New Zealand Law Society - Courts roundup 5 May - 11 May 2022

Courts roundup 5 May - 11 May 2022

Courts roundup 5 May - 11 May 2022

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

New Zealand Supreme Court

Liquidator’s remuneration

Quinn and anor v Toon and ors [2022] NZSC 53 (6 May 2022)

Unsuccessful leave application – Lower court decisions related to T’s application for remuneration regarding liquidation of Investacorp Holdings Ltd (Investacorp) – T appointed as liquidator as part of settlement of shareholders dispute - HC did not approve fees and awarded sum much lower than T claimed - CA reversed and awarded fees and costs claimed – Q and W applied for leave to appeal to SC – SC said not in interests of justice to grant leave – Application dismissed.

Time extension, over year’s delay

Cowan and anor v Cowan and anor [2022] NZSC 54 (6 May 2022)

Unsuccessful leave application - On 12 April 2022, SC issued judgment dealing with appeal involving parties to this application – Previous application related to second CA judgment regarding adequacy of undertaking – Two days after SC leave judgment, applicants filed for time extension and leave to appeal first CA judgment – SC said over year’s delay – Decision not to appeal deliberate – Applications declined.

Refugee status, misfeasance, NZBORA

AR (India) v Attorney-General [2022] NZSC 55 (6 May 2022)

Unsuccessful leave application – AR applied for leave to appeal against CA upholding HC decision of striking out applicant’s claim against Attorney-General (A-G) – AR thrice applied for refugee status in New Zealand - Also unsuccessfully sought refugee status in United Kingdom and Australia – Granted visa to remain in New Zealand while proceedings relating to first application for refugee status conducted - Immigration officer entered notation on visa in AR’s Indian passport - Apparently breached s 151 Immigration Act 2009 – Before third application for refugee status determined, AR commenced HC proceedings pleading misfeasance in public office and breaches of ss 8 and 23(5) New Zealand Bill of Rights Act 1990 (NZBORA) - Both claims based on immigration officers notation of visa in Indian passport – A-G applied to strike out both – AR abandoned misfeasance claim - Associate Judge struck out claim alleging NZBORA breaches –

In CA, AR abandoned s 23(5) claim, accepting Associate Judge correct that provision applied only to people deprived of liberty, and had not been deprived of liberty – Continued s 8 claim – Said breached because life was placed at risk if required to return to India – CA rejected claim –

SC accepted s 8 scope matter of public importance – Here case could not succeed on facts – Other claims also rejected – Application dismissed.

Evidence, caveat

Melco Property Holdings (NZ) 2012 Ltd v Hall [2022] NZSC 56 (6 May 2022)

Successful leave application -   Application for leave to adduce new evidence dismissed - Appeal allowed – CA, HC refusing to sustain caveat set aside – Court to release reasons on 12 May 2022.

New Zealand Court of Appeal

Judicial review - Māori land – Treaty of Waitangi

Stafford (S) v Attorney-General [2022] NZCA 165 (5 May 2022) Miller, Clifford and Gilbert JJ

Unsuccessful appeal and cross-appeal relating to refusal of declaratory relief – Proceeding relating to “Nelson Tenths” land – SC previously found Crown owed fiduciary duties to reserve land for benefit of customary owners (trust proceeding) – Questions of breach and relief remitted to HC - S representing customary owners was concerned to protect land in Crown possession from disposal pending final decision – Land Protection Mechanism (LPM) permitted disposal subject to rights of first refusal and notification to S - S sought moratorium on sale of land by “core Crown”, Crown entities and SOEs – Proceeding challenged Crown decision declining moratorium and now sought revised LPM – HC outcome that LPM was strengthened for “core Crown land” and “observations” made concerning Crown obligations to notify - On appeal S argued Crown had fiduciary duty not to alienate any part of land and by excluding Crown entities and SEOs LPM did not go far enough – CA upheld decision - No material irregularity and Ministers’ decision was open - Crown had no power to direct entities regarding land disposal and was not under duty to do so if it did have - CA considered tension between private and public law approaches, intersection with Treaty settlements and Wakatu, Guerin and Ririnui.

