New Zealand Law Society - Supreme Court roundup 24 March - 30 March 2022

Supreme Court roundup 24 March - 30 March 2022

Supreme Court roundup 24 March - 30 March 2022

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

New Zealand Supreme Court

Immigration, character, association

H (SC 104/2020) V Minister of Immigration [2021] NZSC 192 (23 December 2021)

Delayed release of unsuccessful appeal from CA - H applied for judicial review challenging validity of Immigration New Zealand (INZ) Operational Manual instruction A5.30 - H had been Chinese Public Security Bureau (PSB) officer-

Parties accepted, for case purposes, PSB committed gross human rights abuses - H abandoned association with PSB and, in ultimately successful application, recognised as refugee in New Zealand - However, H’s application for New Zealand residence refused on character grounds because of association with PSB - Subsequent appeals also dismissed –

INZ relied on instruction A5.30 to decline H’s residence visa - A5.30 provided, among other things, residence applications usually declined where applicant has or has had association with, membership of, or involvement with any government, regime, group or agency that advocated for or committed gross human rights abuses –

SC majority dismissed appeal - Said instruction not unreasonable as long as interpreted to require rational connection between applicant’s association with organisation said to have committed gross human rights abuses and applicant’s character - Required decision-maker to consider nature and extent of applicant’s association with human rights abuses (or other activities in instruction) –

SC said association with organisation could indicate someone not of good character – Such finding subject to person’s level of knowledge of alleged activities at relevant time; nature, duration and extent of association with or involvement in activities; and the level of free choice in association with organisation – Appeal dismissed.

Property (Relationships) Act, application to polyamorous relationships

Mead v Paul and anor [2022] NZSC 25 (22 March 2022)

Successful leave application – Approved question whether CA correct to allow appeal – CA ruled, among other things, that Family Court had jurisdiction under Property (Relationships) Act 1976 to determine property claims between two people in a polyamorous relationship - Jurisdiction extended to determining claims involving three people in a polyamorous relationship, where each partner in polyamorous relationship either married to, in civil union with, or in de facto relationship with, each of other partners in that polyamorous relationship – Application allowed.

Immigration, costs

H (SC 104/2020) V Minister of Immigration [2022] NZSC 27 (25 March 2022)

Unsuccessful costs application relating to 2021 case noted above - Minister said costs should follow event in normal manner but sought reduced costs of $12,500 –  - Reduction recognised H succeeded in obtaining leave over  Minister’s opposition at oral leave hearing and, although instruction held valid, was through interpretation Minister had not initially advanced in written submissions –- Instruction interpretation leading to appeal’s dismissal one Court suggested - Relevant that Court suggested drafting changes to make position clear – SC accepted H’s submission that costs should lie where they fell – Application dismissed.

Self-represented litigant, jurisdiction

Barry Bai and anor v James and ors [2022] NZSC 28 (25 March 2022)

Unsuccessful leave application – At issue two CA judgments - SC said no jurisdiction to hear appeal against one, CA refusal to grant leave to appeal – Other related to indemnity costs order and applicants’ conduct - No appearance of miscarriage of justice - Proposed appeal did not give rise to matter of general or public importance – application dismissed.

Judgment recall, “very special reasons”

McKinney v Police [2022] NZSC 29 (25 March 2022)

Unsuccessful recall application - In judgment delivered 21 June 2021, SC dismissed M’s application for leave to bring leapfrog appeal against HC decision– M applied to recall judgment – Said three “very special reasons” that justice required judgment to be recalled –

M’s counsel filed a prolix (56 page) submission supporting recall application – Said reasons were: (a) point at issue involved matters of the highest general and public importance, which were understated in leave decision; (b) leave decision misstated M’s legal arguments; and (c) Court’s reasons for declining leave inadequate –

SC said points advanced essentially relitigated points Court determined when refusing leave - Court previously said was inappropriate: party disagreeing with decision not “very special reason” to recall decision – Application dismissed.

