New Zealand Law Society - Supreme Court roundup January - 17 February 2022

Supreme Court roundup January - 17 February 2022

Supreme Court roundup January - 17 February 2022

Decisions, proceedings and news from the highest courts in some common law jurisdictions in January and February.

New Zealand Supreme Court

Self-represented litigant, bankruptcy, notice of

Paterson v Attorney-General [2022] NZSC 2 (10 February 2022)

Unsuccessful leave application – Self-represented P had a disputed with other parties regarding a land subdivision in Hawkes Bay – He was adjudicated bankrupt on 5 April 2016 for unpaid costs on application party associated with dispute – P did not appear at 5 April 2016 hearing although he had received formal notice of hearing - Fixture not published online on daily list on Courts of New Zealand website - Relying on omission, P filed proceedings against Attorney-General claiming omitting fixture from daily list breached his right to natural justice under s 27(1) New Zealand Bill of Rights Act 1990; was a negligent misstatement of fact; and breached duty of care owed to him - Claim dismissed – HC said, amongst other things, P had been afforded right to notice when he was formally served with relevant documents - Had also been given opportunity to be heard - P appealed from that decision to CA - Appeal deemed abandoned because not pursued in time - P sought time extension –

Dismissing application, CA said if appeal genuinely arguable, Court would have granted time extension as delay not substantial and no prejudice to Attorney-General - But Court declined application because appeal “manifestly hopeless” - Said proceeding abuse of process as “a collateral attack on the order adjudicating him bankrupt” which P had twice failed to have annulled - Court also said HC decision “plainly correct” –

SC not satisfied leave criteria met - Proposed appeal would not challenge principles regarding applications under r 43(2) Court of Appeal (Civil) Rules - Rather would involve applying principles to particular facts - No questions of general or public importance or of general commercial significance arose - SC accepted Attorney-General’s submissions that underlying proceedings and  present application in effect seek to challenge HC 5 April 2016 decision - Not necessary in interests of justice to allow him to pursue matter – Finally nothing P raised called CA assessment into question - Application dismissed.

Self-represented litigant, abuse of process, abandonment of CA appeal

Dunstan v Attorney-General [2022] NZSC 3 (14 February 2022)

Unsuccessful leave application – Self-represented D filed in HC - Statement of claim sought judgment for damages in tort against Attorney-General and Family Court Judge – HC Registrar referred proceeding to Judge under r 5.35A High Court Rules 2016, which permitted Registrar to refer proceeding to Judge where cause for concern that proceeding amounted to abuse of Court’s process - Judge ruled proceeding an abuse of process and struck it out – D filed notice of appeal in CA but did not pay security for costs and attend to other procedural matters within 3 months – Deputy registrar issued notice regarding 3 months and that appeal deemed abandoned –

D filed application for leave to bring civil appeal to SC - When she presented application, SC Deputy Registrar said SC did not have jurisdiction to deal with her application because there was no lower court judgment against which appeal could be commenced – D requested review of Deputy Registrar’s decision - Registrar decided to accept notice of application for leave to appeal for filing and refer it to panel for decision –

SC panel said under s 68 of Senior Courts Act 2016, SC had jurisdiction to hear and determine  appeal by party to CA civil proceeding against decision made in proceeding (unless certain exceptions applied) – Here no decision made in proceeding: abandonment of D’s CA appeal occurred by operation of r 43(1) Court of Appeal (Civil) Rules, not because of judicial officer’s decision – SC did not have jurisdiction to hear or determine appeal and could not grant leave to appeal - As Deputy Registrar pointed out, D should have applied to CA if she wished to revive her appeal to that Court – Leave application dismissed.

Self-represented litigant, judicial review, security for costs

Roe v University of Waikato [2022] NZSC 4 (14 February 2022)

Unsuccessful leave application – Self-represented R applied to HC for judicial review of university decisions regarding her enrolment for Master of Philosophy degree and  examination of her thesis - Application for review failed in HC – HC awarded costs against her – R appealed to CA against both substantive judicial review judgment and costs award  – CA Judge directed appeals be heard together and only one payment of security for costs required – R applied for dispensation from requirement to pay security under r 35(6)(c) Court of Appeal (Civil) Rules 2005 – CA Deputy Registrar declined application – R sought review of decision by CA Judge – In judgment delivered on 18 November 2021, Judge dismissed application for review and directed R to pay security for costs of $7,060 –

R sought leave to appeal against CA Judge’s decision – SC said Judge applied principles relating to dispensation from security for costs SC previously set out – CA Judge had said Deputy Registrar correct to find R’s proposed appeal to CA did not qualify as genuine public interest litigation - Also no evidence to conclude she was impecunious – SC agreed with CA Judge that case involved issues personal to R  and, contrary to her submission, did not see broader public interest issues engaged  - Application dismissed.

