New Zealand Law Society - Courts roundup 12 May - 17 May 2022

Courts roundup 12 May - 17 May 2022

Courts roundup 12 May - 17 May 2022

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

New Zealand Supreme Court

Self-represented litigant, judgment recall

S (SC 39/2017) v R [2022] NZSC 57 (10 May 2022)

Unsuccessful recall application – Self-represented S filed application to recall previous SC judgment - Judgment dismissed application for leave to appeal against CA judgment dismissing appeal against conviction for sexual offending against young family member – S applied to recall SC judgment previously - Application dismissed on 17 February 2022 - Also unsuccessfully sought to have CA judgment recalled on multiple occasions and advanced other challenges to conviction –

Application essentially raised same grounds in previous recall application – SC already rejected – Application dismissed – Registrar directed to reject any further applications relating to 16 November 2017 judgment.

Self-represented litigants, judgment recall

Ding and anor v James and ors [2022] NZSC 58 (11 May 2022)

Unsuccessful recall application – Self-represented D and B previously applied for leave to appeal to SC against two CA judgments – Application dismissed – Applied to recall SC leave judgment - Application dismissed.

Hotel operation, body corporate, unit titles

Body Corporate 384911 v Wong and ors [2022] NZSC 59 (11 May 2020)

Unsuccessful leave application – BC applied for leave to appeal against CA allowing appeal against HC decision regarding aspects of dispute between unit holders in unit title complex - Complex comprising 191 units - Sixteen units commercial, remainder residential – Residential units hotel-style rooms rather than apartments - Complex designed and operated as hotel – Majority owners operated  hotel from units they controlled – W and others s (who  owned 81 residential units) not involved in hotel operation - Litigation here part of wider dispute between majority owners and others –

SC said points raised in proposed appeal essentially factual - No matter of general or public importance arose - No risk of miscarriage of justice in civil context – Application dismissed.

Due diligence, caveat, condition fulfilment

Melco Property Holdings (NZ) 2012 Ltd v Hall [2022] NZSC 60 (12 May 2022)

Reasons for judgment issued 6 May 2022 - In December 2019, H agreed to sell commercial property to Melco Property Holdings (NZ) 2012 Ltd (M) - Agreement for sale and purchase contained due diligence condition under which M to be satisfied property suitable for requirements or waive compliance - Another clause said either party could avoid agreement if condition not fulfilled or waived by, 9 January 2020 - For disputed reasons, M did not have property access for engineer to carry out seismic inspection before 8 January -

On 9 January, H purported to avoid the agreement as M had neither given notice of condition’s fulfilment nor waived  requirement – M did not accept avoidance – Said  H breached agreement and had no avoidance right– M lodged caveat against property’s title– H agreed with third party to sell property at higher price - Agreement ended because conditional on M removing caveat - M purported to waive due diligence condition and sought settlement – H  refused –

M applied to HC for order that caveat not lapse - Lapse depended on whether H validly terminated agreement - HC ordered caveat lapse - M appealed unsuccessfully to CA – Both said arguable there was implied term that H would provide M with “reasonable” access to complete due diligence –

SC unanimously allowed M’s appeal - Principal difference between parties was effect of failure to facilitate access - Link required between H’s actions and ability to satisfy condition – M said sufficient to show reasonably arguable that failure substantially impeded ability to comply with  condition – H said default had to be causative, failure not causative because largely M’s own conduct (delay and mistaken view over due diligence deadline) that led to its position – SC said necessary link should reflect underlying policy and principle that party should not be allowed to take advantage of situation that party’s default produced - Said test whether default materially affected prospect of fulfilling condition – Here important was conduct of party avoiding contract –

SC said at this stage, M only had to show reasonably arguable that had caveatable interest - Would be fully determined at trial where evidence, not yet tested, would be tested - On (untested) facts, SC said reasonably arguable that H’s failure to allow access to property on 8 January had necessary material effect on prospect of fulfilling condition – Appeal allowed – Order that caveat not lapse.

New Zealand Court of Appeal

Constructive trust – Entitlement to Lotto winnings

Chinappa (Cs) v Narain (N)  [2022] NZCA 183 (12 May 2022) Kós P, Woolford and Dunningham JJ

Partly successful appeal from decision finding N was the owner of winning Lotto ticket and held equitable interest in property registered in names of the Cs – Parties were mother and siblings in close-knit family living at property - Property purchased with Lotto winnings and borrowings by the Cs - Cs later trespassed N and mother when relationship broke down – N claimed equitable interest – HC found N was owner of Lotto ticket, had made financial contributions to property and had 50 percent equitable interest by way of constructive trust – CA found: (i) N won Lotto prize – Family operated communally and mother’s claim to have won not unusual – Most compelling evidence of ownership was control N permitted over funds; (ii) HC erred in awarding N a 50 percent interest given contributions of 20 percent – N granted 20 percent share in property and allowance for occupation rent for period she was forced out – HC also erred in leaving open possible claim by mother for life interest

Defamation – Qualified privilege – Honest opinion – Costs

Stringer (S) v Craig (C) [2021] NZCA 168 (9 May 2022) Courtney, Woolford and Mander JJ

