Supreme Court roundup 5-11 Mar
Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.
M v Attorney-General (In respect of the Ministry of Health) and ors  NZSC 15 (3 March 2021)
Unsuccessful application for reconsideration of approved question - In 16 December 2020 judgment, SC gave M leave to appeal in part - Approved question was: Was the applicant detained unlawfully after 20 December 2008 because the direction of the Attorney-General under s 31(4) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that he be detained as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 was not issued until 14 January 2009, and, if so, for how long? Application was otherwise dismissed – M filed memorandum seeking reconsideration of appeal grounds of appeal – Took issue with SC treatment of one proposed appeal ground, the “discrimination issue” – SC satisfied reasons for declining leave regarding discrimination issue remained valid - Confirmed decision not to grant leave on that point.
Stockman v Health and Disability Commissioner and ors  NZSC 16 (3 March 2021)
Unsuccessful leave application – Self represented S commenced proceedings in the High Court challenging Commissioner’s decisions regarding complaints S made about G’s counselling services - Sought judicial review of a number of decisions and actions Commissioner’s office took regarding some of his complaints, in particular, decision to take no further action on his substantive complaint - Said Commissioner’s office discriminated against him because he was a man - Alleged breaches of statutory duty New Zealand Bill of Rights Act 1990 - Also sought damages from the Commissioner, H a former commissioner, and D, a former deputy commissioner, for misfeasance in public office – HC heard several interlocutory applications and strike-out applications from H and D – Declined interlocutories and granted strike-outs – S appealed to CA – CA (a) rejected S’s claim that HC Judge biased against him because he was an unrepresented litigant and therefore failed to give him a fair hearing; (b) upheld HC refusing standard discovery; (c) upheld HC refusing discovery of confidential reports; (d) upheld the Commissioner’s claim to privilege regarding certain documents; and (e) upheld the striking out misfeasance claims against H and D – Issues S wanted to pursue on appeal came into three broad categories: (a) Procedural unfairness/bias in HC; (b) Discovery issues; and (c) Misfeasance strike-out – SC said nothing that would justify a further appeal to it - Issues fact-specific and raised no point of public importance - No appearance of miscarriage of justice – Application declined.
Siemer v Deputy Registrar  NZSC 17 (4 March 2021)
Self-represented S filed a document headed “Application for Recall of Judgment or Clarification Under the Slip and Ommission [sic] Rule” in which he sought recall of an earlier recall judgment - Application disclosed no proper recall basis, applying a well-known test – Application dismissed.
Prescott v NZ Police  NZSC 18 (5 March 2021)
Unsuccessful recall application – Self-represented P applied to recall SC Judgment – That P ultimately successful on HC appeal did not provide basis to recall SC judgment which dealt with procedural difficulties he faced resulting from erroneous choice to challenge DC decision through judicial review rather than appeal - Nothing in HC decision alters fact that SC case arose from P’s inappropriate use judicial review procedure – That led to judicial review claim being struck out and subsequent application for an extension of time to appeal to CA being dismissed - No proper basis to recall judgment application dismissed.
Zhang v Telco Asset Management Ltd  NZSC 19 (9 March 2021)
Unsuccessful leave application – Self-represented Z applied for leave to appeal to CA (and an extension of time to do so) against two Employment Court judgments, one upholding in part his challenge to a decision of the Employment Relations Authority, and the second awarding him costs of that challenge - His application for an extension of time was granted but leave to appeal was declined - In the submissions it filed in relation to leave, TAM sought costs, but CA judgment dismissing leave application did not address costs one way or the other - TAM then applied for costs – CA ordered Z to pay $6,214 and $3,346 (a total of $9,560) for the two applications for leave - Z applied unsuccessfully to CA to recall that judgment – Z sought leave to appeal to SC against costs award against him and an extension of time to do so – Z advanced a substantial number of possible grounds of appeal - Only three warranted detailed mention – CA costs judgment ambiguous - Could be read as including an additional $1,673 relating to the application time extension (in respect of which Z was successful) – This issue fell away as TAM accepted that judgment should be construed as awarding costs only in respect of the two unsuccessful leave applications - Second was Z’s concerns regarding a CA’s dealings over late submission in its recall decision - Third concerned appropriateness and level of the costs awards – On latter SC said costs awards orthodox and consistent with the principle that costs follow the event - SC saw no merit in the other issues Z raised - No appearance of miscarriage of justice and the proposed appeal did not involve any question of general or public importance – Application dismissed.
