New Zealand Law Society - Courts roundup 23 June - 29 June 2022

Courts roundup 23 June - 29 June 2022

Courts roundup 23 June - 29 June 2022

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

New Zealand Supreme Court

Extended supervision, public safety orders, inconsistency with NZBORA

Attorney-General and anor v Chisnall [2022] NZSC 77 (22 June 2022)

Successful leave applications – Leave granted to appeal and cross-appeal two CA decisions - Approved questions: (a) Whether CA correct to make declarations Part 1A of Parole Act 2002 [extended supervision orders] and Public Safety (Public Protection Orders) Act 2014 [public safety orders] inconsistent with s 26(2) New Zealand Bill of Rights Act 1990 [Bill of Rights]; and (b) Whether CA correct not to make declarations  extended supervision orders and public safety orders inconsistent with ss 9, 22, 23(5), 25(a), (c) and (d), and 26(1) Bill of Rights –

Attorney-General did not seek to challenge finding extended supervision and public safety orders penalties for purposes of protection in s 26(2) Bill of Rights against imposition of second penalty - Rather, argument in support of appeal would focus on appropriateness of making declarations when, on Attorney-General’s case, discretionary powers to make extended supervision and public safety orders could and had to be interpreted consistently with Bill of Rights – Applications allowed.

Right to practise law, TTMRA

Little v NZ Law Society [2022] NZSC 78 (23 June 2022)

Unsuccessful leave application – L practised law in New South Wales as solicitor (from 1999) and as barrister (from 2011) - In 2012, applied under Trans-Tasman Mutual Recognition Act 1997 (TTMRA) to be admitted to roll of barristers and solicitors of High Court of New Zealand - Admitted in August 2012, but did not, at same time, seek or obtain practising certificate to practise on own account from New Zealand Law Society | Te Kāhui Ture o Aotearoa (NZLS) –

In 2020, moved to New Zealand - Applied to NZLS for practising certificate to practise on own account as barrister - By then New South Wales practising certificate lapsed - NZLS refused  application because L no longer held current practising certificate in Australian state as TTMRA required – L sought judicial review of decision -  Said, properly understood, combined effect of Lawyers and Conveyancers Act 2006 (LCA) and TTMRA was that once admitted in New Zealand, entitled without further action to New Zealand practising certificate –

Courts below did not accept analysis - Said LCA and TTMRA required all applicants to complete two steps to practise law in New Zealand: be admitted to roll of barristers and solicitors and (separately) obtain practising certificate from NZLS, on payment of necessary fee – Applied for leave to appeal CA decision –

SC accepted TTMRA interpretation may give rise to questions of general or public importance, but not here – No real risk substantial miscarriage would occur – Application dismissed.

Co-governance, judicial review

Tūpuna Maunga O Tāmaki Makaurau Authority v Norman and ors [2022] NZSC 79 (27 June 2022)

Unsuccessful leave application - Tūpuna Maunga o Tāmaki Makaurau Authority (Authority) co-governance entity that administers the 14 maunga in Tāmaki Makaurau - Established under interim Treaty claims redress provided by Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 - Authority comprised six members representing mana whenua iwi and six members appointed by Auckland Council | Te Kaunihera o Tāmaki Makaurau –

Authority decided to remove 345 mature exotic trees from Ōwairaka (Mount Albert) and  replant maunga with indigenous species - Residents sought judicial review of decision - Application unsuccessful - On appeal to CA residents succeeded on two of three grounds – CA set aside Authority’s decision to remove exotic trees and Council’s granting of resource consent for removal - Authority applied for leave to appeal to SC –

SC said CA decided matter on relatively narrow procedural issue and adopted orthodox approach – Did not see decision affected integrity or efficacy of the Tāmaki Collective settlement or co-governance arrangements generally – Case turned on own facts – Application declined.