Unsuccessful appeal from decision finding respondents not liable in defamation; successful appeal against costs – Proceeding by S, board member of Conservative Party, against C and Party officials relating to statements made in aftermath of resignation of Party’s press secretary – HC found S was defamed but respondents had made out defences of qualified privilege, truth and honest opinion - Ordered S to indemnify C (who was self-represented) for legal fees – Appeal issues included whether HC erred in: declining to allow S to raise sexual harassment issue relying on consent judgment while allowing C to raise this in defence; upholding various defences including the way S’s conduct was characterised and proportionality of C’s response – CA upheld HC findings on defamation defences and liability – HC erred in award of indemnity costs – As self-represented lay litigants Cs entitled to reasonable disbursements but not indemnity costs under High Court Rules - Disbursements remitted to HC

Criminal law – Health & Safety in Employment - Sentence - Reparation

Ocean Fisheries Limited (OFL) v Maritime NZ [2022] NZCA 164 (5 May 2022) Collins, Lang and Mallon JJ

Unsuccessful application for leave to appeal against reparation order – OFL was owner of fishing vessel that sank causing deaths of 3 crew – Pleaded guilty to failing to take reasonable steps to ensure crew safety under HSEA – HC upheld order to pay emotional harm reparation of $505,000 to families – Appeal grounds that Court erred by calculating reparation on “per victim” basis instead of “per family”, not giving credit for compensation paid, failing to require victim impact statement, taking into account OFL’s insurance arrangements and finding culpability was irrelevant – CA declined leave – Calculation on “per victim” basis novel but available approach – Culpability irrelevant - Other grounds fact-specific - No issue of general or public importance –Overall sentence not manifestly excessive

Criminal law – Evidence – Vehicle identification (login required)

A v R [2022] NZCA 154 (3 May 2022) Gilbert, Woolford and Dunningham JJ

Unsuccessful appeal from decision ruling evidence admissible at trial – A and associates charged with murder, GBH and discharging firearm following fatal shooting in drug-related incident – Witness evidence that car of same description as A’s was present at time of shooting – A contested the admission of evidence said to identify vehicle of interest as his, namely: montage of CCTV footage taken before and after shooting between location of shooting and A’s home; evidence of witness whose vehicle was overtaken by vehicle of interest; expert evidence as to make and model of vehicle in footage; police vehicle testing – Challenge based on quality and duration of images and reliability of expert opinion – Admissibility upheld

Criminal law – Propensity evidence (login required)

Z(CA683/2021) v R [2022] NZCA 187 (16 May 2022) Collins, Lang and Mallon JJ

Unsuccessful appeal from decision admitting previous convictions as propensity evidence – Z faced charges of alleged rape of young woman aged 16 in 2007/2008 – Trial issue identification – Propensity offending comprised indecent assault and sexual connection involving 2 young women aged 13 years in 2001 and 2007/2008 – Approach to propensity evidence in identity cases – Issue whether tendency by adult man to have sexual interest in young teenage girls and to act on interest was circumstantial evidence making it more likely Z was offender - Comparison with N v R – Evidence had high probative value on issue whether Z was person with complainant when she alleged she was raped – Admissibility upheld

New Zealand High Court

Dairy cows, grazing fees, stock condition

Avondale Pastoral Limited Partnership v Saunders Dairy Holdings Ltd [2022] NZHC 966 (9 May 2022) Nation J

Unsuccessful appeal from DC - Avondale Pastoral Ltd Partnership (A) grazed 396 dairy cows on property Saunders Dairy Holdings Ltd (SD) leased in Southland - A did not pay third instalment of grazing fees - Complained about cows’ condition at end of grazing - SD claimed outstanding grazing fees and other sums in DC - Avondale, as set off or counterclaim, claimed damages for loss suffered through cows not being looked after –

DC dismissed SD claim for loss suffered through Avondale’s breach of contract to graze 400 cows for slightly longer period than occurred - Dismissed A’s claim for loss allegedly suffered through SD failure to feed cows sufficiently and take reasonable and proper care of stock - SD obtained judgment against A for third invoice, $48,156.14, with interest and costs – A appealed to HC –

HC said not condition of grazing contract that stock be returned in same or better condition - To prove liability cows’ owner had to prove cows’ condition at beginning of winter grazing, that any losses could not be attributed to condition at beginning, and normal stresses of winter grazing and pregnancy - Here, evidence did not show this, partly because of lack of BC scoring - Farmer established provided agreed amount of feed - Farmer did not have burden to prove losses did not result from his neglect – Appeal dismissed.

NZBORA, Armed Offenders’ Squad, Breach of rights

Pere v Attorney-General [2022] NZHC 1069 (16 May 2022) Cooke J

Successful claim for NZBORA breach  –Armed Offenders Squad member’s careless omissions meant P accidentally shot in back - Claimed compensation for breach of s 23(5) New Zealand Bill of Rights Act 1990 (NZBORA) right – Right to be treated with humanity and respect for inherent dignity of person - HC upheld claim - Granted declaration and compensation - Said s 23(5) established minimum standards to be maintained - Serious harm caused to P as detainee - Involved breach of minimum detention standards associated with s 23(5) - Awarded $20,000 compensation.

