New Zealand Law Society - Courts roundup 16 June - 22 June 2022

Courts roundup 16 June - 22 June 2022

Courts roundup 16 June - 22 June 2022

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

New Zealand Supreme Court

Self-represented applicant, habeas corpus

Warahi v Chief Executive of Department of Corrections [2022] NZSC 75 (17 June 2022)

Unsuccessful leave application – W, who also went by two other names, sought leave to appeal against CA decision dismissing appeal against HC refusal of habeas corpus writ - On remand for charges of contravening protection order, common assault, threatening to kill and injuring with intent to injure - Underlying application challenge to enforceability of statute charges brought under against W, as tangata whenua – SC previously rejected similar challenges - Proposed appeal did not raise any issue of general or public importance - No indication that substantial miscarriage of justice may have occurred in refusing habeas corpus – Application dismissed.

Partnership, documents in mandarin, cultural issues

Deng v Zheng [2022] NZSC 76 (20 June 2022)

Unsuccessful appeal from CA – D and Z had working relationship from late 1990s – In 2004, D acquired ownership interests in projects carried out through companies with which Z involved, including Bella Vista Drive development–Related agreement was April 2008 Bella Vista Agreement, written in Mandarin - Parties named were (a) “Orient Construction Group” (comprising companies associated with Z and D) with 60 percent stake in venture and (b) J with 40 percent stake – Z’s case was he and D were partners with each other and with J in this venture,  notwithstanding references in document to companies – Central to case was set of internal accounts –

By 2015, Z and D’s business relationship strained – In May,  agreed to separate business interests - Negotiations about separation recorded in document titled “Principles in Separation” –

Primarily at issue nature of Z and D’s business relationship between 2010 and 2015 - Z said from March 2010 he and D were partners – D said no overarching partnership and contended projects  carried out through companies with the two men’s interests reflected in their shareholdings and account balances –

In HC, D successful – HC concluding (among other matters) no partnership – CA overturned HC saying relationship a partnership – CA placed significant weight on internal accounts and Principles in Separation document –

D appealed to SC - Approved question whether CA correct to make declaration there was partnership in which D and Z equal partners and consequential orders – SC also said might be necessary to consider issues about “the cultural setting in an arrangement between two Chinese parties” - New Zealand Law Society | Te Kāhui Ture o Aotearoa intervened after consulting NZ Asian Lawyers –

SC unanimously dismissed appeal – Said how Bella Vista Project operated explicable only on basis that Z and D participated personally as partners with relevant companies effectively acting as nominees – Said from April 2008 partnership regarding their 60 per cent interest in Bella Vista - From 1 April 2010, partnership extended to all projects two parties were or came to be involved in, other than one project which was accounted for differently - Court recognised advantages trial judge had over appellate court assessing evidence but satisfied that trial Judge’s critical fact findings here were wrong –

Cultural issue of primary importance was significance of 关系(guānxi), which could refer to interpersonal connections - Material provided to Court on guānxi provided some support for Z’s case - But Court satisfied that strength of inferences from contemporaneous documents such that case favoured Z without reliance on cultural issue –

SC also commented about cases where one or more of parties had cultural background which differed from judge’s -Judgment provided guidelines for cases where appropriate for judge to receive evidence of material bearing on social and cultural framework within which protagonists in case may have been operating – Appeal dismissed.

New Zealand High Court

Declaratory relief, nature of

Grounded Kiwis Group Inc v Minister of Health and ors [2022] NZHC 1407 (15 June 2022) Mallon J

Declaratory relief - Judgment follow on from substantive judgment delivered 27 April 2022 - Substantive judgment said GK entitled to declaratory relief – This judgment explained relief terms for NZBORA breach.

Trial adjournment, counsel health issues

R v Benbow [2022] NZHC 1355 (17 June 2022) Dunningham J

Successful application for adjournment – HC said primary consideration fair trial rights - Application prompted by medical incapacity of not one but two of B’s defence team – Preservation of fair trial paramount consideration – Had to prevail over all others – Application granted.

Judicial review, electricity transmission pricing

Manawa Energy Ltd v Electricity Authority and ors [2022] NZHC 1444 (20 June 2022) Palmer J

Unsuccessful judicial review application - ME (formerly Trustpower Ltd) challenged Electricity Authority (EA) 2020 decision to make guidelines for Transpower to develop electricity transmission pricing methodology – NZ Steel Ltd, Nova Energy Ltd and Fonterra Co-Operative Group Ltd supported challenge - EA and Meridian Energy Ltd opposed. 

HC said challenge failed - EA did not err in interpreting statutory objective or role - No evidence EA decision biased or pre-determined – EA use of cost-benefit analysis not unlawful - Challenges largely reflected challengers' disagreement with decision and sought to draw Court into economic merits of the decision – EA’s role, not Court's to assess competing policy arguments merits – Application dismissed.

