New Zealand Law Society - Courts roundup 14 April - 20 April 2022

Courts roundup 14 April - 20 April 2022

Courts roundup 14 April - 20 April 2022

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

New Zealand Court of Appeal

Criminal Disclosure Act (login required)

A v TVNZ [2022] NZCA 133 (14 April 2022) Kos P, Clifford and Goddard JJ

Partly successful appeal relating to disclosure of interview conducted by TVNZ with complainant X - Short extract from interview had been broadcast on “Sunday” – A jointly charged with supplying ecstasy to and indecent assault of X aged 15 – Significant public interest in offending and arrest – X participated in interview with confidentiality assurances - A sought disclosure on grounds key trial issue was credibility and any inconsistency between interview and EVI was relevant - TVNZ declined relying on confidentiality agreement and confidential relationship between journalists and source – DCJ admitted 2 excerpts evidencing possible inconsistency – Leave to appeal on whether decision in Opetaia applied and use of conditions including counsel commitment to line of questioning at trial – CA considered Best Practice Guidelines for Criminal Disclosure, Otahuhu DC, Moore (Ricardo) and non-party disclosure rules in s24 to s29 CDA – Evaluative exercise under s29(1) – CA directed disclosure of further excerpts comprising narratives of alleged offending.

Vendor & purchaser – Restraint of trade

Gordon (G) v Christensen (C) [2022] NZCA 130 (12 April 2022) Kos P, Clifford and Gilbert JJ

Successful appeal from decision finding breach of restraint of trade – Gs sold majority shareholding in TSIL to Cs subject to 3-year restraint – Gs not to engage in “same or substantially similar business” namely “the manufacture…distribution…of…partitioning…or doors systems” – Gs purchased company which sold aluminium extrusions used to mount and hold interior windows, doors and partitions and incorporated ASL to take over business – Componentry supplied to builders who installed it – HCJ found ASL distributed sufficiently large proportion of a partitioning or door system as to distribute systems for purpose of clause – CA upheld HC approach to construction but found ASL’s business activity was not the same or substantially similar having regard to different roles and markets and absence of direct competition – Injunction discharged.

Trusts & trustees – Māori land

Walters (W) v Wikiriwhi [2022] NZCA 93 (29 March 2022) Kos P, Clifford and Collins JJ

Unsuccessful appeal from decision of Māori Appellate Court upholding removal of trustees – Appellants were trustees of ahu whenua trust – Agreed that if W helped fund land purchase, trust would sell part of land to W – Maori Land Court found W had conflict of interest and other trustees breached duties as trustees in approving sale – Court removed trustees with order that W pay damages – CA upheld findings as to breach and MAC decision to remit quantum of damages to MLC.

Resource Management

Northlake Investments Limited (Northlake) v Otago Regional Council [2022] NZCA 129 (12 April 2022) Cooper, Brown and Goddard JJ

Unsuccessful appeal against conviction - Discharging contaminants onto land contrary to s15 RMA – Substantial subdivisional earthworks largely completed but unvegetated – After heavy rainfall sediment escaped entering Clutha River – Northlake charged with contravening s15 directly under s338 – Appeal focus on s340 liability of principals for acts of agents – Whether developer was liable as active or passive discharger – Statutory bases for liability - Whether Northlake acted reasonably in engaging and relying on expert advice – DC conclusion upheld - Northlake failed to take reasonable precautions of prudent developer in overseeing works and ensuring appropriate silt and sediment controls for duration - Failure was operative or effective factor in causing discharge – Conviction upheld.

Criminal procedure – Name suppression (login required)

Y(CA651/2021) v R [2022] NZCA 132 (14 April 2022) Collins, Lang and Mallon JJ

Successful appeal from decision declining interim name suppression – Y aged 16 charged with murder and wounding with intent to cause GBH – Alleged offending in gang-related fight – Credible narrative of self-defence – Whether Y would suffer extreme hardship if name published – Whether publication would endanger safety of younger brothers – DP(CA418/2015) applied - Court not precluded from recognising special importance of youth at jurisdictional or discretionary stages of inquiry having regard to UNCROC and NZBORA – CA found publication likely to cause extreme hardship for: (i) Y having regard to youth, arguable defence and real possibility prospects of rehabilitation would be irreparably compromised; (ii) siblings given evidential foundation for concerns as to bullying.

