New Zealand Law Society - Supreme Court Roundup 28 August to 2 September

Supreme Court Roundup 28 August to 2 September

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

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Supreme Court of New Zealand

Sexual offending, calling complainant’s mother, trial judge jury directions

Crook v R [2020] NZSC 28 August 2020

Unsuccessful leave application -  C convicted of five charges of sexual offending against a child and was sentenced to three years and three months’ imprisonment - Was in a relationship with the complainant’s mother - Crown case was that offending occurred at times when mother absent or asleep - Complainant told her mother about  applicant’s conduct considerable time after the relationship ended -  On hearing about issues, mother initially told complainant that she would be required to take a lie detector test - Complainant frightened and retracted her allegations, saying the whole story was a joke - applicant appealed conviction to CA on two grounds:(a) Trial Judge should have directed Crown to call complainant’s mother as a witness; and (b) Trial Judge’s jury directions in summing up not sufficient to deal with risks from complainant’s evidential video interview (EVI) being played to jurors a second time before closing addresses – CA rejected both grounds – C sought leave to appeal to SC – On lack of contemporaneous directions when the EVI was replayed, there might be circumstances where further guidance would assist judges confronted with a jury request to that effect - SC not satisfied this was case for further consideration – On failure to call complainant’s mother, CA applied settled authority to the facts - no matter of general or public importance, nor was there a substantial risk of a miscarriage of justice - Leave denied.

Application for recall

Barton v R [2020] NZSC 87 (31 August 2020)

Unsuccessful application for recall of Barton v R [2020] NZSC 84) – SC said general rule that  judgment, once delivered, must stand for better or worse - Three categories of cases where a judgment could be recalled: legislative amendment or a new development in case law of “high authority”; counsel failure to draw attention to relevant statutory provision or caselaw; or “where for some other very special reason justice requires that the judgment be recalled” – SC had already considered and rejected most matters B sought to raise - None of recall grounds made out - Application dismissed.

Strike out, bankruptcy, security for costs

Hill v Māori Trustee [2020] NZSC 88 (1 September 2020)

Unsuccessful leave application – H sought leave to appeal to SC against CA judgment striking out his appeal - appeal to CA was against order adjudicating him bankrupt on 10 September 2019 – H failed to pay security for costs re appeal - Had not applied for security for costs to be dispensed with -  Did not file case on appeal within time - Appeal deemed abandoned in January 2020 -  Māori Trustee before then filed application to strike out the appeal based security for costs not being paid – Asked that application to be dealt with, rather than appeal being deemed abandoned - CA said it was plain from litigation history that all avenues to challenge underlying debt had been exhausted - no apparent error in Associate Judge’s decision and clear that H’s appeal had no merit – SC said issues raise all related to particular circumstances of H’s case - No matter of general or public importance arose – No miscarriage of justice – Application dismissed.

Appeal continuing despite appellant’s death

Ellis v R [2020] NZSC 89 (1 September 2020)

Ruling that appeal can continue after appellant’s death – E convicted, in HC trial in 1993, of several counts of sexual offending against seven child complainants - Applied to SC for leave to appeal against CA decision dismissing his appeal against conviction - Also applied for extension of time to apply - On 31 July 2019, SC granted both applications  -  SC practice was reasons not given for granting the application for leave to appeal but brief reasons given regarding time extension - On 4 September 2019 E passed away - Raised whether appeal should continue despite his death - SC heard argument on this issue on 14 November 2019 and 25 June 2020 - Second hearing addressed relevance of tikanga to continuing appeal - SC ruled appeal to continue despite E’s death.

United Kingdom Supreme Court

International telecoms, UK jurisdiction, forum conveniens

Unwired Planet International Ltd and anor v Huawei (UK) Ltd and anor; Huawei Technologies Co Ltd and anor v Conversant Wireless Licensing SARL; ZTE Corporation and anor v Conversant Wireless Licensing SARL [2020] UKSC 37

Successful appeals from CA - Appeals raised matters important to the international telecommunications market - First (in all three appeals) was whether a court in the United Kingdom (“UK”) had jurisdiction and could properly exercise a power, without the agreement of both parties, to (a) grant an injunction to restrain the infringement of a UK patent where the patented invention was an essential component in an international standard of telecommunications equipment, which was marketed, sold and used worldwide, unless the implementer of the patented invention enters into a global licence of a multinational patent portfolio, and (b) determine royalty rates and other disputed terms of such a global licence – Second, a dispute (in the Conversant appeals) over whether England was the appropriate forum to determine those matters - Thirdly, (in the Unwired appeal) a question as to the nature of the requirement that the licence, which the owner of a Standard Essential Patent (“SEP”) offered to an implementer, be non-discriminatory - Fourthly, (again in the Unwired appeal)  whether court should refuse to grant the owner of such a SEP an injunction on the ground that it has breached EU competition law because it had not complied with a Court of Justice of the European Union (“CJEU”)  judgment - Fifthly, the appeals raised more general question about where it was appropriate for an English court to grant a prohibitory injunction or to award damages instead – SC unanimously dismissed both appeals – Full Court confirmed that the contractual arrangements gave English courts jurisdiction to determine the terms of a global license of a multi-national patent portfolio – English courts appropriate forum (“forum conveniens”) – Licence not discriminatory – U had not breached European competition law – Actions not abuse of dominant position – SC said no basis on which it could properly substitute an award of damages for the injunction granted in U appeal and upheld in CA -  No risk that U or C could use the threat of an injunction as a means of charging exorbitant fees, since they could not enforce their rights unless they offered to license SEPs on terms which the court was satisfied relevant undertaking - Moreover, damages award not an adequate substitute for an injunction here – Appeals allowed.

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