New Zealand Law Society - Supreme Court roundup 4 March - 10 March 2022

Supreme Court roundup 4 March - 10 March 2022

Supreme Court roundup 4 March - 10 March 2022

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

New Zealand Supreme Court

Employment, public sector contractors, Inland Revenue

Head and ors v Chief Executive, Inland Revenue Department and anor [2022] NZSC 15 (2 March 2022)

Unsuccessful leave application – Case concerned arrangements under which Madison Recruitment Ltd (Madison) provided Commissioner of Inland Revenue with Madison employees’ labour – Worked predominantly in IRD call centres – Said they were in fact Commissioner’s employees – Employment Court rejected contention and CA dismissed application for leave to appeal against judgment – Case had to be decided under legislative framework as it was before Employment Relations (Triangular Employment) Amendment Act 2019 –

No right of appeal to CA against CA decision refusing leave to appeal – Employees applied for leave to bring leapfrog appeal against Employment Court judgment – Appeal would be restricted to issues of law under s 214A(1) Employment Relations Act 2000 – Also, because of s 75(b) Senior Courts Act 2016, SC could not grant leave unless satisfied there were “exceptional circumstances that justify taking the proposed appeal directly to” SC – SC has been reluctant to take appeals direct from Employment Court where CA refused leave –

Primary legal issue employees raised related to interpretation and application of s 41 State Sector Act 1988 (now replaced by similarly worded cl 2 of sch 6 Public Service Act 2020) – Permitted delegation by public service chief executives of functions and powers to, amongst others, “an individual working in the Public Service as a contractor” –

SC said although there may be some legal aspects to issues, which in theory might be challenged on appeal, conclusion sufficiently factual as to leave little scope to succeed on appeal confined to questions of law – Proposed appeal did raise issues of general or public importance to warrant granting leave – No appearance of miscarriage of justice – Exceptional circumstances test for leapfrog appeal also not met – Application dismissed.

Human trafficking, slavery

Matamata v R [2022] NZSC 16 (3 March 2022)

Unsuccessful leave application – M found guilty after HC jury trial on 10 charges of human trafficking and 13 charges of dealing in slaves, affecting 13 different complainants between 1994 and 2019 – Sentenced to 11 years’ imprisonment – Appealed against conviction to CA – Solicitor-General appealed against sentence imposed – CA dismissed appeal against conviction and allowed appeal against sentence only to extent of imposing five-year MPI –

M sought leave to appeal SC against conviction – Said CA erred in two respects: (a) conclusion that jury properly directed on elements of human trafficking in terms of s 98D(1) Crimes Act 1961; and (b) construction of legal definition of “slave” for purposes of s 98  Crimes Act –

Regarding (a) SC said no risk of miscarriage of justice here – Nor was point matter of general or public importance, given old s 98D applied only to pre-2015 offending and given SC conclusion that no substantial difference between old and new s 98D – Re (b) SC saw no error in trial Judge’s direction or CA decision – Not necessary in interests of justice to give leave – Application dismissed.

Drugs, definition of “import”, sentence

Fakaosilea  v R [2022] NZSC 17 (4 March 2022)

Partially successful leave application – F charged, along with three others, on one charge of importing a class A drug (methamphetamine) and one charge of participating in organised criminal group – Convicted on both charges after HC jury trial – Appealed to CA against conviction and sentence – CA dismissed appeal against conviction, but allowed her appeal (in part) against sentence – Sought leave to appeal to SC against conviction and sentence – Application out of time but Crown took no issue with extension being granted –

Point F wished to advance on appeal if leave given turned on interpretation of “import” in s 6(1)(a) Misuse of Drugs Act 1975 –

Drugs (over 500 kgs of methamphetamine) transported to New Zealand in “mother ship”, which anchored off Northland coast, inside New Zealand’s territorial waters – Arrangements made to retrieve drugs from mother ship, but considerable delay between mother ship arrival and retrieval operation – F wanted to argue her involvement in importation began after mother ship arrived in New Zealand’s territorial waters but before retrieval operation – Said importation of drugs concluded once mother ship arrived at agreed retrieval point in New Zealand’s territorial waters – Said meant she could not have been a party to importation because it happened before she became involved –

Said matter of general or public importance arose, given  lack of definition of “import” in Misuse of Drugs Act - Contrasted with Customs Act 1966, which contained statutory definition of “import” – Also said CA interpretation of “import” may have occasioned miscarriage of justice –

SC said not in interests of justice to grant leave on this point – Not appropriate case to consider “import” – No prospect of miscarriage here –

Regarding sentencing, SC said CA reassessed F’s sentencing in light of CA decision after HC case – SC said it had drug case reserved decision that might affect F’s sentence – Reserved leave for her to re-apply to appeal against sentence – Application dismissed with reservation regarding sentence.

Proceeds of crime, time extension

Snowden v Commissioner of Police [2020] NZSC 18 (8 March 2022)

Unsuccessful leave application – S applied for extension of time for leave to appeal – Sought to appeal against CA dismissing his appeal against HC judgment and allowing Commissioner of Police (Commissioner) cross-appeal – Judgments related to civil forfeiture orders under Criminal Proceeds (Recovery) Act 2009 (CPRA) – Leave application some 3 months out of time – Commissioner opposed time extension –

SC said S had not sufficiently explained delay – In any event, points he wished to argue were thoroughly examined in Courts below and largely related to circumstances here – Did not raise issues of general or public importance – Nothing S raised suggested risk that Courts below may have been wrong, therefore no risk of a miscarriage of justice – Application dismissed.

