New Zealand Law Society - Supreme Court roundup January - 24 February 2022

Supreme Court roundup January - 24 February 2022

Supreme Court roundup January - 24 February 2022

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

New Zealand Supreme Court

Social worker, conduct, complaint, jurisdiction

Mangalassery v Social Workers Registration Board [2022] NZSC 5 (16 February 2022)

Unsuccessful leave application – Self-represented M a registered social worker - Complaint made against him led to appointment of professional conduct committee (Committee) by Kāhui Whakamana Tauwhiro Social Workers Registration Board (Board) to investigate complaint - Committee said M did not breach his ethical obligations or Code of Conduct - Committee said M should receive mentoring and/or counselling to develop his social work practice because of other concerns with actions –

M appealed Board decision to DC – DC said Board should have referred complaint back to Committee for further consideration – M appealed to HC, saying DC wrong to refer matter back to Committee - Appeal dismissed – HC said Committee had jurisdiction to make  recommendation under s 71(1)(b)(v) of Social Workers Registration Act 2003 (SWR Act) even in circumstances where it said no basis to complaint – CA declined M’s application for leave to appeal - Said not clear whether it had jurisdiction to hear appeal - In any event, said matter case specific and did not raise any issues of general importance – CA said proposed appeal doomed to fail given breadth of Committee’s powers under SWR Act –

SC said did not need to deal with jurisdiction issue because leave application could not succeed - No exceptional circumstances justifying SC granting leave to appeal directly against HC decision - Further, no question of general or public importance that would satisfy leave criteria - Also no risk of substantial miscarriage of justice – Application dismissed.

Leapfrog appeal, exceptional circumstances test

Millar v R [2022] NZSC 6 (17 February 2022)

Unsuccessful leave application – M tried in August 2014 on charges alleging sexual offending against single complainant - Sentenced to two years eight months’ imprisonment - Almost six years later, lodged a notice of appeal in CA and sought time extension to do so - Case determined under Crimes Act 1961, in particular, s 388(2), which conferred power to extend time for appeal and s 385(1) which provided criteria for determining appeals against conviction – CA refused time extension application in judgment delivered on 20 October 2021 – M sought leave to appeal against that judgment or, in the alternative, leave to appeal (along with the necessary time extension) against  DC conviction  –

SC said no jurisdiction to entertain appeal from CA judgment, as was apparent from several SC judgments - Dismissing time extension application CA naturally had regard to s 385(1) criteria - Contrary to submissions for M, did not mean CA judgment should be treated as dismissing an appeal – SC had jurisdiction to grant leave for leapfrog appeal against conviction, but subject to Court being satisfied were exceptional circumstances which warranted direct appeal - Would also require time extension –

M's explanations for delay (such as no legal representation, difficulties in communicating with lawyer assigned to assist him at trial, alleged errors in what lawyer told him, practical impediments associated with imprisonment and generally being at low ebb) provided at most justification for limited delay – Not adequate to explain delay that occurred – Also CA view – CA addressed appeal merits as part of considering time extension application –

As CA concluded, substantial scope argument regarding errors on part of counsel assigned to assist M, but inherent significance of errors limited – SC saw CA approach to trial fairness and corresponding absence of risk of miscarriage of justice as convincing –

SC said nothing advanced to suggest exceptional circumstances test satisfied - Further, extraordinary delay in challenging the conviction not acceptably explained – Application dismissed.

Self-represented litigant, oral hearing, amicus curiae appointment, judgment recall

S v R [2022] NZSC 7 (17 February 2022)

Unsuccessful applications for oral hearing, appointment of amicus curiae and judgment recall – Self-represented S applied for leave to appeal against CA decision – CA dismissed S’s appeal against conviction for sexual offending against his stepdaughter aged between nine and 14 at time of offending - S’s second leave application - Previous application dismissed in 2017 - SC treated this application as for recall of 2017 judgment –

General rule that judgment, once delivered, stood for better or worse, subject to appeal - Decision to recall judgment only made in exceptional circumstances - Recall application not to relitigate  reasons provided in leave judgment - Not means of collateral attack on decision – Recall appropriate where some procedural or substantive error occurred that would result in miscarriage of justice – S raised various grounds he said amounted to miscarriage – Sought leave to file reply submissions - Also sought oral hearing and for an amicus curiae to be appointed –

SC said hearing oral submissions would not assist – Had considered all S’s written submissions – Not necessary to appoint counsel as amicus curiae, particularly given this was S’s second leave application - Application did not meet high recall threshold – Applications dismissed.