High Court of Australia

Constitutional law, elections, words on ballot paper

Ruddick v Commonwealth of Australia [2022] HCA 9 (25 March 2022)

Special case concerning aspects of Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) (Amendments) – R said these amendments to Commonwealth Electoral Act 1918 (Cth) invalid because infringed implied freedom of communication on government or political matters, or precluded people’s direct choice of senators and House of Representatives members contrary to ss 7 and 24 Constitution –

Special case concerned how Amendments related to Liberal Democratic Party (Party) – If applied, Party would be precluded from using "Liberal" on ballot paper in federal election – R Party Senate candidate for New South Wales - In 2013 federal election, Party appeared first on New South Wales Senate ballot paper – R admitted, in pleading, some voters unintentionally voted for Party instead of Liberal Party because confused about Liberal Democratic Party candidates’ party affiliation - Issue whether could be inferred that significant part of vote miscast/incorrect due to confusion caused over similar party names –

HCA majority said people had to be able to make informed choice - Proof that law burdening   implied freedom required existing freedom curtailed or restricted in some way - Purpose to reduce voter confusion, with likely effect of improved clarity, hence quality of electoral choice and communication on government or political matters – Amendments did not infringe implied freedom.

Judicial Committee of the Privy Council

Employment law, unfair dismissal, wrongful dismissal

Williams v Casepak Company (Grenada) Ltd (t/a Calabash Hotel) [2022] UKPC 9 (21 March 2022)

Unsuccessful appeal from Eastern Caribbean CA for Grenada – Question on appeal whether HC had jurisdiction to hear unfair dismissal claim from person dismissed from employment in service other than "essential service" as defined in Labour Relations Act –

C employed W from 1989 - Relations deteriorated - In 2014, W dismissed – W complained about dismissal to Labour Commissioner - Dispute later referred to Minister of Labour - W not employed in "essential service" as defined in Labour Relations Act - Section 45(4) gave Minister power to "invite both parties to reach mutual agreement on the establishment of an arbitration tribunal" to resolve dispute, but provided "no party is compelled to agree" to establishing tribunal - C refused to agree - No tribunal established -

W brought HC claims for common law wrongful dismissal and unfair dismissal under Employment Act – C applied to have both claims struck out - Judge refused wrongful dismissal application, struck out unfair dismissal claim – Said HC had no jurisdiction where employment in non-essential service – CA dismissed W’s appeal – W appealed to PC –

PC dismissed appeal – Said regrettable that, under Grenada legislation, open to obstructive employer to frustrate unfair dismissal claim in non-essential employment by simply refusing to accept Commissioner or Minister settlement proposed and refusing to agree on arbitration tribunal establishment - Consequence of limited remedies legislature conferred on employees complaining of unfair dismissal - Employees left to common law wrongful dismissal rights enforceable in HC proceedings - For legislature to determine whether different or more generous procedures should be made available to those complaining of unfair dismissal – Appeal dismissed.

United Kingdom Supreme Court

Taxation, deductibility, employee share options

Commissioners for Her Majesty's Revenue and Customs v NCL Investments Ltd and anor [2022] UKSC 9 (23 March 2022)

Unsuccessful appeal from CA - NCL and another company (Companies) subsidiaries of holding company, SWHL - Debits arose from grant to Companies’ employees of options to acquire SWHL shares - Option grants (Options) made via employee benefit trust (EBT) SWHL set up –

International Financial Reporting Standard 2 (IFRS2) required Companies to recognise expense on income statements for EBT granting Options (Debits) – Although Options grant did not require Companies to part with any cash or other assets, IFRS2 required consumption of services provided by Companies’ employees in exchange for Options to be recognised as expense - Because impossible to value precisely how much employees’ services were to be treated as resulting from incentivisation arising from Options grant, IFRS2 set value of services at fair Option value –

Debits on Companies’ income statement had to be matched by corresponding credit on balance sheets - As share options came originally from SWHL, IFRS2 required Companies to treat corresponding credit as capital contribution from parent company (Capital Contribution) -

When computing liability for corporation tax, Companies therefore claimed to be entitled to deduct amount equal to Debits from profits - Her Majesty's Revenue and Customs (HMRC) said Debits should not be taken into account in this way, relying on grounds which, they said, precluded deduction - First-tier Tribunal (FTT), Upper Tribunal and CA rejected HMRC's arguments – HMRC appealed to SC –

SC unanimously dismissed appeal – Said, among other things, no law requiring adjustment to Companies’ financial accounts to exclude Debits from profits computation – Case law since 1971 established that profit from taxpayer’s trade determined according to “ordinary principles of commercial accountancy” - In corporation tax context, profits calculated according to generally accepted accounting practice “subject to any adjustment required or authorised by law” – Appeal dismissed.

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