New Zealand Law Society - Courts roundup 18 August - 24 August 2022

Courts roundup 18 August - 24 August 2022

Courts roundup 18 August - 24 August 2022

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

New Zealand Supreme Court

Trusts, attempt to remove trustee

Mason v Triezenberg and ors [2022] NZSC 99 (22 August 2022)

Unsuccessful leave application – M applied for leave to appeal CA judgment dismissing appeals from two HC judgments - In 1994 Mr and Mrs M instructed accountant to form family trust for their personal assets - In 2012 Mrs M diagnosed with early-stage degenerative dementia - In 2013 M’s appointed T (one of their children) as their attorney for property affairs, personal care and welfare - Further trust also settled –

In 2015 Mrs M certified mentally incapable - Discord arose between M and T over care arrangements and trust administration - In 2016 family mediation held, and settlement agreement reached - In 2017 respondents instituted proceedings to remove M as trustee – In 2018 M tried to remove respondents as trustees and appoint son in their place – HC judge had “no doubt”  M “primary cause and source of the problem” - Removed M and Mrs M as trustees - On appeal CA largely agreed with HC reasoning –

On leave application, SC said proposed appeal grounds intensely fact specific - No general principle calling for review – No prospect of substantial miscarriage of justice – Application dismissed.

New Zealand Court of Appeal

Contract for sale and purchase, cancellation, specific performance

Mao v Singh [2022] NZCA 390

Appeal against a judgment ordering specific performance of an agreement for the sale and purchase - Mao was to sell the property to the respondent,  Singh, with vacant possession -  the property was subject to a fixed-term tenancy -  Mao insisted that Singh had to take the property subject to the tenancy and would not complete the sale on any other basis - on the settlement date,  Mao issued a settlement notice and later purported to cancel the Agreement on the basis that Singh had not tendered settlement - despite her breach of the Agreement by not providing vacant possession, she maintained that her settlement notice was valid and the cancellation of the Agreement was effective - the High Court found she had not been entitled to issue a settlement notice and to cancel the Agreement when Singh had not settled in accordance with her notice - HELD: Singh’s failure to tender settlement and his failure to make a claim for compensation had not entitled Mao to give a settlement notice – the fact Singh had not cancelled the Agreement in response, did not mean he was obliged to settle on her terms - specific performance had often been considered the appropriate remedy to enforce agreements for the sale and purchase of real estate - the property represented a development opportunity, which  Mao had been prepared to sell on a rising market -  there was no reason why specific performance should not be ordered – Singh had not been given any details of any existing tenancies and the Agreement provided for vacant possession -  Singh had no obligation to make inquiries about the tenancy in the circumstances – the appeal was dismissed.

Leave to appeal a pre-trial decision, sexual offending against two complainants, joinder, severance and propensity evidence

R (CA73/2002) v R [2022] NZCA 377

Appeal by R against the joinder of criminal charges – R was charged with sexual offending against two intoxicated teenagers at separate parties – the District Court noted that the issue at trial would be whether there was an absence of consent or that R had a reasonable belief in consent – joinder had been granted on the basis the two complaints were closely connected in time and circumstance, with striking similarities between the events - HELD: the probative value of the proposed propensity evidence was not outweighed by the risk of unfair prejudice – it was highly relevant and cross-admissible - the evidence on each rape charge was  relevant to and admissible in respect of the other - the practicalities of the criminal process supported the joinder - hearing the charges together would save court resources and mean that witnesses would only have to give evidence once - the joinder of the charges would not result in unfair prejudice to R - it would be an affront to justice and common sense if separate trials were ordered in respect of each complainant, only for the other complainant to give supporting propensity evidence on that charge and vice versa  - the appeal was dismissed.