High Court of Australia

Employment law, contractor or employee

Construction, Forestry, Maritime, Mining and Energy Union & Anor V Personnel Contracting Pty Ltd [2022] HCA 1 (9 February 2022)

Successful appeal from FCA Full Court – McC, 22-year-old British backpacker with limited work experience, travelled to Australia on working holiday visa - Sought work from P, labour-hire company (trading as C) - Offered role and signed Administrative Services Agreement (ASA) with C - ASA described McC as  "self-employed contractor" - C assigned McC to work on two construction sites run by C’s client, H - McC performed basic labouring tasks under supervision and direction of supervisors H employed - Labour Hire Agreement governed relationship between C and H - No contract between McC and H –

A union and McC commenced proceedings against C in FCA seeking compensation and penalties under Fair Work Act 2009 (Cth) (Act) - Crucial issue whether McC was an C’s employee for Act purposes - Primary judge said McC an independent contractor - Full Court dismissed appeal - Both courts applied "multifactorial" approach, referring to ASA terms and work practices C and H imposed –

They appealed to HC – HC majority said McC was C's employee – Said where parties  comprehensively committed relationship terms to written contract, efficacy of which not challenged on basis that it was a sham or was otherwise ineffective under general law or statute, characterisation of that relationship as one of employment or otherwise had to proceed by reference to the rights and obligations of parties under that contract - Rights and obligations to be ascertained according to established principles of contractual interpretation - Absent a suggestion that contract had been varied, or that there had been conduct giving rise to an estoppel or waiver, a wide-ranging review of parties' subsequent conduct not necessary and inappropriate –

Under ASA, C had right to determine for whom McC would work, and McC promised C he would co-operate in all respects in supply of his labour to H - In return, McC entitled to be paid by C for work he performed - Right of control, and ability to supply compliant workforce, was key asset of C's business as a labour-hire agency - Rights and obligations constituted relationship between C and McC of employer and employee - That parties chose label "contractor" to describe McC did not change relationship character – Appeal allowed. 

Employment law, contractor or employee

ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors [2022] HCA 2

Successful appeal from FCA Full Court - Between 1977 and 2017, a company (company) engaged J and W as truck drivers – Initially company employees and drove company trucks - In 1985 or 1986, company offered them opportunity to "become contractors" and purchase their own trucks - They agreed to new arrangement and set up partnerships with their respective wives - Each partnership executed written contracts with company to provide delivery services, purchased trucks from company, paid truck maintenance and operational costs, invoiced company for its delivery services, and company paid for those services - Income from the work performed for company declared as partnership income for income tax purposes and split between each “contractor” and his wife –

J and W commenced proceedings in FCA seeking declarations regarding entitlements they said were owed to them under Fair Work Act 2009 (Cth), Superannuation Guarantee (Administration) Act 1992 (Cth) and Long Service Leave Act 1955 (NSW) – Claimed to be owed entitlements as were company employees - Primary judge said they were not employees, and instead were independent contractors – Full Court overturned that decision - Said, having regard to relationship "substance and reality" they were employees – Company appealed to HC –

HC unanimously said they were not company employees – HC majority said consistently with the approach in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (noted above) characterisation of relationship as one of employment or otherwise had to proceed by referring to rights and obligations of parties under the contract - After 1985 or 1986, contracting parties were partnerships and company - Contracts between partnerships and company involved partnerships providing both use of trucks partnerships owned and the services of driver to drive those trucks - Context in which first contract entered into involved company's refusal to continue to employ the drivers and company's insistence that only relationship between drivers and company was contract for carriage of goods - Relationship was not employment relationship – Appeal allowed.