R v Esseghaier  SCC 9 (5 March 2021)
Appeal from Ontario CA - In 2015, E and J found guilty of terrorism offences connected with a series of plots designed to kill people - Judge sentenced them both to life in prison with potential availability of parole after serving 10 years from the date of their arrest - They appealed their conviction – Ontario CA overturned their convictions and ordered a new trial - Said jury had not been chosen correctly, in accordance with the rules governing jury selection - Crown appealed to SCC - Before trial, J’s lawyer requested “challenge for cause” to find out if any potential juror might not be fair-minded as a result of having read pre-trial news reports, or because the two accused men were members of visible minorities and Muslim - At the time, the Criminal Code outlined two separate systems for determining if a potential juror was biased, both of which relied on people known as “triers”, whose job was to decide whether each potential juror was fair-minded or not - Trial judge refused J’s request for “rotating triers” – Said trial judges did not have power to exclude unsworn jurors from the courtroom where “rotating triers” were being used - In any event, he said that he would not have used the discretion even if he had it - He believed that to accept J’s request would be to expose the sworn jurors to possible biased comments of potential jurors, and this could pose a risk to trial fairness – Trial judge imposed “static triers” in accordance with J’s alternative request - SC agreed with CA that jury was improperly formed - Trial judge erred by refusing J’s requests for two reasons - First, trial judge had discretion to exclude potential jurors from the courtroom while using “rotating triers” - Second, refusal to use his discretion was unreasonable – Consequently SC said jury not properly formed for J as it was incorrectly selected by “static triers” instead of “rotating triers” with potential jurors removed from the courtroom – Jury also improperly formed for E as he was denied his right to “rotating triers” – SC said a section of the Criminal Code could be used to remedy jury selection errors - said that section’s requirements had been met here - Although jury selection procedure was not technically incorrect, it was one of two alternatives to ensure that an accused person’s right to a fair trial by an independent and impartial jury was protected – While E and J did not receive the specific jury selection process they wanted, the law did not demand procedurally perfect justice, but fundamentally fair justice – SC reinstated E’s and J’s convictions – But they would be able to appeal their convictions to Ontario CA on other grounds – Appeal allowed.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 and anor  HCA 6 (4 March 2021)
Successful appeal from Federal Court (FC) – Minister’s delegate rejected A’s application for a protection visa - Administrative Appeals Tribunal (AAT) affirmed delegate's decision – A sought judicial review of AAT decision in the Federal Circuit Court (CC) – A not represented before CC, but asked for and obtained interpreter’s assistance - CC dismissed judicial review application and delivered an ex tempore judgment - Orders translated for first respondent's benefit, but oral reasons for judgment were not - Written reasons for judgment delivered after A filed his notice of appeal in FC – FC concluded that neither the written AAT reasons or CC disclosed any error - However, FC allowed appeal, set aside CC orders, and remitted matter to that CC for rehearing before different judge – FC said CC failure to have oral reasons for judgment translated for the first respondent's benefit constituted a denial of procedural fairness, and that undoing this denial required CC judgment to be set aside – Minister appealed to HC - Allowing appeal, HC said as a matter of general fairness, rather than independent legal duty, A ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time – However final instance of any right or entitlement of the parties arising from CC obligation to afford procedural fairness occurred at time the parties made concluding submissions – Meant any delay in providing written reasons did not constitute denial of procedural fairness before CC – Also, any practical injustice that may have followed the delay in CC providing written reasons could have been addressed by FC inviting A to amend his appeal grounds to address CC published reasons, and, if necessary, adjourning the hearing of the appeal to permit this to take place – HC said A never independently sought to amend appeal grounds to take account of CC published reasons - Setting aside CC judgment and remitting the matter to be reheard went beyond what was necessary to provide practical justice to A – Appeal allowed.