Charities, charitable status

Attorney-General v Family First New Zealand [2022] NZSC 80 (28 June 2022)

Successful appeal from CA - Family First New Zealand (FF) registered as charity in 2007 – FF objects in trust deed to promote and advance research and policy supporting marriage and family, educate public on certain issues, participate in social debate on matters affecting families, and produce and publish materials on those topics - FF believed traditional marriage (permanent union of man and woman) best model for delivering societal benefits associated with stable family life - Effects these principles by, inter alia, commissioning research reports, proposing legislative reforms aligning with its views, hosting conferences, and collating information on website –

On 15 April 2013, Charities Registration Board (Board) decided FF no longer qualified for charitable registration under Charities Act 2005, because expressing one-sided views on issue not educational, and FF’s main purpose was political - On 6 August 2014, SC decided in Re Greenpeace of New Zealand Inc  that having political purpose no longer bar to obtaining charity registration - Board reconsidered decision in light of Greenpeace, but said again FF should be deregistered –

FF appealed Board’s second deregistration decision unsuccessfully to HC – CA majority reversed decision – Attorney-General appealed to SC –

SC unanimously allowed appeal, saying FF no longer qualified for charitable registration – Said FF crossed line between education and advocacy - Nor did Family First qualify on general community benefit grounds - Purposes discriminatory — Advocated for measures to prefer traditional family to others’ disadvantage - Even more fundamentally, purposes involving discriminatory elements not compatible with charity – Appeal allowed.

New Zealand Court of Appeal

Ombudsman – Judicial review

Financial Services Complaints Limited (FSCL) v Chief Ombudsman (CO) [2022] NZCA 248 (15 June 2022) Cooper, Courtney and Goddard JJ

Successful appeal concerning decision of Chief Ombudsman refusing permission to use name “ombudsman” in connection with FSCL’s approved dispute resolution scheme – HC set aside most recent refusal on basis it was predetermined and directed reconsideration by temporary ombudsman or other delegate – Appeal issues: (i) whether Judge failed to adjudicate grounds relied on (that CO failed to treat like applicants alike and to consider whether refusal was justifiable limitation on freedom of expression under s14 NZBORA); (ii) whether Judge erred in not granting substantive declaration that FSCL was entitled to use name “ombudsman” - CA found CO was required to treat like applicants consistently unless there was valid reason not to – There was no rationally justifiable basis for distinguishing FSCL’s from like schemes - Refusal was also unreasonable limitation on s14 right – CO failed to recognise public interest framework of scheme and erred in finding use of “ombudsman” would undermine office of Parliamentary Ombudsman - Only lawful decision available was to grant permission sought – Declaration granted.

Sale of land – Overseas Investment Act (OIA)

Future Sustainable Development Limited (purchaser) v Liu (vendor) [2022] NZCA 249 (14 June 2022) Miller, Goddard and Duffy JJ

Successful appeal from decision upholding vendor’s cancellation of agreement to sell sensitive land after purchaser waived OIA condition before date specified for fulfilment – Agreement conditional on purchaser and/or nominee obtaining OIA consent with either party having right to cancel if condition not fulfilled by specified date – Each party entitled to waive condition inserted for its “sole benefit” - Vendor who had received higher offer for land sought declaration she had lawfully cancelled agreement - Purchaser sought specific performance – HC held condition was inserted for benefit of both parties and could not be waived by purchaser alone – Vendor was entitled to cancel – CA found OIA condition was for sole benefit of purchaser which was entitled to waive condition before fulfilment date – Order for specific performance granted.

Civil procedure – Vexatious litigants

Siemer (S) v Complete Construction Limited [2022] NZCA 262 (22 June 2022) Gilbert, Courtney and Goddard JJ

Successful and partly successful appeals concerning effect of transitional provisions of Senior Courts Act (SCA) on civil restraint orders made under s88B Judicature Act (now repealed) – S subject to order under s88B preventing him from instituting civil proceedings without leave – CA considered whether s88B order should be treated as having duration of 3 or 5 years under SCA provisions and whether terms of order ran from date it was made or date SCA came into force – Considered divergent responses in Rafiq v Whata and Siemer v NZLS – CA found giving “full effect” to order “as if” it had originated under the SCA required treating order as being for 3 or 5 year term – Satisfaction of s88B threshold not determinative of “exceptional circumstances” for purposes of SCA – Effect of transitional provision that term of orders limited to 3 years running from date order made – Orders setting aside/remitting proceedings for reconsideration and for costs and disbursements on appeals.