Self-represented litigant, judgment recall

Siemer v Auckland High Court and anor [2022] NZSC 8 (17 February 2022)

Unsuccessful recall application – Self-represented S  applied for recall of SC judgment of 6 December 2021 dismissing leave application - Nothing advanced to support warranted judgment recall of  – Application dismissed.

Employment, appeal out of time direct to SC

Snowdon v Radio New Zealand [2022] NZSC 9 (22 February 2022)

Unsuccessful leave application - Between 2004 and 2009, S brought a number of claims against Radio New Zealand Ltd (RNZ) for unjustified disadvantage, unjustified dismissal and fraud relating to discovery process - All claims consolidated and heard in Employment Court in 2013 and 2014 - All were dismissed (the substantive decision) - Court awarded RNZ $490,000 costs (costs decision) –

S applied to SC for (a) leave to appeal out of time against both substantive and costs decisions and to appeal directly to SC; (b) leave to adduce new evidence: being documents obtained in August 2020 from Irirangi Te Motu | NZ On Air (a Crown entity that funded public media) under the Official Information Act 1982 (OIA); and (c) a stay of execution of costs decision –

S said leave application out of time because it took six years to perform forensic audit of RNZ’s documents and OIA request could not be made until certain senior staff left NZ On Air in 2020 because, according to S, they would have opposed her request –

SC said no adequate reasons had been provided to justify delay in filing application – Particularly, no proper reason for why OIA request could not have been made earlier - Time taken to conduct  forensic audit could not excuse delay as new evidence sought to be adduced did not result from audit –

SC said no exceptional circumstances justifying application for leave to appeal directly to SC - Further, matters S sought to raise issues of fact and related to particular circumstances - Appeals to SC from Employment Court on questions of law only - Application for time extension dismissed - In light of this, applications to adduce new evidence for stay also dismissed – Applications dismissed.

Practice sale, arbitrator decisions, natural justice

Alusi Ltd and ors v G J Lawrence Dental and ors [2022] NZSC 10 (22 February 2022)

Unsuccessful leave application - Three separate dental practices (owned by Alusi Ltd, G J Lawrence Dental Ltd and Creative Dentistry Ltd) shared premises and operating expenses (Dental Centre) - I controlled Alusi, L controlled Lawrence Dental and A controlled Creative - Dental Centre managed through a fourth company, Openyd Ltd, in which three dental practice owning companies had equal interests - Deed of Association provided for rights of pre-emption should one of the dentists wish to sell their business and Openyd  Constitution also provided for rights of pre-emption regarding Openyd share sales –

In 2016, L indicated intention to retire and sell practice - Start of prolonged dispute between parties which, as far as SC could see, no longer involved Creative but continued between Alusi and Lawrence Dental –

Various issues referred to arbitration - Alusi sought leave to appeal arbitrator’s award to HC on, what it claimed, were questions of law – HC declined application - Also declined application for leave to appeal against decision to CA - CA declined special leave to appeal (first CA judgment) –

Separately, Alusi applied to HC to set aside part of award on ground that arbitrator finding that e-mail agreement cancelled breached rules of natural justice – HC declined application at same time it dismissed application for leave to appeal against first judgment - Appeal to CA against judgment on natural justice issue dismissed (second CA judgment) –

Alusi sought leave to appeal against second CA judgment - Submissions alleged breach of rules of natural justice primarily by challenging the legal substance of arbitrator’s conclusion that e-mail agreement had been cancelled – SC said largely a re-run of argument already rejected in HC – SC said basis for application revisited issues that were resolved conclusively in HC and CA decisions – Applications dismissed.

Judgment recall, stay, very special reason

Austin v Roche Products Ltd [2022] NZSC 11 (22 February 2022)

Successful application for judgment recall – A applied to recall SC judgment of 16 June 2021 which stayed earlier dismissal of his appeal - Stay to allow him to seek a review out of time of the Accident Compensation Corporation’s decision that injury covered under Accident Compensation Act 2001 - He promptly applied for review – ACC dismissed application - Appeal to Accident Compensation Appeal Authority filed – Although A diligently pursued chosen course, neglected to obtain an extension of SC stay before it lapsed - Application for recall to belatedly extend stay so collateral appeal could be pursued before the Authority -

SC said where for a very special reason justice required judgment recall, Court could make an order - Given A pursued his remedies diligently and failure to extend stay would defeat claim, SC satisfied appropriate to recall judgment and to amend terms – SC decision stayed until further Court order.