Appeal against refusal to continue interim name suppression

S (CA284-2022) v R [2022] NZCA 383

S appealed against the refusal to continue interim name suppression  - S and her partner were charged with manslaughter - their trial was scheduled to commence in the High Court in  October 2023 - an application for suppression must be determined on a two-stage basis – first, the Court must determine whether any of the threshold requirements set out in s200(2) Criminal Procedure Act 2011 had been made out – if yes, the Court must then consider how it should exercise its discretion by balancing the identified threshold interests against the need for transparency in criminal proceedings  - an online petition had been created seeking to persuade the Crown to charge S and G with murder rather than manslaughter, and to seek crowd funding to assist the victim’s family - HELD:  the protection of fair trial rights required interim suppression to continue until trial  - S and G had received abusive and threatening messages and comments on social media  before charges were laid – that also extended to S’ employer and parents – the  messages and posts would have been distressing for S and her family and ignored her right to the presumption of innocence –  however, messages and comments did not jeopardise her fair trial rights - the creation of the online petition was an attempt to directly influence the criminal justice process – if the interim suppression was lifted, there was a significant risk that the campaign against G and S would immediately escalate - online activity was likely to increase in both intensity and scope - if such material found its way into the mainstream news media it would  attract a much wider audience, including the jury pool - the appeal was allowed.

Real estate agents, commissions

Soft Technology Jr Ltd v Jones Lang Lasalle Ltd [2022] NZCA 353

Appeal against a High Court decision which awarded commission to the respondent real estate agency,  Janes Lang Lasalle, in respect of two commercial leases – the real estate agency had introduced Auckland Tourism, Events and Economic Development Ltd to the property,  which was looking to attract international film production projects to Auckland – Soft Technology entered into a lease with a movie studio  - the commission on the lease was paid  - after the initial lease expired, Soft Technology entered into further leases with Auckland Tourism, Events and Economic Development - HELD: the real estate agency had failed to provide a written copy of the agency agreement as required by the Real Estate Agents Act 2008 – therefore, it was not entitled to commission on the subsequent leases - introduction by a real estate agent had to occur in a context where the party introduced was interested in leasing (or purchasing) the property – the real estate agent  had brought the property to lessee’s  attention -  if it were relevant, the High Court’s finding that the real estate agency had effected an introduction that qualified it for commission on the subsequent leases would have been upheld.

New Zealand High Court

Local government law, rating, valuation

Gisborne District Council v Bushmere Trust [2022] NZHC 2085 (22 August 2022) Palmer J and W Reid (lay member)

Successful appeal from Land Valuation Tribunal – BT owned 5.859 hectare property northwest of Gisborne - Licence from Zespri Group Ltd (Zespri) to grow and sell highly valuable kiwifruit known as SunGold, Gold3 or G3 kiwifruit - For rating purposes, Land Valuation Tribunal (Tribunal) said licence value should be deducted from property’s capital value, valuing it at level equivalent to green kiwifruit orchard – Council, in test case with support from Valuer-General, appealed  - HC said property’s capital value, proxy for fair market value, included value enhanced by licence, which in practice ran with land - Under Rating Valuations Act 1998 (Act), property’s rateable value included licence value – HC said Act text interpretation consistent with relevant case law and rating regime purpose – Appeal allowed.

High Court of Australia

Judicial review, immigration, s 501 Migration Act, domestic violence

Nathanson v Minister for Home Affairs and Anor [2022] HCA 26 (17 August 2022)

Successful appeal from Full Court FCA – Issue whether Administrative Appeals Tribunal (AAT) denial of procedural fairness to N material, depriving realistic possibility that AAT decision could have been different if fair hearing provided, resulting in jurisdictional error –

In 2018, Minister for Home Affairs delegate cancelled N’s visa under s 501(3A) Migration Act 1958 (Cth) - Another Ministerial delegate decided under s 501CA(4) not to revoke visa cancellation - N applied to AAT to review decision – AAT affirmed decision – Said required to comply with "Ministerial Direction 79" - Direction prescribed as factor (when assessing "primary consideration" being protection of Australian community from criminal or other serious conduct) "[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed" - Not disputed that AAT denied N procedural fairness because misled N regarding significance of certain changes Ministerial Direction 79 made to factors applicable to AAT decision – Also not disputed that N not given opportunity to give or adduce evidence or to make submissions on way two domestic violence incidents should have affected AAT consideration of protecting Australian community –