New Zealand Supreme Court

Caveat, undertaking as to damages

Cowan and anor v Cowan and anor [2022] NZSC 43 (12 April 2022)

Unsuccessful appeal from CA - In August 2020, 170 Queens Drive Ltd  (developer) purchased John C’s family home in Lyall Bay, Wellington for $1.1 million - Developer planned to construct 30 presold townhouses on property and five neighbouring sections it also acquired – John, wife Marama, purchased property in 1974 – Marama died in 2019 – Intended property be preserved for Christine , one of her three children, and wider family – Also premise of agreement with John in 2002 and relationship property agreement, drafted shortly before death - She signed, not John –

In November 2020, Christine and Te Rahui, another Cowan child, lodged caveat against Lyall Bay property title responding to August 2020 sale, claiming interest “[b]y virtue of an implied trust” –

Various procedural issues ensued, including appeal to CA allowing second caveat subject to undertaking as to damages – SC granted leave for Christine and Te Rahui to appeal CA decision upholding associate judge’s decision to remove second caveat, partly because of undertaking’s nature -

SC dismissed appeal - Said, among other things, scope for debate about whether (a) undertaking should have been required, (b) if required, whether should have been capped and (c) if so, at what amount – Said undertaking required to be sufficiently substantial to provide material protection for John - Even $10,000 Christine raised did not provide that level of protection - On any plausible approach, John’s exposure to financial loss from second caveat far greater than $10,000 –

Said where caveat existence could cause substantial loss to registered owner, incumbent on caveator to issue promptly, and prosecute diligently, substantive proceedings to establish claimed interest - Did not happen here, resulting in unsatisfactory delay - Meant John’s financial exposure significantly greater than when CA first imposed requirement for undertaking –

SC acknowledged tikanga principles about importance of whenua and kāinga (home)  potentially relevant to Christine and Te Rahui’s substantive claim - Not, however, relevant to  consequences of Christine and Te Rahui’s breach of requirement to provide undertaking which had substance - Meant Christine and Te Rahui unableto pursue claim for most important aspect to them, Lyall Bay property’s future - That there was no appeal against first CA judgment and fairness to John  also significant factors in SC decision – Appeal dismissed.

Property relationships

Sutton and ors v Bell [2022] NZSC 44 ( 12 April 2022]

Successful leave application - Approved question whether CA correct to dismiss appeal - CA decision centred on applicability of s 44 Property (Relationships) Act 1976.

Sentencing, stay of

Morgan v R [2022] NZSC 49 (12 April 2022)

Unsuccessful application for stay of sentencing – Reasons to follow.

Extradition, alleged intentional homicide, PR China

Minister of Justice and anor v Kim [2022] NZSC 44 (13 April 2022)

Successful appeal from CA - Issue for SC whether Minister of Justice’s inquiries at Court’s direction, further assurances and material received from People’s Republic of China (PRC) in response, provided reasonable basis for Minister to conclude  K not at risk of torture or unfair trial if extradited to PRC –

K succeeded in CA,  challenged Minister’s decision to extradite him to PRC to face trial for intentional homicide there - Attorney-General appealed to SC - 4 June 2021 SC said, among other things, that had  further assurances been obtained and further inquiries made, Minister could have reasonably concluded no substantial grounds for believing K would be subject to torture or unfair trial on surrender to PRC - However, Court split on appeal disposition –

SC majority adjourned appeal to allow Minister to further inquire, seek further assurances from PRC government, consider submissions from K - Parties also directed to submit joint report setting out inquiry result and proposed appeal disposition - Report provided -  Court heard further from parties –

Majority allowed appeal - CA decision set aside – Minister’s decision to surrender K reinstated – Appeal allowed.