High Court of Australia

Patent, rights infringement, misleading or deceptive conduct

Lundbeck A/S and anor v Sandoz Pty Ltd [2022] HCA 4 (9 March 2022)

Partially successful appeal from Full Court FCA - Two related appeals from single justice decision concerning extension under Patents Act 1990 (Cth) (Act) of term of patent relating to  pharmaceutical substance escitalopram (Patent) - Court unanimously allowed one appeal (Lundbeck appeal) primarily on basis that Full Court misconstrued effect of settlement clause between parties - Court unanimously dismissed other appeal (Pharma appeal) saying Full Court correct to say S had not engaged in misleading or deceptive conduct –

Appellants in Lundbeck appeal were H Lundbeck A/S (Lundbeck Denmark), Danish pharmaceutical company, and its Australian subsidiary (Lundbeck Australia) - Lundbeck Denmark owned Patent - Lundbeck Australia held exclusive patent licence - Appellant in Pharma appeal, CNS Pharma Pty Ltd (Pharma), subsidiary of Lundbeck Australia, which sold generic product containing escitalopram in Australia - Respondent in both appeals, Sandoz Pty Ltd (Sandoz), supplied generic pharmaceutical products –

When Patent due to expire in June 2009 Lundbeck Denmark applied under Act to extend term until December 2012 - Extension subsequently granted in 2014 - During extended term Sandoz sold generic escitalopram product - In 2014 Lundbeck Denmark and Lundbeck Australia commenced proceedings against Sandoz claiming Sandoz infringed Patent by selling escitalopram during extended term - Pharma also commenced proceedings against Sandoz claiming Sandoz engaged in misleading or deceptive conduct during extended term by failing to warn its customers their supply of generic escitalopram might infringe Patent - Primary judge ruled against Sandoz in both proceedings - Full Court allowed appeals, saying none of Sandoz's sales amounted to acts of infringement as Sandoz held non-exclusive licence to exploit Patent through operation of  settlement clause in agreement Sandoz had entered into with Lundbeck Denmark and Lundbeck Australia in 2007 –

In Lundbeck appeal, HC said Full Court erred in how it construed settlement clause - Properly construed, settlement clause gave permission to Sandoz to sell escitalopram products for two week period before expiry of Patent's original term - Section 79 Act operated to confer substantive and exhaustive rights only on Lundbeck Denmark as patentee to start proceedings against people who  infringed exclusive right to exploit Patent during extended term - Further, Lundbeck Denmark's cause of action under s 79 only accrued on grant of Patent extension in 2014 –

In Pharma appeal, HC said Sandoz's conduct did not amount to misleading or deceptive conduct as the evidence did not establish Sandoz customers had requisite reasonable expectation they might be exposed to patent infringement proceedings for supplying Sandoz's escitalopram products –

Lundbeck appeal allowed, Pharma appeal dismissed. 

Judicial Committee of the Privy Council

Fisheries management, consultation, traditional leaders, constitutiton

Framheim v Attorney-General of the Cook Islands [2022] UKPC 4 (28 February 2022)

Unsuccessful appeal, successful cross-appeal from Cook Islands CA – Through three related measures – Marine Resources (Purse Seine Fishery) Regulations 2013 (Regulations), Skipjack Tuna Purse Seine Fishery Plan (Fishery Plan), and EU-Cook Islands Sustainable Partnership Agreement and Implementation Protocol (Partnership Agreement) – Cook Islands Government permitted, on extended basis, commercial tuna fishing using purse seine method in Cook Islands waters –

F and Te Ipukarea Society 1996 Incorporated (TIS) alleged in judicial review claim that, adopting Regulations,  Fishery Plan, and Partnership Agreement, Cook Islands Government failed to (i)  carry out Environmental Impact Assessment (EIA), as required under national and international law, (ii) apply precautionary approach, or have proper regard to impact of measures, as required under national and international law, (iii) consult the Aronga Mana (traditional Cook Islands leaders), in accordance with customs Constitution protected, and (iv)  consult key stakeholders, including Aronga Mana and TIS, in accordance with Fishery Plan – Cook Islands HC dismissed each challenge grounds –

F and Society appealed to Cook Islands CA – CA partly allowed appeal, saying Government unlawfully failed to carry out EIA and to apply precautionary approach – CA upheld HC decision that Government not required to consult Aronga Mana and TIS –

F appealed to PC regarding CA conclusions on consultation issues – Attorney-General cross-appealed against CA conclusions on EIA and precautionary approach – PC said, among other things, custom of  Aronga Mana established by evidence provided to PC for purposes of article 66A(4) of Cook Islands Constitution did not extend to custom that Aronga Mana be consulted and informed otherwise than for purpose of exercising their traditional jurisdiction as tiaki over  kai moana in the Moana Nui O Kiva – Jurisdiction  superseded by powers and functions conferred on Ministry of Marine Resources – Appeal dismissed, cross-appeal allowed.

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