New Zealand Law Society - Supreme Court roundup 26 Feb - 4 Mar

Supreme Court roundup 26 Feb - 4 Mar

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

NZ Supreme Court

Unlawful sexual connection

Singh v R [2021] NZSC 10 (24 February 2021)

Unsuccessful leave application – S convicted after a jury trial on one charge of sexual violation by unlawful sexual connection (committed by digital penetration) - Sentenced to two years and 10 months imprisonment – Appeal to CA based on miscarriage of justice arising through prosecutor eliciting evidence of penetration from the complainant through a leading question - CA rejected this saying crucial evidence from complainant in response to second question, which was an open question – S wished to argue on appeal, if leave granted, that CA erred in determining that crucial evidence elicited by means of the second, rather than the first question – SC said room for debate about CA conclusion that it was second first question, but did not see the case raised a point of public importance - Rather, it turned on specific and unusual case facts – Miscarriage ground not made out – Application dismissed.

Appeal against minute appointment of amicus curiae

Re Siemer [2021] NZSC 12 (1 March 2021)

Self-represented S sought leave to appeal from CA decision striking out what purported to be an appeal against a minute of 28 February 2020 of HC Judge - CA said minute did not relevantly contain a “judgment, decree or order” and was not amenable to appeal – SC said in the minute, there was a decision not to take the matter any further – Did not provide a jurisdictional basis for an appeal - In none of this was there a determination adverse to S – Not occasion to appoint amicus curiae – Applications dismissed.

Asset forfeiture

Drake and anor v Commissioner of Police [2021] NZSC 13 (1 March 2021)

Unsuccessful leave application - Asset forfeiture orders made under the Criminal Proceeds (Recovery) Act 2009 against the D and S relating to benefit fraud and tax evasion respectively - They sought leave to appeal against CA dismissing their appeal against orders and refusing their application for relief – SC said applications largely concerned factual matters relevant to applicants’ particular circumstances - Nothing raised suggested courts below erred in their analysis - To extent that proposed appeal grounds related to legal questions, insufficient prospect of success to justify granting leave – Leave criteria not met – Application dismissed.

Non-party costs, statutory demands set aside

BPI Trustees (No 1) Ltd and anor v Bassett-Burr [2021] NZSC 14 (1 March 2021)

Unsuccessful leave application – Applicants sought leave to appeal against two CA decisions- First was an interlocutory decision which amended the parties to the appeal - Second a substantive judgment which set aside costs order against B – Matter initially concerned five statutory demands which were served on H and associated entities by B a director of LT, signed off on the statutory demands – HC said statutory demands improperly issued and hence were set aside – HC ordered non-party costs personally against B - SC said jurisdiction to award costs against non-party arose through Court’s inherent jurisdiction and discretion afforded under Rule 14.1 of High Court Rules - SC said arguable whether CA correct to say HC had no jurisdiction to make a costs order against a non-party in the absence of a formal application - However, natural justice would generally require that non-parties be given notice of the possibility of a costs order against them and be provided with an opportunity to respond – Here, CA said that there had not been adequate notice – SC said  a question of fact and did not merit granting leave - In any event, SC said applicants had alternative avenue of redress: formally applying to HC for costs against B - Refusal of leave did not result in any prejudice to the applicants – Application dismissed.

High Court of Australia

Constitutional law, COVID-19 – Validity of legislation

Palmer and anor v State of Western Australia and anor [2021] HCA 5 (24 February 2021)

Reasons for 5 November 2020 answers to questions referred from Western Australia over whether Quarantine (Closing the Border) Directions (WA) (Directions) and/or the authorising Emergency Management Act 2005 (WA) (Act) were invalid (in whole or in part) for impermissibly infringing s 92 of the Constitution – On 15 March 2020 Western Australian Minister for Emergency Services declared a state of emergency in Western Australia over COVID-19 pandemic - Section 56 empowered the Minister to declare a state of emergency provided, among other things, they were satisfied of the occurrence of an emergency and that extraordinary measures were required to prevent or minimise "loss of life, prejudice to the safety, or harm to the health, of persons" - Section 67 relevantly empowered an authorised officer, "[f]or the purpose of emergency management" during a state of emergency, to direct or prohibit the movement of persons into an emergency area - State Emergency Coordinator issued Directions which took effect from 5 April 2020 - Under paras 4 and 5, Directions prohibited entry of persons into Western Australia unless they were the subject of exemption - In proceedings commenced on 25 May 2020 in HCA original jurisdiction P sought declaration that Act and/or Directions were invalid, either wholly or in part, breaching s 92 of the Constitution. - Section 92 provided "trade, commerce, and intercourse among the States ... shall be absolutely free" – P said Directions imposed an effective burden on freedom of intercourse, prohibiting cross-border movement, or alternatively Directions imposed an effective discriminatory burden with protectionist effect and consequently contravened freedom of trade and commerce - On 6 November 2020, HCA answered principal question saying ss 56 and 67 of the Act in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic complied with each limb of s 92, that the exercise of the power to make paras 4 and 5 of the Directions did not raise a constitutional question - As no issue about the authorisation of the Directions by the statutory provisions was raised, there was no other question for Court to determine.