HKSAR v Lai Chi Ying  HKFCA 3 (9 February 2021)
Successful appeal from CFI - On 12 December 2020, L arrested and charged with one count of “collusion with a foreign country or with external elements to endanger national security”, being an offence under Article 29(4) of the National Security Law (NSL) - Chief Magistrate refused bail and remanded L in custody - On 23 December 2020, L applied to the Court of First Instance (CFI) to review magistrate’s bail refusal - CFI judge granted L bail against undertakings not to engage in certain conduct and activities that might be regarded as the offence of collusion under the NSL and on other conditions governing matters including where the respondent would reside and requiring the surrender of his travel documents - Judge applied legal principles derived from earlier decisions - Prosecution granted leave to appeal to CFA against the Judge’s bail grant to raise an important point of law, namely “What is the correct interpretation of NSL 42(2)?” NSL 42(2) provided: “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security” – CFA said determining NSL 42(2)’s meaning and effect required that provision be examined in the light of the NSL’s context and purpose as a whole, taking into account the constitutional basis on which the NSL applied in the Hong Kong Special Administrative Region (HKSAR) – CFA said NSL 42(2) created a specific exception to the general rule in favour of the grant of bail and imported a stringent threshold requirement for bail applications - When granting L bail, the Judge applied legal principles which were wrong as a matter of law – Appeal allowed and Judge’s decision to grant the respondent bail set aside.
Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck)  SGCA 14 (26 February 2021)
Unsuccessful appeal from HC - In the 1970s, predecessors of MSD and MK entered into a co‑existence agreement to govern the use of the name “Merck” in various jurisdictions around the world - Agreement contained in two documents, the 1970 Agreement and the 1975 Letter - Subsequently, MSD and MK became embroiled in litigation in several jurisdictions, including England, over the use of “Merck” - English courts delivered three decisions before proceedings were commenced in Singapore - In Singapore proceedings, MK and Merck Pte Ltd sued MSD and three other defendants for trade mark infringement, passing off and breach of contract – MK applied to HC for: a) summary judgment against MSD for breach of the agreement between the parties’ predecessors (as comprised in the 1970 Agreement and the 1975 Letter); and b) preliminary determinations on whether the English decisions bound MSD – HC dismissed summary judgment application but allowed one application because the two issues MK raised were “pure questions of law” that would lead to substantial savings of time and expenditure if they were resolved without a full trial – Also said issue estoppel applied meaning the English Decisions bound MSD – MSD appealed to CA – CA said, among other things, it had to determine: a) whether abuse of process doctrine prevented MSD from mounting appeal in the manner that it did; b) substantively, whether HC correct to find MSD estopped from disputing the English CA’s interpretation of cl 7 of the 1970 Agreement - CA said MSD taking inconsistent positions in its conduct of the appeal - Inconsistency did not amount to abuse of process – Said foreign judgments were capable of giving rise to issue estoppel (transnational issue estoppel) - First element of transnational issue estoppel was existence of foreign judgment capable of being recognised in jurisdiction where estoppel invoked - Under common law, foreign judgment in question had to be a final and conclusive decision on the merits by a court of competent jurisdiction that had transnational jurisdiction over the party sought to be bound, and there had to be no defences to recognising the judgment - No special procedure required for recognising foreign judgments under common law beyond normal pleading rules - In the present case, the appellant accepted that issue estoppel would apply to the ECA’s interpretation of cl 7 of the 1970 Agreement – Appeal dismissed.