United Kingdom Supreme Court

Terrorism Act 2000, strict liability, mens rea rebutted, European Convention

Pwr v Director of Public Prosecutions [2022] UKSC 2 (26 January 2022)

Unsuccessful appeal from CA – P and others in a demonstration against perceived actions of the Turkish state in north-eastern Syria - Each carried a flag of the Kurdistan Workers Party (PKK), an organisation proscribed under Terrorism Act 2000 (2000 Act) - Section 13(1) of 2000 Act 2000 provided it was a criminal offence for a person in a public place to carry or display an article "in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation" - Each was convicted in Westminster Magistrates’ Court of a section 13(1) offence - Crown Court dismissed their appeals, saying section 13(1) created an offence of strict liability meaning offence did not require person to have any knowledge of import of article that he or she was wearing, carrying or displaying, or of its capacity to arouse reasonable suspicion he or she was member or supporter of proscribed organisation - Crown Court also said section 13(1) not incompatible with the right to freedom of expression under article 10 of the European Convention on Human Rights (Convention) –

They appealed to SC - Two issues arose on appeal. First, whether section 13(1) created a strict liability offence; Second, if it did, whether it was incompatible with Convention article 10 – SC unanimously dismissed appeal – Said 13(1) a strict liability offence - Limited mental element required under section 13(1) - Defendant must know that he or she wearing or carrying or displaying relevant article - No extra mental element required over and above this -

Strong presumption that criminal offences required mens rea - Here presumption rebutted by necessary implication - First, words arousing "reasonable suspicion" imposed objective standard and indicated no mens rea requirement - Second, to interpret section 13(1) as requiring mens rea would render incoherent what could otherwise be viewed as a calibrated and rational scheme of proscribed organisation offences in 2000 Act - Third, strict liability interpretation of the offence in section 13(1) supported by purpose (or mischief or policy) behind the offence, concerned with  effect on other people rather than intention or knowledge of defendant –

Section 13(1) offence compatible with article 10 - Section 13 an interference for article 10(1) purposes - However, interference justified - First, restriction prescribed by law, in that section 13(1) expressed in clear terms which provided legal certainty - Second, restriction pursued legitimate aims, because necessary in interests of national security, public safety, prevention of disorder and crime and protection of others’ rights - Third, restriction necessary in a democratic society and proportionate to legitimate aims pursued - Even taking into account European Court of Human Rights’ (ECtHR) jurisprudence that, under article 10, necessity not to be lightly found, section 13 struck fair balance between right to freedom of expression and need to protect society by preventing terrorism - In particular, offence circumscribed by requirement for reasonable suspicion and sanctions comparatively minor - SC rejected submission that ECtHR considered expressive acts could only be criminalised where expression includes an incitement to violence – Appeal dismissed. 

Legislation, subordinate legislation, statutory interpretation, fee setting

R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department [2022] UKSC 3 (2 February 2022)

Unsuccessful appeal from CA - First claimant, O, born in the United Kingdom in July 2007, attended school and had never left the UK - Had Nigerian citizenship, but from her tenth birthday, satisfied  requirements to apply for registration as British citizen under section 1(4) British Nationality Act 1981 (1981 Act) - O applied to be registered as British citizen on 15 December 2017 but was unable to afford the full amount of fee, £973 at that time - Not disputed many children and their families could not afford fee charged where applicant a child - Because full fee not paid, Secretary of State (Secretary) refused to process O’s application - O joined in her challenge by The Project for the Registration of Children as British Citizens -

- Immigration Act 2014 (2014 Act) empowered Secretary to set fees for applications to obtain British citizenship in subordinate legislation, having regard only to matters listed in section 68(9) of 2014 Act - Matters included not only cost of processing application but also benefits likely to accrue from obtaining British citizenship and costs of exercising other functions relating to immigration and nationality – Fee level produced substantial surplus, over administrative cost of processing an application to be applied, to subsidise other parts of the immigration and nationality system -

- O challenged registration fee level, saying Secretary did not have power to set the fee at level which rendered nugatory underlying statutory right to become British citizen 1981 Act conferred – Key question whether subordinate legislation ultra vires because it set fee at which child or young person could apply to be registered as British citizen at level which many young applicants found to be unaffordable –

SC unanimously dismissed appeal – Said issue on appeal one of statutory interpretation: whether Parliament authorised in primary legislation subordinate legislation to impose challenged fee – Explained interpretation rules – Said  appeal not concerned with fundamental or constitutional common law rights, nor were any Convention rights under Human Rights Act 1998 engaged  - Special construction rules that applied when legality principle infringed or constitutional right of access to the courts intruded upon did not apply –

SC said in 2014 Act, Parliament authorised subordinate legislation Secretary used to set application fee - Appropriateness of imposing fee on children policy question for political determination, not for court - Appeal dismissed.

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