Judicial Committee of the Privy Council

Insolvency, Company liquidation, Director’s duties

Byers and ors v Ningning [2021] UKPC 4 (22 February 2021)

Successful appeal from Eastern Caribbean CA (Virgin Islands) – B and McD (B) were joint liquidators of Pioneer Freight Futures Company Limited (Company) -  C was former director and sole beneficial owner of the Company - Shortly before Company entered into provisional liquidation, approximately US$13 million was transferred from its bank account to one of its creditors, Zenato Investments Limited (Zenato) - One of C’s acquaintances in the People’s Republic of China, Song Dingding, operated Zenato -  B claimed C acted in breach of her fiduciary duties to Company by causing or procuring this payment - In particular, PC asked to consider whether CA erred to 1)  Fail to interfere with trial judge’s factual findings that: (a) C was neither a Company director nor shadow director of at the time of the payment; (b) C did not cause or procure the payment; and (c) C was not in breach of any fiduciary duty to the Company; and 2) Ruling no order for relief should be made against C under section 249 of the Insolvency Act 2003 – PC said this was one of those rare cases in which it was appropriate to intervene – C continued to owe fiduciary duties to PFF because on the facts she remained a de jure director - No need to consider whether, had that directorship come to an end, she would have owed fiduciary duties to the company for any other reason – PC said not necessary here to explore the boundaries of the fiduciary duty owed by a director of an insolvent company - PC had no doubt that here, when making or authorising payments from PFF’s account, C had fiduciary duty to act honestly and in good faith in what she believed to be the best interests of PFF and, through PFF, as an insolvent company, in the best interests of its creditors - Similarly, she had a duty to exercise her powers as a director for proper purposes – Appeal allowed.

United Kingdom Supreme Court

Maritime law, Collision Regulations

Evergreen Marine (UK) Ltd v Nautical Challenge Ltd [2021] UKSC 6 (19 February 2021)

Successful appeal from CA - On 11 February 2015 EM’s  large container vessel, Ever Smart, and NC’s  VLCC (very large crude carrier), Alexandra 1, collided at sea – Appeal raised two important questions of construction of the International Regulations for Preventing Collisions at Sea 1972 (Collision Regulations) - Collision Regulations of great importance to mariners and helped prevent collisions at sea worldwide - This was the first appeal in a collision case to come to SC - Collision occurred just outside the entrance/exit channel to the port of Jebel Ali in the United Arab Emirates (channel) at night - Ever Smart was outbound from Jebel Ali and had been navigating along the channel - At collision, her speed over the ground was 12.4 knots -  Alexandra 1 was inbound to Jebel Ali but had not entered the channel as she was waiting in the pilot boarding area to pick up a pilot - She was moving over the ground very slowly, approaching the channel but with a varying course - At collision, her speed over the ground was 2.4 knots - Although it was night time, there was good enough visibility for the vessels to have seen each other from about 23 minutes before the collision - For the whole of that period, the two vessels were approaching each other on a steady bearing –

To determine the liability of each vessel for the collision, HC assessed each vessel’s faults, applying the Collision Regulations -  A principal dispute between the owners of Alexandra 1 and Ever Smart was whether "crossing rules" in the Collision Regulations applied - Ever Smart’s owners argued that crossing rules applied as Ever Smart and Alexandra 1 were power-driven vessels "crossing so as to involve risk of collision" (rule 15) and therefore Alexandra 1, as the vessel which had the other on her starboard side (give-way vessel), should have kept well clear of Ever Smart (stand-on vessel), which was required to keep her course and speed -

HC disagreed with Ever Smart’s owners - First, HC said crossing rules did not apply as Ever Smart was navigating within a narrow channel and Alexandra 1 was approaching the narrow channel, intending and preparing to enter it, so that the narrow channel rules applied and displaced the crossing rules (Issue 1) -  Second, crossing rules not engaged in any event as Alexandra 1 was not on a steady course, despite being on a crossing course and on a steady compass bearing from Ever Smart (Issue 2) - HC held Ever Smart 80% liable for the damage caused by the collision and Alexandra 1 20% liable – CA agreed on both issues and on apportionment - Ever Smart’s owners appealed to SC – SC unanimously allowed appeal – Said Collision Regulations were an International Maritime Organisation Convention designed to promote safe navigation and prevent collisions at sea worldwide - Must be interpreted in a practical, uniform manner to provide clear navigational rules for all mariners, whether professional or amateur, and for all vessels, large and small - Interpretation of the crossing rules should have due regard to the well-known statement in a PC case that "wherever possible" the crossing rules "ought to be applied and strictly enforced because they tend to secure safe navigation" – Appeal focus was