Judicially reviewing AAT decision, FC at first instance, and Full FC majority on appeal, said denying procedural fairness affecting AAT decision not material, and not jurisdictional error –

HC unanimously said denying procedural fairness material, and did constitute jurisdictional error – Majority said in many, if not most, cases where applicant deprived of chance to make submissions on relevant topic, reasonable conjecture from established facts about decision-making process will readily show reasonable possibility that outcome would have been different - Here, additional evidence and submissions directed to mitigating significance of domestic violence evidence could realistically have affected outcome - No need for N to establish nature of any additional evidence or submissions that might have been presented at hearing – Appeal allowed.

Media law, publication, Internet

Google Llc v Defteros [2022] HCA 27 (17 August 2022)

Successful appeal from Victoria CA - Appeal primarily concerned whether, by operating internet search engine which, in response to user-designed search query, provided search results including link to webpage containing defamatory matter, G published defamatory matter –

In early 2016, D became aware that inputting name as search query in G’s search engine returned a search result (Search Result), which hyperlinked to article The Age newspaper published in 2004 (Underworld article) - Alleged Underworld article defamed D, although no suggestion Search Result itself defamatory - D requested G to remove Search Result – G did not - D commenced proceedings, claiming damages for defamation G, as Search Result publisher of Underworld article  –

Trial Judge said Underworld article defamed D, as did CA – G said to have published defamatory matter because providing Search Result instrumental to communicating Underworld article content to user, as lent assistance to publication - Courts below partly rejected G’s reliance on statutory and common law defences of innocent dissemination and qualified privilege –

HC majority said G did not publish defamatory matter – Said G did not assist The Age in communicating defamatory matter contained in Underworld article to third party users – Providing hyperlink in Search Result merely facilitated access to Underworld article - Not act of participation in bilateral process of communicating article contents to third party - No other basis for finding publication because G had not participated in writing or disseminating defamatory matter - There being no publication, majority said unnecessary to consider G’s defences – Appeal allowed.

Migration law, visa cancellation, “character test” NZ citizen, time extension for appeal

Katoa v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs and Anor [2022] HCA 28 (17 August 2022)

Unsuccessful originating application seeking writs to quash, and require remaking of FC decision to refuse extension of time for K to seek judicial review of ministerial decision to cancel K’s visa –

New Zealand citizen K held Class TY Subclass 444 Special Category (Temporary) visa – Minister cancelled visa under s 501(3)(b) Migration Act 1958 (Cth) (Act) because Minister reasonably suspected K did not pass character test and satisfied visa cancellation in national interest - K did not apply to FC to review decision within time allowed under s 477A(1) Act - K later applied to FC under 477A(2) Act for time extension to file application for review - Under s 477A(2) extension could only be granted if FC  satisfied extension necessary in interests of administration of justice - Primary judge heard time extension application concurrently with underlying substantive judicial review application - Dismissed time extension application – Not persuaded that single review ground in proposed substantive application had any merit – Act subsections 476A(3)(b) and (4) meant K not able to appeal primary judge’s decision to refuse to grant time extension – Dismissing application, HC said in determining what is necessary in interests of administration of justice for s 477A(2) purposes, often appropriate to assess proposed review ground merits at "reasonably impressionistic level" - However, can be circumstances where appropriate for FC to engage in more than impressionistic assessment - Within FC jurisdiction to have regard to that factor, manner it considered appropriate in circumstances - Permissible, and here appropriate, for primary judge to assess whether proposed appeal  ground had any merit in order to decide time extension application – Application declined.