Criminal procedure – Juries (login required)

Y v R [2022] NZCA 161 (5 May 2022) Goddard, Simon France and Hinton JJ

Successful appeal against conviction – Murder – Juror misconduct - Y admitted prolonged beating to lower part of partner’s body but disputed murderous intent and that beating was substantial and operating cause of death – Propensity evidence admitted to show tendency to attack head – Primary appeal issue arose from 2 jury incidents – In first, juror seen speaking with members of victim’s support group – Matter appropriately dealt with by trial Judge – In another incident halfway through trial, jury foreperson told court staff jurors had reached verdict on one charge, were “trying to sway someone, but we will get there” and “one of us is trying to play us” – Misconduct breached fundamental juror principles of keeping open mind and presumption of innocence - Flagrant disregard for prior directions – Misconduct could not be remedied by direction – Admissibility of propensity evidence upheld.

Criminal procedure – Evidence (login required)

X v R [2022] NZCA 162 (5 May 2022) Cooper, Peters and Palmer JJ

Successful appeal against conviction - Rape – Trial counsel errors - Failures to provide X with complete copy of text data, discuss texts before trial and challenge complainant on evidence - Prosecutorial misconduct related to closing remarks to jury – Real risk outcome of trial affected – Order for retrial.

New Zealand High Court

Interim injunction, judicial review, “Let’s Get Wellington Moving”

Wellington International Airport Ltd v Waka Kotahi New Zealand Transport Agency and ors [2022] NZHC 954 (6 May 2022) Grice J

Unsuccessful interim injunction application - Wellington International Airport (WIA) sought injunction to suspend construction of $2.8m level signalised crossing on Cobham Drive, Wellington – Proposal part of “Let’s Get Wellington Moving” -

Judicial review to be heard in July 2022 - Claimed Waka Kotahi failed to consult properly and based proposal on material errors – Interim injunction sought as once construction started, traffic to and from airport would be delayed and plans for permanent solution would be foregone –

HC not satisfied WIA had position to preserve - Statutory threshold not met – Circumstances, including relative strength of judicial review application, meant HC exercised discretion against granting interim injunction – Application dismissed.

High Court of Australia

Constitutional law, state versus federal law, jurisdiction

Citta Hobart Pty Ltd and anor v Cawthorn [2022] HCA 16 (4 May 2022)

Successful appeal from FC of SC Tasmania - Primary issue whether Anti-Discrimination Tribunal had jurisdiction under Anti-Discrimination Act 1998 (Tas) (State Act) to determine C’s complaint Citta had discriminated against him -  C asserted parts of State Act inconsistent with Disability Discrimination Act 1992 (Cth) (Commonwealth Act) and standard under Commonwealth Act - Inoperative under s 109 Constitution - Issue arose against background of previous HC decision that ruled State Parliament lacked legislative capacity to confer judicial power on State tribunal that was not State court within Constitution’s meaning in ss 75 and 76 Constitution – Included , relevantly, ss 76(i) (matters arising under the Constitution) and 76(ii) (matters arising under a Commonwealth law) –

C relied on wheelchair for mobility – Complained to Tribunal that Citta building entrance with only stair access constituted direct and indirect disability discrimination under provisions in State Act - Citta as part of defence (constitutional defence), argued provisions inconsistent with  federal scheme for disability access - As result of inconsistency, State Act provisions inoperative because of s 109 of  Constitution – Tribunal said would be exercising judicial power and would be unconstitutional, as was not State court - Without considering constitutional defence, Tribunal dismissed complaint for want of jurisdiction - FC, on appeal, addressed constitutional defence merit and rejected it - Set aside Tribunal order and remitted complaint to Tribunal for hearing and determination –

HC said Tribunal reached correct conclusion on jurisdiction issue - Tribunal exercised judicial power hearing and determining complaint under State Act - Tribunal correct to order complaint dismissed for want of jurisdiction – Appeal allowed.