crossing rules, but important to read them in context - Risk of collision between two powered vessels could arise in three different ways - Collision Regulations established rules for each: overtaking vessels; vessels approaching each other head-on; and vessels crossing so as to involve risk of collision -  "Crossing" meant vessels’ courses were not parallel but intersecting - "So as to involve risk of collision" could be determined in a variety of ways, but if vessels  approaching each other on a steady bearing, there would be a deemed risk of collision (rule 7(d)(i))  - Crossing rules lay at the heart of the scheme for avoiding collisions where two vessels were approaching each other on a steady bearing (other than overtaking or head-on) and were thereby at risk of collision – Here crossing rules applied and Alexandra 1, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Ever Smart. As a result, HC would need to redetermine the apportionment of liability between the two parties – Appeal allowed.

Citizenship, deprival of, reasons,  national security and public interest

R (on application of Begum) v Special Immigration Appeals Commission;  R (on application of Begum) v Secretary of State for the Home Department [2021] UKSC 7  (26 February 2021)

Successful appeal from CA - On 19 February 2019, the Secretary of State for the Home Department (Secretary) notified B that he intended to deprive her of her British citizenship (deprivation decision) - Stated reason for the decision was B was “a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL”, and that “[i]t is assessed that [her] return to the UK would present a risk to the national security of the [UK]”  - Secretary certified that decision taken partly relying on information which, in his opinion, should not be made public in the interests of national security and in the public interest - B was at that time, and still is, being held at a camp in Syria by the Syrian Democratic Forces - On 3 May 2019, she applied for leave to enter the UK to pursue an appeal against the deprivation decision, and to avoid the risk of mistreatment - On 13 June 2019, the Secretary refused that application (LTE decision) - Secretary certified that this decision had also been taken partly in reliance on information which, in his opinion, should not be made public in the interests of national security and in the public interest - Appeals in three separate sets of proceedings reached SC - First proceedings arose from B’s appeal to the Special Immigration Appeals Commission (SIAC) against deprivation decision - As preliminary issues in that appeal, SIAC said Secretary did not depart from his extraterritorial human rights policy when he made the deprivation decision (policy issue) and that, although B could not have an effective appeal against that decision in her current circumstances, it did not follow that her appeal should succeed (fair and effective appeal issue) – Her appeal against deprivation decision not having been finally determined, B did not have a statutory right of appeal to CA - Instead, she challenged SIAC’s determination of the policy and fair and effective appeal issues by applying for judicial review - Divisional Court ruled for B on policy issue, but not fair and effective appeal issue - Secretary appealed to SC - Said Divisional Court wrong to conclude that SIAC had erred to determine policy issue using administrative law principles - B cross-appealed, saying Divisional Court wrong to reject her argument that her appeal against the deprivation decision should automatically be allowed if it could not be fairly and effectively pursued as a consequence of the refusal of her application for leave to enter UK –

The second proceedings related to LTE decision - B had statutory right of appeal only so far as she claimed decision unlawful under the Human Rights Act 1998 - Made such an appeal, but SIAC refused it at first instance – B then successfully appealed to CA - Secretary of State appealed to SC – Said CA wrong to conclude that B must be granted leave to enter because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision – Third proceedings concerned LTE decision, other than over compliance with the Human Rights Act 1998 - Not having a statutory right of appeal to SIAC in that respect, B applied for judicial review. Administrative Court dismissed application, but CA granted it - Secretary of State appealed to SC - Issue arising again, whether CA wrong to conclude that B must be granted leave to enter because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision – SC unanimously allowed Secretary’s appeals and dismissed B’s cross-appeal – Result was B’s appeal against LTE decision dismissed, her application for judicial review of LTE decision  dismissed, and her application for judicial review of SIAC’s preliminary determination in her appeal against deprivation decision dismissed – Sc saw  four principal errors in CA judgment – First, CA misunderstood the scope of an appeal against Secretary’s decision to refuse a person leave to enter the UK – B’s appeal against LTE decision could only be brought on the ground that the decision was unlawful under section 6 of the Human Rights Act 1998 – As B did not advance that argument before CA, her appeal against the LTE decision should have been dismissed - Secondly, CA  erred in its approach to the appeal against the dismissal of B’s application for judicial review of the Secretary refusal of leave to enter the UK - CA made its own assessment of national security requirements and preferred it to the Secretary’s despite the absence of any relevant evidence before it, or any relevant findings of fact by the court below - Thirdly, CA mistakenly believed that, when an individual’s right to have a fair hearing of an appeal came into conflict with the requirements of national security, her right to a fair hearing must prevail - Fourthly, CA mistakenly treated the Secretary of State’s extraterritorial human rights policy as if it were a rule of law which he must obey, as opposed to something intended to guide the exercise of his statutory discretion – Secretary’s appeals allowed.

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