Supreme Court of Canada

Constitutional law, Canadian Charter, criminal law, automatism

R v Brown [2022] SCC 18 (13 May 2022) 

Unsuccessful appeal from Alberta CA – B consumed alcohol and “magic mushrooms” Calgary, Alberta party - Mushrooms contained psilocybin, illegal hallucinatory drug - B lost grip on reality, left party and broke into nearby home, violently attacking woman inside - Woman suffered permanent injuries - When B broke into another house, couple living there called police – B said no memory of incidents –

B charged with aggravated assault, breaking and entering, and mischief to property - Had no previous criminal record and no mental illness history  - B pleaded not guilty to charges because of automatism, where so intoxicated or impaired that had lost complete control of themselves - Crown said automatism not available because s 33.1 Criminal Code prevented person from using automatism as  defence for crimes involving assault or interference with bodily integrity of another person –

B said s 33.1 violated ss 7 and 11(d) Canadian Charter of Rights and Freedoms - Section 7 guaranteed everyone right to life, liberty and security of the person - Section 11(d) guaranteed everyone right to be presumed innocent until proven guilty - Judge agreed with B and acquitted him - Crown appealed to Alberta CA which convicted him - He then appealed to SC -

SC restored acquittal - Heard case together with Sullivan (below) and rendered judgments at same time – Appeal allowed.

Constitutional law, Canadian Charter, criminal law, automatism

R v Sullivan [2022] SCC 19 (13 May 2022)

Unsuccessful appeal from Ontario CA – S and C committed violent acts while extremely intoxicated from voluntarily taken drugs - Events unrelated, but both argued drugs left them in states of “automatism” – so intoxicated or impaired that lost complete control of themselves –

S overdosed on prescription drug, fell into impaired state and attacked his mother with knife, gravely injuring her - Charged with several offences, including aggravated assault and assault with weapon –

C took “magic mushrooms”, which contained psilocybin - Fell into impaired state, attacked his father with knife and killed him, and seriously injured father’s partner - C tried for manslaughter and aggravated assault - In addition to automatism defence said underlying brain injury also to blame for actions –

Section 33.1 Criminal Code prevented person from using automatism as defence for crimes involving assault or interference with bodily integrity of another person - At their respective trials, S and C said s 33.1 violated ss 7 and 11(d) of Canadian Charter of Rights and Freedoms (Charter) - Section 7 guaranteed right to life, liberty and security of the person - Section 11(d) guaranteed right to be presumed innocent until proven guilty –

In S’s case trial judge accepted was acting involuntarily, but said s 33.1 prevented automatism defence and convicted him – In C’s case, different trial judge said not bound follow previous decisions of same court declaring s 33.1 unconstitutional - Also said C’s brain injury not cause of actions – C convicted -

Both men appealed to Ontario CA – It heard appeals together – CA acquitted S and ordered new trial for C since no actual fact finding about automatism in his case - Crown appealed both rulings to SC –

SC dismissed appeals – unanimously said ruling in another case, heard together with these appeals and whose judgment was rendered at the same time, applied here – In that case SC said s33.1 violated ss 7 and 11(d) of Charter in way that was unjustifiable in free and democratic society and was unconstitutional – Here S could be acquitted because had proven was intoxicated to point of automatism and trial judge had found was acting involuntarily – C could argue automatism defence at new trial – Appeals dismissed.

High Court of Australia

Family law, de facto relationship, breakdown

Fairbairn v Radecki [2022] HCA 18 (11 May 2022)

Successful appeal from Full Court, Family Court of Australia - Concerned meaning of "breakdown of a de facto relationship" for purposes of making property settlement orders pursuant to s 90SM of Family Law Act 1975 (Cth) and whether had been breakdown in parties' de facto relationship –

F and R in de facto relationship from late 2005 or early 2006 - Resided in F's home - Fundamental relationship premise was assets kept strictly separate - F suffered rapid cognitive decline in 2015 - Diagnosed with dementia in 2017 - Family disputes over F’s care led to NSW Civil and Administrative Tribunal (NCAT) appointing NSW Trustee and Guardian (Trustee) to make health and welfare decisions on F’s  behalf and manage  financial affairs - Trustee decided to place  F permanently into aged care facility and resolved to sell  home to fund cost – R opposed sale proposal - Trustee sought property settlement orders from Federal Circuit Court - under s 90SM - Court's jurisdiction to make property settlement orders depended on parties' de facto relationship having broken down - Primary judge imputed to R intention to separate from F, meaning de facto relationship had broken down – Full Court reversed finding –

HC unanimously said parties' de facto relationship had broken down for s 90 M purposes - Term "breakdown" taken to mean "end" or "breakup" - Having regard to all circumstances, HC satisfied parties no longer had relationship as couple living together - Circumstances, in aggregate, demonstrated R’s persistent refusal to make necessary or desirable adjustments that might have evidenced ongoing relationship, therefore marking end of the parties' de facto relationship – Appeal allowed.