Patent, manner of manufacture, invention character, divided court

Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29

Unsuccessful appeal from Full Court FCA – ATA manufactured electronic gaming machines (EGMs) - Owned four innovation patents relating to EGMs – Patent specifications described claimed invention as combination of player interface and game controller - Both contained part of common general knowledge - Also described triggering of feature game from base game using configurable symbols – These elements, part of game controller, not part of common general knowledge – After Commissioner examination each patent revoked because none of claims in any innovation patent was manner of manufacture –

ATA successfully appealed revocation to FCA - Primary judge said claimed invention not mere scheme and was patentable subject matter - Full Court majority allowed appeal, saying while claimed invention computer-implemented, was not technology advance in computer technology - Therefore not patentable –

ATA appealed to HC – HC unanimously said s 18 Patents Act 1990 (Cth) imposed threshold requirement of an invention - Only question assessing whether manner of manufacture existed under s 18(1) or (1A) whether manner of manufacture within s 6 Statute of Monopolies - Court divided proper characterisation of ATA’s invention - Three Justices would have dismissed appeal, saying nothing other than claim for new system or gaming method of gaming - Three Justices would have allowed appeal, characterising invention as EGM incorporating interdependent player interface and game controller with feature games and configurable symbols - Where HC equally divided in opinion, s 23(2)(a) Judiciary Act 1903 (Cth) required decision appealed from to be affirmed – HC dismissed appeal.

United Kingdom Supreme Court

Proceeds of crime, CV fraud, proportionality

R v Andrewes [2022] UKSC 24 (22 June 2022)

Successful appeal from CA – Case concerned confiscation under Proceeds of Crime Act 2002 (POCA) for CV (curriculum vitae) fraud, where job applicant lied about qualifications and consequently employed and paid salary - Question whether confiscation order be made to strip fraudster of earnings - In particular, would such confiscation order be disproportionate under s 6(5) of POCA?

A successfully applied to be CEO at hospice  - Claimed to have university degrees and significant relevant work experience – Appointed CEO in 2004 and remained 2015 when employment terminated - Would not have been appointed had truth about education and job experience been known - In 2006, A told staff had obtained PhD had been working towards – Untrue - Insisted from then be referred to as Dr A -  Did good job as CEO and regularly appraised as either strong or outstanding –

Using same or similar lies, also appointed to two other remunerated roles - In 2017 A pleaded guilty to one count of obtaining pecuniary advantage by deception and two counts of fraud - Sentenced to two years’ imprisonment - Following conviction, Crown sought confiscation order – A’s full net earnings during relevant period were £643,602.91 – “Available amount” (amount criminal had free to pay confiscation order) and hence “recoverable amount” agreed to be £96,737.24, and judge ordered confiscation of that sum - A appealed - CA allowed A’s appeal - No confiscation order – CA certified question of whether or not confiscation order in such circumstances would be disproportionate as point of law of general public importance - Crown appealed to SC –

SC unanimously allowed appeal – Said disproportionate to order confiscation of full net earnings here - No deduction for value of services rendered would amount to “double confiscation” and penalty - Reasoning did not extend to cases where, different to here, rendering services illegal - Arose, for example, if surgeon performed operations without required qualifications - Then would not be disproportionate to confiscate full net earnings –

However, contrary to CA, SC said unacceptable for no confiscation order to be made - When considering proportionality, court should seek to confiscate difference between higher earnings obtained through fraud and lower earnings if there had been no fraud – Consequently, A would have to give up any “profit” he made through his lies, but account would be taken of fact that his employers did receive value in  form of services rendered, in exchange for paying his salary – Adopted principled “middle way” in contrast to either “take all” (Crown advocated) or CA “take nothing” approach –

Applied here meant confiscation order of £244,568 proportionate (assuming not exceeding recoverable amount) - But as, on facts, recoverable amount only £96,737.24, SC said confiscation order amounting to £96,737.24 proportionate – SC allowed Crown’s appeal and, but for different reasoning, allowed judge’s confiscation order.