Criminal law – Distributing objectionable publication (login required)

G v R [2022] NZCA 242 (13 June 2022) Clifford, Venning and Moore JJ

Unsuccessful appeal against conviction for distributing objectionable publication – Messages on portable device contained URL hyperlink to the manifesto posted by Christchurch mosque attacker shortly before attack – G challenged DC findings on s147 application to dismiss charge that: possession was not an element of the offence of distribution but if it was, G was in possession of publication; G had “distributed” the publication either by “offering” it (sending link directly facilitating access under s122(1)(a) FVP Classification Act) or providing access (s122(1)(b)) – CA upheld DC findings – Possession not element of offence of distribution – G provided access to manifesto in terms of s122(1)(b) by sending URL address in form used to access document – Conviction confirmed.

Criminal procedure – Search and seizure (login required)

X v R [2022] NZCA 254 (20 June 2022) Goddard, Simon France and Hinton JJ

Unsuccessful appeal from decision upholding admissibility of evidence - “Warrant preference” rule – Elderly couple charged with knowingly using altered document with intent to deceive – Allegedly removed notification of moisture defects in LIM report to sell house – Police initially doubtful of couple’s involvement spoke to couple at home – Subsequently undertook DVD interview following arrest – Laptop searched without seeking warrant on basis of urgency, risk due to couple’s awareness of police interest in laptop and concern regarding their age - CA agreed warrantless search was lawful and reasonable – Prior to home visit police lacked credible basis for believing electronic device would be found and could not have obtained warrant – Real risk evidence could have been concealed or destroyed if warrant obtained following interviews - Admissibility upheld.

Supreme Court of Canada

Taxation, avoidance, family trusts

Canada (Attorney General) v. Collins Family Trust [2022] SCC 26 (22 June 2022)

Successful appeal from British Columbia CA - Rite-Way Metals Ltd and Harvard Industries Ltd  (companies) wanted to avoid paying taxes on some assets - Canada Revenue Agency (CRA) guidelines said s 75(2) of Income Tax Act allowed companies to avoid taxes on dividends if paid to family trust – Here trusts created in 2008 for Collins and Cochran families –

A few years later, in unrelated case, Tax Court of Canada interpreted s 75(2) differently - Effect was family trusts owed taxes on dividends -

Trusts applied to British Columbia SC to cancel transactions that led to dividends - It agreed - CA dismissed Canadian Attorney General’s appeal on CRA’s behalf – Appealed to SC –

SC majority agreed with CRA interpretation - Said principles of equity and tax law prevented companies from reversing transactions - Taxpayers should be taxed based on what actually agreed to do and did, not what could have done or later wished had done, SC said – Appeal allowed.

Public interest standing, Canadian Charter

British Columbia (Attorney General) v. Council of Canadians with Disabilities [2022] SCC 27 (23 June 2022)

Unsuccessful appeal from British Columbia CA - SC asked if Council of Canadians with Disabilities (Council) qualified for public interest standing in lawsuit - Public interest standing allowed individuals or organisations to bring legal issue in public interest to court even when not directly affected - Happened often in cases concerning Canadian Charter of Rights and Freedoms (Charter), where issues might broadly affect society as whole. - Council not-for-profit organization working for rights of people living with disabilities in Canada –

In 2016, Council and two individuals challenged constitutionality of British Columbia’s mental health legislation - Allowed doctors to administer psychiatric treatment to patients with mental disabilities without consent or consent of someone else on behalf - Council and people who experienced treatment without consent said law violated ss 7 and 15(1) Charter -Section 7 guaranteed everyone right to life, liberty and security - Section 15(1) said everyone had right to be treated equally without discrimination, including on basis of mental or physical disability –

In 2017, individuals withdrew - Left Council to continue case - Council sought public interest standing from British Columbia’s SC – Trial judge said Council failed to meet relevant test because two individuals and facts of their experiences no longer part of lawsuit - Council appealed to British Columbia CA – CA said judge mistaken to find case had no factual context – British Columbia Attorney-General appealed to SC –

SC unanimously ruled Council had public interest standing, met test, and could continue lawsuit – Appeal dismissed.

