New Zealand Law Society - Courts roundup 15 September - 21 September 2022

Courts roundup 15 September - 21 September 2022

Courts roundup 15 September - 21 September 2022

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

New Zealand Supreme Court

Judicial review, local government, parking

Vandervis v Dunedin City Council and anor [2022] NZSC 110 (16 September 2022)

Unsuccessful leave application - Dunedin City councillor V received $12 parking ticket - Upset as paid for hour’s parking and had not noticed 30 minute maximum because the P30 sign not visible from meter - Complained to Council employee then complained to Chief Executive (CE) – Employee complained about V - CE engaged B to investigate – B reported to CE – Code of Conduct report about V followed – Council accepted investigation findings and censured V –

V commenced judicial review proceedings against Council – Unsuccessful in HC and CA – Applied for leave to appeal to SC – V challenged all B’s findings in HC and CA, including technical challenges about procedure adopted - However, SC leave application sought to challenge only finding that V attempted to influence Council employee in order to benefit his own, or his family’s, personal or business interest –

SC said V wanted to challenge fact findings that were particular to case and raised no point of public importance – No appearance of miscarriage in way lower Courts dealt with point – Application dismissed.

New Zealand Court of Appeal

Trusts and trustees, fiduciary duties, estate planning

D and E Ltd v A [2022] NZCA 430

Deceased father had gifted principal assets (worth approximately $700,000) to Trust – Trustees accepted father owed fiduciary duties to his children not to abuse them when they were children – At issue was whether the father owed fiduciary duties to his adult children at the time he gifted his principal assets to the Trust – Nature and scope of duties – 30 year estrangement – Resulting frustration of any claim under the Family Protection Act 1955 – HELD: (majority decision) fiduciary relationship between father and children did not continue after children reached adulthood – No breach of fiduciary duty and respondents could have no proprietary claim to the Trust assets – Appeal allowed.

Human Rights Review Tribunal, right to privacy

Guo v Culpan [2022] NZCA 432

Appeal against High Court refusal of application for review of various interlocutory decisions made by the Human Rights Review Tribunal – G employed by PwC and asked to undertake an occupational health assessment – G seen by Dr C – Over 5 years later G requested a copy of her file from Dr C and complained to the Privacy Commissioner believing there was material missing – G filed statement of claim in the Tribunal alleging intentional delay by C and missing material – Second complaint to Privacy Commissioner claiming Dr C collected and disclosed G’s personal and health information to PwC without her consent, causing her to lose her job – G refused to be cross-examined in Tribunal – HELD: G’s ability to bring proceedings before the Tribunal was contingent on there having been an investigation conducted in relation to any action alleged to have been an interference with the person’s privacy – Narrow nature of first complaint – Appeal dismissed.

Appeal against sentence, sexual offending (historic and recent)

Rihari v R [2022] NZCA 437

R sentenced to 12 years 9 months imprisonment on 26 charges of sexual offending against five complainants (aged between 7 and 16 years old at time of offending) – Historical offending between 1967 and 1981, and more recent offending between 2006 and 2008 – Whether sentencing Judge failed to make an adjustment for totality when adopting overall starting point, and failed to afford sufficient discounts for personal factors outlined in s27 Sentencing Act 2002 report – HELD: Judge considered totality principle in fixing starting point for more recent offending – Overall starting point of 17 years imprisonment not excessive and not out of all proportion to the gravity of offending – Causal link between factors identified in s27 report and R’s offending extended to all of R’s offending – 10 percent discount was inadequate and 15 percent discount more appropriate – However, generous 15 percent discount given for R’s advanced age and health – Not persuaded total discount of 25 percent for personal factors was too low – Appeal dismissed.

New Zealand High Court

Sentencing, murder, injuring with intent

R v Wallace [2022] NZHC 2390 (16 September 2022) Cooke J

Sentencing – Was sentenced for W’s murder - Also sentenced on number of other charges pleaded guilty to, including injuring with intent, threatening to kill relating to W and others – MPI 15 and half years for murder in domestic relationship - Starting point 17 years for MPI reduced by one year for guilty pleas, and six months for social/cultural factors.