Liquor policy, Auckland Council

Woolworths New Zealand v Auckland Council and ors [2022] NZSC 46 (13 April 2022)

Successful leave application – Although leave granted in general terms, SC primarily interested in whether CA judgment proceeded on basis appeal would only succeed if no “real and appreciable possibility” element of provisional policy challenged would minimise alcohol-related harm (proportionality considerations not material) and, if so, whether this was correct –

Case related to proposed Auckland Council local alcohol policy -

Parties agreed Medical Officer of Health should be granted leave to appear and be heard as interested party at substantive appeal, if leave  granted - Leave granted to Medical Officer of Health to appear as interested party at substantive hearing – Leave application allowed.

Voting age, lowering of

Make It 16 Inc v Attorney-General [2022] NZSC 47 (13 April 2022)

Successful leave application - Approved question whether CA correct to dismiss appeal – Case centred on lobby group campaign to lower voting age – Application granted.

High Court of Australia

Negligence, PTSD, duty of care

Kozarov v State of Victoria [2022] HCA 12 (13 April 2022)

Successful appeal from Victorian CA – V employed Z as solicitor in Specialist Sexual Offences Unit (SSOU) of Victorian Office of Public Prosecutions - Primary question on appeal whether V’s failure to take reasonable measures responding to "evident signs" of Z’s psychiatric injury from vicarious trauma suffered in role exacerbated and prolonged Z’s psychiatric injury –

In February 2012, Z diagnosed with post-traumatic stress disorder from vicarious trauma suffered in course of employment - Later diagnosed with major depressive disorder as corollary of post-traumatic stress disorder –

Z sued V - Awarded damages for negligence at trial - On appeal, CA upheld trial judge's finding V on notice of risk to Z’s mental health by end of August 2011 - However, CA rejected trial judge's finding that at end of August 2011, Z would have accepted offer to rotate out of SSOU – CA consequently said  V's breach of duty did not cause exacerbation of Z’s psychiatric injury between August 2011 and departure from SSOU in February 2012 –

HC said V on notice by end of August 2011 that Z at risk of harm from work – Also, CA erred  rejecting trial judge's finding regarding steps to rotate the appellant out of SSOU – Appeal allowed.

Employment, union membership, penalties

Australian Building and Construction Commissioner v Pattinson and anor [2022] HCA 13 (13 April 2022)

Successful appeal from Full FCA – Concerned FCA powers under s 546 of the Fair Work Act 2009 (Cth) (Act) to impose civil pecuniary penalties for contravening Act’s civil remedy provisions –

P an M employee and site delegate for union (CFMMEU) - P told two M subcontractor employees they had to become members of industrial association to work on site (misrepresentation) - Since at least advent of Workplace Relations Act 1996 (Cth), implementing this type of policy unlawful –

Commissioner took civil penalty proceedings in FCA –P and CFMMEU accepted P’s misrepresentations twice contravened s 349(1) Act because knowingly or recklessly made false or misleading representation about employees’ supposed obligations - Actions attributable to CFMMEU, meaning it also contravened s 349(1) - Primary judge imposed civil pecuniary penalties on both –

Primary judge imposed maximum penalties on CFMMEU, having regard to CFMMEU's longstanding history of Act contraventions to further "no ticket, no start" policy - Full Court overturned decision, saying penalties disproportionate - Imposed lower penalties on both –

HC unanimously said Full Court erred concluding not open to primary judge to impose maximum penalty on CFMMEU - Civil penalty imposed under s 546 primarily, if not solely, to promote public interest in compliance with Act provisions through deterring further contraventions – Appeal allowed.