High Court of Australia

Superannuation fund management, “binding” precedent

Hill v Zuda Pty Ltd  as Trustee for the Holly Superannuation Fund & Ors [2022] HCA 21 (15 June 2022)

Unsuccessful appeal from Western Australia CA - Zuda Pty Ltd (Zuda) trustee of “Self-managed superannuation fund” (SMSF) Holly Superannuation Fund (Fund) – S and M fund members and Zuda director – Fund trust deed amended in 2011 to insert clause described as "binding death benefit nomination" – Under clause, if either fund member died, Zuda required to distribute whole deceased member's fund balance to surviving member – S died on 22 November 2016 – H, S’s only child, commenced proceeding in Western Australian SC, saying binding death benefit nomination clause had no force and effect because did not comply with reg 6.17A Superannuation Industry (Supervision) Regulations 1994 (Cth) –

SC summarily dismissed proceeding, said reg 6.17A did not apply to SMSFs - CA dismissed appeal against summary dismissal – CA adopted construction of reg 6.17A South Australian SC Full Court expressed – Said bound to follow "seriously considered dicta" of intermediate appellate court unless convinced other court's reasoning "plainly wrong" – H appealed to HC -

HC said reg 6.17A, properly construed, did not apply to SMSF - Construction consistent with extrinsic reg 6.17A purpose materials – CA correct in conclusion, but ought to have reached conclusion construing reg 6.17A for itself - Intermediate appellate courts and trial judges not bound to follow obiter dicta of other intermediate appellate courts, although ordinarily expected to give great weight to them – Appeal dismissed.

Sexual offences, indefinite detention, release “on licence”

Hore v R [2022] HCA 22 (15 June 2022)

Two successful appeals from South Australian CA - Concerned operation of s 59 Sentencing Act 2017 (SA) (Act), which allowed SC to authorise release "on licence" (that was, with conditions attached) of person subject to indefinite detention order –

H and W subject to indefinite detention orders under s 57 Act predecessor - Each applied for, and refused, release on licence - Primary judges in applications said "willing" in s 59(1a)(a) meant converse of "unwilling" in s 57(1) ( first issue) - Each primary judge also said SC, in considering whether to release person on licence, could not have regard to likely effect of release on licence conditions on person's willingness to control their sexual instincts (second issue) - CA dismissed both appeals –  Both appealed to HC -

On first issue, HC said courts below adopted correct construction of “willing” - On second issue, HC said courts below erred in construing s 59(1a)(a) as if required determining "willingness" as  condition precedent to final consideration of application for release on licence – Section 59(1)  clear that one determination to be made, being whether person should be granted release on licence – Appeals allowed. 

United Kingdom Supreme Court

Court’s discretion, reconsidering judgment before sealed

AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 (15 June 2022)

Partially successful appeal from CA – Concerned court’s discretion to reconsider judgment and order after given but before court sealed formal order - AIC Ltd (AIC) successful claimant in Nigeria–based arbitration with Federal Airport Authority of Nigeria (FAAN) - FAAN ordered to pay US$48.13m to AIC, plus interest at 18% per annum (Award) - FAAN continued to challenge Award in Nigerian courts (Nigerian Proceedings) -

AIC sought HC permission to enforce Award in England and Wales - Initially granted, but HC set order aside and adjourned claim pending developments in Nigerian Proceedings - Adjournment on condition FAAN provide security of around US$24m through bank guarantee (Guarantee) -

Despite FAAN being granted  extension, Guarantee not provided on time - HC judge (judge) made order permitting AIC to enforce Award (Enforcement Order) - Enforcement Order not sealed immediately -

FAAN obtained Guarantee later same day, provided Guarantee to AIC and applied to judge to re–open judgment and set aside Enforcement Order - Judge set aside Enforcement Order and retrospectively extended time for Guarantee provision -

CA allowed AIC’s appeal against judge’s revised decision and reinstated Enforcement Order – Meant AIC had both unlimited right to enforce Award and benefit of Guarantee as an asset against which to enforce - AIC called on Guarantee, which FAAN’s bank paid in full -

FAAN appealed to SC - Further Award enforcement stayed pending appeal’s outcome –

SC unanimously allowed appeal in part – Said Civil Procedure Rules (CPR) governed case - Overriding objective to “deal with cases justly and at proportionate cost” (overriding objective) - Judge said applying objective in context of deciding whether to re–consider an order not yet sealed question of balance - CA disagreed, ruling that two–stage analysis required: (1) whether right to entertain application to re–consider at all; and, if so, (2) consider application on merits –

SC said both judge and CA only partly right - Previous caselaw showed when faced with application to reconsider judgment and/or order prior to sealing, judge to do justice according to overriding objective - Principle of finality in litigation an important general principle of justice; moreover as defined in CPR, overriding objective included need to enforce compliance with rules, practice directions and orders, which emphasised finality principle’s importance - Principle that parties should not ordinarily be able to raise new arguments after order made where should have raised arguments at relevant hearing –

When determining application to reconsider final judgment and/or order before order sealed, judge should not start from evenly–balanced scales as judge did but should give great weight to finality principle - However, although often a useful mental discipline for judge to ask whether application should be entertained at all, was no rule of law or practice that such application must always be addressed by two-stage process as CA ruled -  Finality principle better reflected by recognising that will always be a weighty matter in balance against making different order, rather than always requiring a two–stage process of analysis  -

SC said Enforcement Order as re-made by CA should be set aside, and AIC’s application for leave to enforce Award should be adjourned to await Nigerian Proceedings outcome - AIC should be entitled to retain proceeds of enforcing Guarantee in the meantime - Appeal allowed in part.