New Zealand Law Society - Supreme Court roundup 19-25 Mar

Supreme Court roundup 19-25 Mar

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

New Zealand Supreme Court

Time extension, leapfrog appeal

An Li Tao v Strata Title Administration and anor [2021] NZSC 23 (17 March 2021)

Unsuccessful leave application – Self-represented ALT sought leave to appeal directly to SC against two HC judgments which SC dubbed substantive and the costs judgments – respectively - The two HC decisions were more than four years ago, meaning ALT also needed time extension of time to file leave application - Judgment should be read alongside the judgment regarding associated leave application - In the substantive judgment, HC entered summary judgment in favour of the respondents regarding two separate sets of proceedings ALT commenced in HC - In costs judgment, HC ordered her to pay to pay $60,210 costs being 25 per cent above scale – SC application faced several hurdles – First, application out of time – Second, application sought leave for leapfrog appeal, direct appeal from HC to SC – Third, ALT attempted unsuccessfully to appeal against substantive and costs judgments to CA on more than one occasion – No substantial merit in application and sufficient explanation for the delay in applying for leave - No proper basis for granting time extension – Application dismissed.

Bankruptcy discharge, leapfrog appeal, time extension

An Li Tao v Strata Title Administration and anor [2021] NZSC 24 (17 March 2021)

Unsuccessful leave application- Self-represented ALT applied for leave to bring leapfrog appeal against HC decision declining application for her early discharge from her bankruptcy under ss 294 and 298 - Insolvency Act 2006s – Application over five months after HC decision - Needed time extension for leave application - application for time extension granted, but leave application leave dismissed.

Murder, appeal against conviction

Mesui Tufui v R [2021] NZSC 25 (18 March 2021)

Unsuccessful leave application – After jury trial MT convicted on charges of murder and attempted murder, along with FT - T appealed unsuccessfully to CA against conviction - Sought leave to appeal to SC - No question of general or public importance arose - Nothing T raised suggest any error in CA assessment of facts – SC said proposed ground based on unfair trial did not meet leave criteria – Application dismissed.

Murder, appeal against sentence

Fisilau Tapaevalu v R [2021] NZSC 26 (18 March 2021)

Unsuccessful leave application - After jury trial FT convicted on charges of murder and attempted murder, along with MT - FT sentenced to life imprisonment with MPI 17 years – Appealed against sentence unsuccessfully to CA - Sought leave to appeal to SC – SC said might arguably be a question of general or public importance about the methodology to be used in sentencing in these types of cases and where s 104 Sentencing Act engaged – This case is not an appropriate one in which to consider question – Nothing FT raised suggested appearance of a miscarriage of justice in the CA assessment of facts and the relative culpabilities – Application dismissed.

Appeal against decision to not appoint legal aid provider

McGuire v Secretary of Justice [2021] NZSC 27 (18 March 2021)

Unsuccessful leave application – Self-represented M applied for leave to appeal against CA decision upholding Secretary for Justice’s decision not to approve his application to be a legal aid provider in low-level criminal proceedings – Common ground that application did not involve question of general or public importance - Rather, M said leave should be granted on the miscarriage of justice ground – SC said no real risk that substantial miscarriage of justice could occur if leave not granted – Application dismissed.

Leave to appeal

H v Minister of Immigration [2021] NZSC 28 (19 March 2021)

Successful leave application - Approved question whether CA correct to dismiss appeal.

United Kingdom Supreme Court

1980 Hague Convention, asylum claim

G v G [2021] UKSC 9 (19 March 2021)

Successful appeal from CA - The parties were parents of an eight-year-old girl (G) - G was born in South Africa, where she had been habitually resident all her life - In March 2020, G’s mother, the wrongfully removed G from South Africa to England, in breach of G’s father’s custody rights – G’s father applied for an order under 1980 Hague Convention (1980 HC) for G’s return to South Africa - Mother opposed application on the ground, in particular, that there was a grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation - Mother identified as lesbian - Alleged that after separating from the respondent and coming out, her family subjected her to death threats and violence - On arrival in England she applied for asylum based on her fear of persecution by her family - Listed G as a dependant on her asylum application - G had not made asylum application in her own right - Core asylum law principle that refugees protected from being returned to the country in which they have a well-founded fear of persecution - Unlawful return of a refugee is known as “refoulement” - Central question in appeal was whether G was protected from refoulement through being listed as a dependant on her mother’s asylum application, such that she could be returned to South Africa under 1980 HC proceedings until the asylum application was determined - If so, this raised further question of how the 1980 HC proceedings and the asylum claim could be coordinated - Asylum claims could take months, if not years, to resolve - 1980 HC required prompt determination of an application for the return of an abducted child (which means, in this context, within six weeks) - Therefore a real risk that by the time the asylum claim was determined, the relationship between the child and the left-behind parent would be harmed beyond repair - Also a real risk in cases of this type that the taking parent would seek to achieve that objective by making a sham or tactical asylum claim – CA said child listed as a dependant on an asylum application had no protection from refoulement - If G had applied in her own right, she could not be returned prior to her application being determined – CA said no bar to ordering G’s return to South Africa - Mother appealed to SC – SC substantially allowed mother’s appeal - Said a child who could objectively be understood to be an applicant for asylum could not be returned to the country from which he or she has sought refuge before the final determination of the asylum claim - Case remitted to HC for reconsideration of the 1980 HC application on that basis.

“Sleep-in” care workers, time calculation for National Minimum Wage

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersand and anor [2021] UKSC 8 (19 March 2021)

Unsuccessful appeals from CA - Appeals by two care workers who were “sleep-in” workers - By arrangement they were permitted to sleep at or near their place of work - Appeals related to calculation of the time spent by them for the purposes of the National Minimum Wage (“NMW”) - Calculation differed according to whether work was “salaried hours work”, “time work”, “output work” or “unmeasured work” as defined by National Minimum Wage Regulations 1999 (1999 regulations) and National Minimum Wage Regulations 2015 (2015 regulations). regulations -Judgments here concerned only with time work and salaried hours work – T-B was a highly qualified care support worker who provided care to two vulnerable adults at their own home - When she worked at night, she was permitted to sleep but had to remain at her place of work - Had no duties except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent - For each night shift, she was paid an allowance plus one hour’s pay at the NMW rate - She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. Her work was time work - Employment tribunal (ET) and, on appeal, the employment appeal tribunal (EAT) said T-B was not merely available for work but actually working throughout her shift, even when asleep - Therefore each hour of her sleep-in shift had to be included in the NMW calculation – S was an on-call night care assistant at a residential care home - Was provided with free accommodation at the care home and paid a fixed amount per week - Was required to be present in the accommodation from 10 pm to 7 am - Was permitted to sleep during that period, but had to assist if the night care worker on duty required his assistance during those hours - In practice he was rarely called upon - He brought proceedings among other reasons to recover salary arrears on basis that he was entitled to be paid the NMW for each hour that he was required to be on-call – S’s work was salaried hours work - ET and EAT dismissed S’s claim – CA said neither entitled to be paid NMW for all hours of their sleep-in shifts – Both appealed to SC – SC unanimously dismissed appeals – Said meaning of the sleep-in provisions in the 1999 regulations and the 2015 regulations was that, if the worker was permitted to sleep during the shift and only required to respond to emergencies, the hours in question were not included in the NMW calculation for time work or salaried hours work unless the worker was awake for the purpose of working – Appeals dismissed.

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