Juror misconduct, Google search

Hoang v R [2022] HCA 14 (13 April 2022)

Successful appeal from NSW CA - Concerned mandatory discharge of juror under s 53A(1)(c) Jury Act 1977 (NSW) where juror engaged in "misconduct" - "[M]isconduct" included "conduct that constitutes an offence against" Jury Act - An offence against s 68C(1) for juror to make inquiry, such as researching on internet, for purpose of obtaining information about any matters relevant to trial –

H tried in NSW DC on indictment – Charged with 12 counts of sexual offences against children, allegedly committed whilst   mathematics tutor - Crown led evidence  H did not hold Working with Children Check –

During deliberations, jury indicated had reached unanimous verdicts on eight counts - Following day, foreperson provided note to trial judge stating juror, a teacher,  had Googled requirements for Working with Children Check and discovered relevant legislation - Trial judge took ten verdicts, eight of which jury indicated had reached the day before juror's Google search, and only then discharged the juror under s 53A(1)(c) - Remaining jurors later delivered guilty verdicts in respect of two remaining counts –

CA dismissed H’s appeal, saying juror had not engaged in misconduct - Inquired for "satisfying herself as to why she did not require a Working with Children Check", not matter relevant to trial – CA also said mandatory discharge under s 53A(1)(c) not required before trial judge took ten verdicts as Judge only tentatively formed view there was misconduct before taking verdicts –

HC unanimously said juror engaged in misconduct and trial judge erred taking verdicts before discharging juror - Phrase "information about ... any matters relevant to the trial" to be understood as including, at least, information about matters of evidence given or addressed to jury at trial - Section 68C (1) not concerned with juror's motive – Appeal allowed.

Supreme Court of Canada

Constitutional law, Canadian Charter, Unlawful search

R v Tim [2022] SCC 12 (14 April 2022)

Partially successful appeal from Alberta CA - T hit road sign on busy Calgary street, kept driving - When police found him nearby , officer asked for driver’s  papers - While T searched for documents, officer saw him try to hide zip-lock bag containing single yellow pill - Officer correctly identified pill as gabapentin, a prescription drug, but mistakenly believed was controlled substance - After officer arrested T, he and another officer searched T and car - Found illegal drugs, ammunition and loaded handgun -

T charged with drug and firearm offences - At trial, said police had no basis to arrest or search because officer mistaken about gabapentin’s legal status - Said police violated rights under ss 8 and 9 Canadian Charter of Rights and Freedoms (Charter) - Section 8 Charter protected from “unreasonable search or seizure”, s 9 protected from “arbitrary detention” – Trial Judge dismissed arguments and admitted evidence - Convicted on all charges – T appealed - Alberta CA said no Charter rights violation - Appealed to SC –

SC majority dismissed appeal – Said arresting police violated T’s s 9 Charter right - Said because T’s arrest unlawful, searches violated s 8 Charter right –

Said when evidence obtained in manner that violated accused’s Charter rights, courts conducted analysis to determine if evidence could still be admitted, or whether admission would harm or “bring the administration of justice into disrepute” – Here, SC said violations less serious,  only moderately impacted T’s Charter-protected interests -  Evidence reliable and essential to prosecuting serious offences - Weighing these factors SC said evidence admissable  – SC upheld T’s convictions.

Judicial Committee of the Privy Council

Undue influence, property transfer

Enal v Singh and ors [2022] UKPC 13 (11 April 2022)

Unsuccessful appeal from Trinidad and Tobago CA - Ramnarine Maharaj (Ramnarine) wealthy property owner who bought and sold properties in own name and names of children - In 1964, R granted power of attorney over assets located in Trinidad and Tobago belonging to son Ravidath (Ravi) - In 2006 Ramnarine used power of attorney to execute transfer (transfer) of property in San Fernando, Trinidad (Property) to other family members for $550,000 -

Following property transfer, Enal, executrix of Ravi’s estate and former partner, commenced proceedings seeking to have transfer declared void and/or set aside - At first instance, trial judge said transfer properly authorised,  not procured by undue influence – On appeal CA reversed findings, allowing appeal - S appealed to PC –

After analysing various undue influence elements PC said S obtained title to property which belonged to Ravi at fraction of true value resulting from transaction concealed from him despite Ramnarine’s promises to consult him and account for purchase price - When transaction of this kind which clearly called for explanation took place between people in relationship of trust and confidence, stage set for court to infer that, in absence of satisfactory explanation, could only have been produced by undue influence – Trial judge clearly wrong to ignore evidence of  power of attorney and hold that 2006 sale not  transaction calling for explanation – Appeal dismissed.