori Land Court made orders excluding the brothers from the land - In December 2017, following a lengthy process in which the Court supervised a taking of account the Court ordered: (a) brothers pay the trustees $442,593.00, less their share as co-owners, relating to income obtained prior to Trust formation ; and (b) GN alone account to trustees for $391,824.00 obtained after Trust established – GN’s appeals to the Māori Appellate Court and CA were dismissed in December 2018 and August 2020 - Sought leave to appeal to SC – SC said not necessary in the interests of justice to grant leave here - Although issues regarding Māori Land Court jurisdiction could well involve matters of general or public importance, no such matter arose here because proposed appeal grounds had insufficient prospects of success - Application dismissed.

Remission of proceedings to CA

Ortmann and ors v United States of America and anor [2021] NZSC 9 (22 February 2021)

Remission of proceedings to CA to identify outstanding issues relating to judicial review appeals – SC 4 November 2020 judgment allowed appellants’ appeals relating to judicial review applications - However, judicial review aspect of appeals limited to determining whether CA erred to hold judicial review proceedings were an abuse of process - SC sought submissions from the parties on whether it should address issues remaining to be resolved in another hearing or remit proceedings to CA for resolution - Parties divided on which issues remained to be resolved (if any) and on which Court should address any unresolved issues – Matter remitted to CA.

High Court of Australia

Terrorism, continuing detention, protecting the community, constitutional law

Minister of Home Affairs v Benbrika [2021] HCA 4

Referral from Victorian CA - On 15 September 2008, Victorian SC convicted B of being a member of a terrorist organisation and directing the activities of a terrorist organisation - Crown case was B and others were members of a Melbourne-based terrorist organisation that was fostering or preparing to do a terrorist act in Australia or overseas – B sentenced to an effective imprisonment term of 15 years with 12 year non-parole period - Sentence expired on 5 November 2020 - On 4 September 2020, Minister of Home Affairs (Minister) commenced proceedings in Victorian SC, seeking continuing detention order (CDO) under Div 105A of the Criminal Code (Cth) (the Code) – This empowered SC of a State or Territory, on Minister’s application, to order that person convicted of a terrorist offence be detained in prison for a further period after the expiration of his or her sentence of imprisonment -On 24 December 2020, ordered that B be subject to a CDO to be in force for a three year period – B’s principal argument against order was that, exceptional cases aside, the involuntary detention of a citizen in State custody penal or punitive in character and existed only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt (the Lim principle) - Said Div 105A scheme for preventative detention neither complied with, nor fell within a recognised exception to, this principle and so could not be conferred as federal judicial power – HCA majority said a scheme that was appropriately tailored to protecting the community from the singular threat posed by terrorist criminal activity capable of coming within an exception to the Lim principle – Analogous to other established exceptions that shared purpose of protecting the community from harm, such as detention of those suffering from mental illness or infectious disease - Taken as a whole, particularly as the power to make a CDO under Div 105A was conditioned on a judge being satisfied not only that the risk of commission of certain offences "unacceptable" but also that no other, less restrictive measure would be effective in preventing that risk, division rightly characterised as directed to ensuring safety and protection of the community from risk of harm posed by the threat of terrorism - Accordingly, Div 105A validly conferred the judicial power of the Commonwealth on the Supreme Court of a State or Territory.

Singapore Court of Appeal

Arbitration, liability, fraud, out of time

Bloomsbury Resorts and Hotels Inc and anor v Global Gaming Philippines and anor [2021] SGCA 9

Unsuccessful appeal from HC - dispute arose out of Management Services Agreement (Management Agreement) between BRH and GGP on 9 September 2011, under which the first respondent was to manage the development and operation of the Solaire Resort and Casino (Solaire Casino) - In July and September 2013, BRH alleged that respondents committed a material breach of the Management Agreement and issued a formal Notice of Termination - Respondents then commenced arbitration proceedings against BRH for wrongful termination - Arbitration bifurcated into liability and damages tranches – On 20 September 2016, the arbitral tribunal issued its partial award on liability (Award) and rejected BRH claims of misrepresentation, casual fraud or that termination of the Management Agreement was justified - On 21 December 2017, BRH applied HC to set aside the Award and alternatively, to resist Award enforcement because Award induced or affected by fraud and was contrary to Singapore public policy – BRH relied on what claimed was evidence of fraud and/or corruption that was not discoverable until months after Award issued - Argued arbitration would have proceeded on a wholly different basis and resulted in a materially different outcome if respondents had not concealed evidence of fraud that was later revealed by investigations carried out in the United States in the activities of an American casino operator, Las Vegas Sands Corp (LVS) - Evidence took the form of two documents: (a) Order dated 7 April 2016 issued by the US Securities and Exchange Commission (SEC) instituting cease-and-desist proceedings against LVS (the SEC Order); and (b) a Non-Prosecution Agreement between the US Department of Justice and LVS (the “DOJ Agreement”) - These were collectively referred to as the “FCPA Findings” - HC dismissed the appellants’ applications, saying amongst other things, that (a) application brought out of time as was filed beyond the three-month time limit prescribed by Art 34(3) of the Model Law, which also applied to applications under s 24 of the IAA; (b) that the FCPA did not disclose fraud in LVS, much less in the Solaire Casino, BRH perjury allegation not made out and (c) no unlawful concealment of information by the respondents’ counsel in the arbitration - BRH appealed to CA – CA said three-month time limit for setting aside an arbitral award, as stated in Art 34(3) of the UNCITRAL Model Law on International Commercial Arbitration, as set out in the First Schedule of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (IAA) could not be extended even in cases of fraud - Three-month time limit applied to an application to set aside an arbitral award under s 24 of the IAA, as s 24 of the IAA did not create a separate regime for the setting aside of an arbitral award - “Fraud” within the meaning of s 24(a) of the IAA included procedural fraud, that was, when a party committed perjury, concealed material information and/or suppressed evidence that would have a substantial effect on the making of the award – There had to be a causative link between any concealment aimed at deceiving the arbitral tribunal and the decision in favour of the concealing party – Here there was not – Appeal dismissed.