High Court of Australia

Corporations Act, examination summons, abuse of process

Walton and anor v ACN 004 410 833 Limited (Formerly Arrium Limited) (In Liquidation) & ors [2022] HCA 3 (16 February 2022)

Successful appeal from NSW CA – W and others (W) were shareholders of what had been Arrium Limited (A) - In October 2014, A completed capital raising, having published its 2014 financial results and provided shareholders with Information Memorandum - In January 2015, A announced suspension or closure of one of its principal mining operations - In April 2016, A placed into administration and, in June 2019, liquidators were appointed –

W having been authorised by the Australian Securities and Investments Commission to do so, applied to NSW SC for order under s 596A Corporations Act 2001 (Cth) that summons issue for  examination of former A director - Registrar in Equity made order – M’s purpose to investigate and pursue potential personal claims arising from 2014 capital raising in their capacity as shareholders against A’s former directors and auditors - Accepted that any future proceedings would be confined to limited class of A shareholders - A applied SC order to be stayed or set aside as abuse of process – SC  declined to stay or set aside order - CA allowed A's appeal and said examination sought predominantly for purpose of pursuing private litigation against third parties, and not for purposes of conferring demonstrable or commercial benefit on corporation or its creditors, an abuse of process –

HC majority allowed W’s appeal – When deciding if use of court process authorised by statute was  abuse of process, question whether litigant's predominant purpose inconsistent with scope and purpose of statutory process - Purpose and concern of s 596A not confined to interests of  corporation, its creditors, or its contributories, or to bringing of criminal or regulatory proceedings connected with corporation’s affairs - Examining corporation officer for purpose of pursuing claim against corporation in external administration or one of its officers or advisers for enforcing the law could be legitimate use of  s 596A power, irrespective of whether in corporation’s interests or whether claim related to all or only some of corporation's creditors or contributories - Summons therefore not issued for purpose that was abuse of process – Appeal allowed.

Judicial Committee of the Privy Council

Judicial review, process, unfairness

Public Service Commission v Richards [2022] UKPC 1 (31 January 2022)

Unsuccessful appeal from Trinidad and Tobago CA – R prison officer regulated by PSC - Reported that in March 2016 had secured firearm, holster, and magazines (equipment) in locked safe at home before leaving for night - When he returned next day, discovered safe and contents missing - Reported theft to police.

Investigation into R’s conduct commenced, under PSC Regs, to consider allegations he had failed to: (a) adequately secure; and (b) account for, equipment - R made representations himself and via his attorney - In August 2016, PSC considered allegations (absent R’s representations) and decided to suspend R from duty -

R brought HC proceedings, seeking judicial review of PSC decision - In November 2017, HC said, amongst other things, unfair of PSC not to have taken account of R’s representations prior to suspending him - HC quashed decision - PSC appealed - Before appeal heard, PSC notified R it would not be proceeding with any charges and lifted his suspension - In 2019, CA allowed PSC appeal –

R sought to appeal to PC – Issues were 1) whether PSC decision to suspend R unfair; (2) Whether duty on PSC to hear from R or consider R’s representations before suspending him; and (3) Whether HC entitled to enquire into criteria and basis for PSC decision –

PC said in Trinidad and Tobago, presumption that power conferred by legislation to be exercised fairly reinforced by section 20 Judicial Review Act 2000 -

In circumstances, PC said no unfairness to R involved in PSC suspending him on full pay in exercise of its powers without first giving him a hearing or inviting him to make representations -Not case where there was right to hearing before decision taken and clear that element of unlawfulness present had no impact on decision - Relief refused and decision not quashed – Appeal dismissed.

United Kingdom Supreme Court

Extradition, process, acts of legal representative, surrogacy principle

Public Prosecutors Office of the Athens Court of Appeal v O’Connor [2022] UKSC 4 (2 February 2022)

Unsuccessful appeal from Northern Ireland Divisional Court - On 11 December 2015, Judge ordered O’s extradition to Greece for purposes of conducting criminal prosecution against him - On that day, O’s solicitor stated orally in court that appeal would be lodged against extradition order, and on 16 December 2015, notice of application for leave to appeal was filed with Court - However, due to an oversight, solicitor failed to serve the notice on Crown Solicitor’s Office (on behalf of Greece) until about three weeks later -

Section 26(5) Extradition Act 2003 provided that where person gave notice of application for leave to appeal against extradition order after end of permitted period (seven days from the date of relevant order), HC must not for that reason refuse to entertain application if person did "everything reasonably possible to ensure that the notice was given as soon as it could be given" -

Divisional Court in England and Wales in another case indicated correct interpretation of section 26(5) permitted no distinction between conduct of person and conduct of their legal representative, so legal representative’s conduct to be attributed to person with  consequence that if legal representative had not done everything reasonably possible to ensure that notice given as soon as could be given, HC should not entertain application for leave to appeal – Northern Ireland Divisional Court disagreed with England and Wales Divisional Court interpretation - Said was not necessary to hold person responsible for any failings on part of legal representatives - Northern Ireland Divisional Court decided to entertain O’s leave application, notwithstanding it being out of time – Public Prosecutor appealed decision -