United Kingdom Supreme Court

Proportionality, appellate court’s role

In the matter of H-W (Children) and H-W (Children) No 2 [ 2022] UKSC 17 (15 June 2022)

Successful appeal from CA – Appeals concerned care orders relating to C, D and E, aged 14, 11 and nine respectively - Appellants children’s mother, M, and partner, F3 - M had three other children - Eldest A, aged 22, and B, aged 19, both independent and lived outside  family unit - M also had young child, F, with F3 - Other children in family unit had different fathers - C and D’s father referred to as F1, whilst E’s father F2 - C, D and E lived at home with  mother and F3, who acted as their stepfather - F also lived in family home –

A's conduct triggered proceedings here - Troubled young man - Social services expected M to prevent A from staying in family home and being unsupervised around children - - When at house on 18 November 2019, A sexually abused E whilst M and F3 distracted - Not reported to social services until 21 November 2019 - In March 2020, local authority issued court proceedings, seeking care orders, removal from home of C, D, E and F - Local authority argued M and F3 failed to protect E and other children from A and failed to notify social services when abused E in home - Local authority’s initial application for emergency protection order to remove C, D and E  refused - However, non-molestation order made against A which inter alia prevented from coming to family home –

On 26 July 2021, judge decided care orders should be made for C, D and E, but F’s case should be adjourned – Majority CA decision upheld judge’s decision –

M and F3 appealed – SC refined appeal grounds into two questions concerning care orders for C, D and E - First, to decide whether orders proportionate, was it necessary for judge as matter of law to assess likelihood that if left in M’s care, (a) children would suffer sexual harm; (b) consequences of such harm; (c) possibility of reducing or mitigating risk of such harm; and (d) comparative welfare advantages and disadvantages of options presented - Second, whether judge erred in law by failing to make  proper assessment of those matters –

SC unanimously allowed M and F3’s appeals and remitted cases for rehearing – Meant different judge will make fresh decision on ultimate outcome for C, D and E –

– No challenge to primary fact findings or judge saying legal threshold for making care order crossed - Instead, M and F3’s appeals concerned whether judge erred in third stage of analysis: to find care orders necessary and proportionate - Real issue adequacy of judge’s reasoning process to reach conclusion –

SC said process judge adopted flawed as did not adequately assess prospects of various options to mitigate sexual harm risk - Not appropriate for SC as appellate court to conduct fresh assessment - Only realistic course to remit the case for rehearing – Appeal allowed.

United States of Supreme Court

Constitutional law, abortion

Dobbs, State Health Officer, Mississippi Department Of Health, et al v Jackson Women’s Health Organization et al 597 U. S. (2022)

Successful appeal from 6th Circuit CA - Mississippi’s Gestational Age Act (Act) provided “[e]xcept in a medical emergency or in the case of a severe foetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Respondents—Jackson Women’s Health Organization, an abortion clinic, and one of its doctors—(J) challenged Act in Federal District Court, alleging violated US Supreme Court precedents establishing constitutional right to abortion, in particular Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 - District Court granted summary judgment in favour of J and permanently enjoined Act’s enforcement, reasoning Mississippi’s 15-week restriction on abortion violated SC cases forbidding States to ban abortion pre-viability - Fifth Circuit affirmed – Before SC, petitioners defended Act on grounds that Roe and Casey wrongly decided and that Act constitutional because satisfied rational-basis review –

SC majority said Constitution did not confer right to abortion; Roe and Casey overruled; and authority to regulate abortion returned to people and their elected representatives - Critical question whether Constitution, properly understood, conferred right to obtain abortion - Casey’s controlling opinion skipped over question and reaffirmed Roe solely on stare decisis basis - Proper stare decisis application required assessing strength of grounds on which Roe based – Appeal allowed.