United Kingdom Supreme Court

Uber drivers, contractors or employees

Uber BV and ors v Aslam and ors [2021] UKSC 5

Unsuccessful appeal from CA - Main question raised is whether Uber driver a “worker” for the purposes of employment legislation which gave “workers” rights to be paid at least national minimum wage, to receive annual paid leave and benefit from certain other protections - Uber BV (Uber) a Dutch company which owned the technology behind the Uber app - Uber London Ltd was a UK subsidiary licensed to operate private hire vehicles in London - Claimants, A and F at relevant times licensed to drive private hire vehicles in London and did so using the Uber app - Claim brought in employment tribunal as test case to establish their employment status - At time of tribunal hearing in 2016, number of Uber drivers operating in UK was estimated to be around 40,000, of whom around 30,000 operating in the London area – Definition of “worker” in section 230(3) of the Employment Rights Act 1996 and other relevant legislation included anyone employed under a contract of employment but also extended to some individuals who were self-employed - In particular, definition included an individual who worked under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual” - Employment tribunal said A and F satisfied this test and worked under worker’s contracts for Uber London - Employment Appeal Tribunal and a CA majority dismissed Uber’s appeals – Uber appealed to SC – SC unanimously dismissed Uber’s appeal – Uber argued that Uber BV acted solely as a technology provider with its subsidiary (Uber London in this case) acting as a booking agent for drivers who Uber London approved by to use the Uber app - Uber argued that, when ride booked through the Uber app, contract made directly between driver and the passenger whereby driver agreed to provide transportation services to the passenger – Uber app calculated the fare the passenger paid it to Uber BV, which deducted part (20% in these cases) and paid the balance to the driver - Uber characterised this process as collecting payment for driver and charging a “service fee” to driver for using its technology and other services - Uber relied on the wording of its standard written contracts between Uber BV and drivers and between Uber companies and passengers - Uber also emphasised that drivers were free to work when they wanted and as much or as little as they wanted - Uber argued that drivers were independent contractors who worked under contracts made with customers and did not work for Uber – SC disagreed - On the facts there was no written contract between the drivers and Uber London - Nature of their legal relationship had to be inferred from the parties’ conduct – Also, no factual basis for asserting that Uber London acted as agent for drivers - Correct inference was Uber London contracted with passengers and engaged drivers to carry out bookings for it - In any event, wrong in principle to treat the written agreements as a starting point in deciding whether an individual was a “worker” - SC considered a previous decision - Correct approach was to consider the purpose of the relevant employment legislation - That purpose was to protect vulnerable individuals who had little or no say over their pay and working conditions because they were in a subordinate and dependent position in relation to a person or organisation which exercised control over their work - Legislation also precluded employers, frequently in a stronger bargaining position, from contracting out of these protections – SC emphasised five aspects of employment tribunal findings which justified its conclusion that claimants were working for and under contracts with Uber - First, where a ride was booked through the Uber app, Uber set the fare and drivers were not permitted to charge more than the fare Uber app calculated - Therefore Uber dictated how much drivers were paid for the work - Second, Uber imposed contract terms on which drivers perform their services and drivers had no say in them - Third, once a driver logged onto the Uber app, Uber constrained the driver’s choice about whether to accept requests for rides - Fourth, Uber also exercised significant control over the way in which drivers deliver their services - Fifth significant factor was Uber restricted communications between passenger and driver to the minimum necessary to perform the particular trip and took active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride - Taking these factors together, Uber very tightly defined the transportation service drivers performed offered to passengers through the Uber app – SC said employment tribunal entitled to find that time spent by the claimants working for Uber was not limited (as Uber argued) to periods when they were actually driving passengers to their destinations, but included any period when driver logged into Uber app within territory in which the driver was licensed to operate and was ready and willing to accept trips – Appeal dismissed.

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