SC said key question whether section 26(5) should be interpreted to allow or exclude distinction between actions of person and their legal representative –

SC dismissed appeal – Said Section 26(1) identified "person" as being person subject to an extradition order - In section 26(5), the word "person" appeared twice - On both occurrences, "person" meant person subject to an extradition order, as set out in section 26(1) -  Regarding second occurrence, requirement of doing everything reasonably possible imposed by provision language only on "the person" - No evident reason to understand it as also being imposed on  individual’s agent or legal representative -

Interpretation supported by considering vice Parliament sought to address when inserting section 26(5) into Act 2003 - Vice was potential for substantial injustice caused by applying short and rigid time limits for those seeking to appeal against extradition orders, whether or not such persons had legal representation -

Surrogacy principle involved imputing fault of a client’s legal representative to client - However, surrogacy principle not universal - Surrogacy principle did not require interpretation of section 26(5) consistent with England and Wales Divisional Court view -

SC agreed with Northern Ireland Divisional Court, saying procedural unfairness of attributing legal representative’s fault to client might not be remedied in practice, because even if open to client to sue legal representative in negligence, right of little assistance where client extradited to place where at risk of inhuman and degrading treatment – Appeal dismissed.

Privacy, misuse of private information criminal investigation

Bloomberg LP v ZXC [2022] UKSC 5 (16 February 2022)

Unsuccessful appeal from CA - ZXC a US citizen who worked for company which operated overseas - He and his employer were subject of criminal investigation by UK Legal Enforcement Body (UKLEB) - During investigation, UKLEB sent confidential Letter of Request (Letter) to authorities of a foreign state seeking, among other things, information and documents relating to ZXC - Letter expressly requested that its existence and contents remain confidential.

Bloomberg, a media company, obtained copy of Letter - Published article reporting information had been requested in respect of ZXC and detailing matters of which he was being investigated - After Bloomberg refused to remove article from its website, and following an unsuccessful interim injunction application, ZXC brought successful claim against Bloomberg for misuse of private information -

ZXC claimed he had a reasonable expectation of privacy regarding: (1) fact that UKLEB requested information relating to him in the context of its investigations, and (2) details of matters UKLEB was investigating in relation to him - First instance judge said Bloomberg published private information in principle protected by article 8 of European Convention on Human Rights (ECHR); and that in balancing ZXC’s rights against those of Bloomberg under article 10 ECHR, balance favoured ZXC – CA dismissed Bloomberg’s appeal - Bloomberg appealed to SC –

SC unanimously dismissed appeal - Said, in general, person under criminal investigation had, prior to being charged, reasonable expectation of privacy in respect of information relating to investigation –

Well established, and common ground, misuse of private information distinct tort where liability determined by applying two-stage test - Stage one whether claimant objectively had reasonable expectation of privacy in relevant information considering all circumstances of case - Such circumstances likely to include, but not limited to, those identified in 2008 CA decision, so-called "Murray factors" - Stage two whether expectation outweighed by publisher’s right to freedom of expression - Involved balancing exercise between claimant’s article 8 ECHR right to privacy and the publisher’s article 10 ECHR right to freedom of expression, having due regard to section 12 Human Rights Act 1998  -

SC said widely accepted as a matter of public policy that there was negative effect on an innocent person’s reputation from publishing that he or she was being investigated by police or another state organisation - Uniform state investigatory body general practice not to identify those under investigation prior to charge - Also, several first instance judgments accepted private nature of such information based on potential that publication would ordinarily cause substantial damage to person’s reputation, and other damage -

Bloomberg advanced four arguments challenging general rule or legitimate starting point regarding this category of information, all of which SC rejected – SC said courts below correct to hold that, as legitimate starting point, person under criminal investigation had, prior to being charged, reasonable expectation of privacy regarding information relating to investigation and in all the circumstances here was case where expectation applied –

Issue 2 whether CA wrong to say, in case where a breach of confidence claim not pursued, that Bloomberg published information originating from confidential law enforcement document rendered the information private and/or undermined Bloomberg’s ability to rely on public interest - SC said Judge right to treat Letter’s confidentiality as relevant and important factor at both stage one and stage two but neither the judge nor CA said Letter’s confidentiality itself rendered information private or prevented Bloomberg from relying on public interest  - Whilst there was no necessary overlap between distinct actions for misuse of private information and for breach of confidence, confidentiality and privacy would often overlap, and if information was confidential was likely to support reasonableness of an expectation of privacy – Appeal dismissed.

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