New Zealand Law Society - Supreme Court roundup 7-15 October

Supreme Court roundup 7-15 October

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New Zealand Supreme Court

Murder, sentencing discount for guilty plea, personal characteristics

Smith v R [2020] NZSC 106 (7 October 2020)

Unsuccessful leave application – S pleaded guilty to murder of his former partner - Murder took place in November 2012 - Plea entered in September 2013 after a sentencing indication – M sentenced to life imprisonment with MPI of 17 years - He appealed against sentence to CA saying 17 years’ MPI excessive - Appeal dismissed – Sought leave to appeal to SC – Grounds were discount level for guilty plea in s 104 Sentencing Act, case discount for personal characteristics - Said both were points of public importance – Also said substantial miscarriage of justice would arise if leave not given – SC agreed discount for guilty plea in s 104 cases an issue worthy of leave grant - But as CA identified, a real issue as to whether it truly arose here - Also a real question of whether discount for personal characteristics arose – Application dismissed.

Indecent assault, conviction

Ratnam v R [2020] NZSC 107 (7 October 2020)

Unsuccessful leave application – R convicted after a jury trial of four charges of indecent assault and one of sexual violation involving digital penetration - Acquitted on one other charge of sexual violation - Sentenced to two years and four months imprisonment - Appealed to CA against both conviction and sentence - Both appeals dismissed – Sought leave to appeal to SC against conviction only – R represented himself – Did not suggest any point of public importance arose – Leave application based on substantial miscarriage of justice may have occurred, or may occur unless appeal heard – Criteria for leave grant not met – Application dismissed.

Self- represented, security for costs, strike-out

Newlands v Nelson City Council [2020] NZSC 108 (8 October 2020)

Unsuccessful leave application – N, representing herself, filed an application for leave to SC against CA - CA declined her appeal to review Deputy Registrar’s decision not to dispense with security for costs on her appeal to CA against HC strike-out decision - HC had earlier said had no jurisdiction to hear an appeal against DC decision declining to make a pre-trial ruling under Declaratory Judgments Act 1908 on whether s 57(2) Dog Control Act 1996 imposed strict liability – SC said leave criteria not met - No question of general or public importance arose out of the approach to security for costs and no risk of miscarriage of justice – Application dismissed.

Successive recall applications

McGeachin v R [2020] NZSC 109 (12 October 2020)

Unsuccessful recall application – M convicted following a jury trial in 2013 for offences of physical and sexual violence committed against two former partners between the late 1980s and 2011 - On 14 September 2020, SC dismissed M’s second application for recall of SC judgment of 24 February 2017, which dismissed application for extension of time to apply for leave to appeal against conviction and dismissed the application for leave to appeal against sentence – Before SC decision M unsuccessfully applied to CA to recall its 2015 decision on his appeal – CA considered affidavits in the original appeal as well as further affidavits supporting recall application. M’s third recall application to SC - Also applied to adduce evidence, which he said contradicted complainants’ evidence at trial and Crown submissions to SC in the leave judgment – Third recall application not the time to attempt to adduce further evidence – If M wanted to pursue the matter it might be more appropriate to do so under the Criminal Cases Review Commission Act 2019 – Application dismissed.

Supreme Court of Canada

Employment law, constructive dismissal, reasonable notice, bonus payment

Matthews v Ocean Nutrition Canada Ltd [2020] SCC 26 (9 October 2020)

Successful appeal from Nova Scotia CA – From 1997, M, an experienced chemist, occupied several senior management positions with Ocean Nutrition Canada Limited (ONC) – As a senior executive, M was part of Ocean’s long term incentive plan (LTIP), a contract designed to reward employees for their previous contributions and to provide an incentive to continue contributing to the company’s success - Under the LTIP, a “Realization Event”, such as the sale of the company, would trigger payments to employees who qualified under the plan - In 2007, Ocean hired a new Chief Operating Officer, who began a campaign to marginalize M, limiting M’s responsibilities and lying to M about his status and prospects with Ocean - Despite his problems with senior management, the LTIP was a key reason for which M wanted to stay with ONC, anticipating it would soon be sold. However, M eventually left Ocean in June 2011, taking a position with a new employer – Just over a year later, ONC sold for over half a billion dollars - Because M did not work there anymore, ONC said it did not owe him the bonus payment – M said he would have still been working there if ONC had not “constructively dismissed” him. - Trial judge said that M was constructively dismissed - Said should get 15 months of “reasonable notice” – Said M would have received the bonus payment if he was still working at ONC – Said M should still get it since ONC sold during the reasonable notice period - Bonus was about $1 million – CA majority agreed M was constructively dismissed - Agreed notice period should be 15 months - But said he did not have a right to the bonus after he left the company – M appealed to SCC – All SCC judges agreed that M should get the bonus payment - Said reasonable notice should be 15 months, like the trial judge said - M should get compensation because he did not get notice. The Compensation should include the bonus payment - This was because ONC sold, and the bonus payment triggered, during the notice period - SCC also said ONC not honest with M about his future with the company- However, did not get extra compensation for this, because he only asked for the bonus, which he already got as part of reasonable notice – Appeal allowed.

United Kingdom Supreme Court

Arbitration, forum, law of the seat

Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38

Unsuccessful appeal from CA – On 1 February 2016, fire seriously damaged a power plant in Russia - Russian company (“Chubb Russia”) insured the power plant owner (owner) against such damage - Owner contracted with another company (head-contractor), regarding construction work to be carried out at the plant - Head-contractor engaged Enka Insaat Ve Sanayi (“Enka”), a Turkish engineering company, as a sub-contractor in the construction project – Contract between the head-contractor and Enka included an agreement that disputes would be determined through arbitration proceedings in London - In May 2014, the head-contractor transferred its rights and obligations under the contract to the owner - After the fire, Chubb Russia paid the owner’s insurance claim and, by doing so, assumed any rights of the owner to claim compensation from third parties, including Enka, for damage the fire caused – In May 2019, Chubb Russia brought a claim against Enka in Russia - In September 2019 Enka brought an arbitration claim in the HC in London arguing that, by proceeding in the Russian court, Chubb Russia was in breach of the arbitration agreement, and seeking an anti-suit injunction to restrain Chubb Russia from pursuing the Russian claim - HC dismissed Enka’s claim on the primary ground that the appropriate forum to determine to scope of the arbitration agreement was the Russian court – On appeal, CA overturned HC decision - Said unless there had been an express choice of law that to govern the arbitration agreement, the general rule should be that “law of the seat”, as a matter of implied choice, governed the arbitration agreement - No express choice here - English law therefore governed arbitration agreement - Appropriate to grant an anti-suit injunction to restrain Chubb Russia from pursuing the Russian claim - Chubb Russia appealed to SC – SC majority said where an English court must decide which system of law governed an arbitration agreement, it should apply the English common law rules for resolving conflicts of laws - According to common law rules, the law applicable to the arbitration agreement would be: (i) the law the parties expressly or impliedly chose; or (ii) in the absence of such choice, the system of law “most closely connected” to the arbitration agreement – To determine whether the parties have made a choice of law, the court should construe the arbitration agreement and the contract containing it by applying English law contract interpretation rules as the law of the forum - Where parties have not specified the law applicable to the arbitration agreement, but they have chosen the law to govern the contract containing the arbitration agreement, this choice will generally apply to the arbitration agreement – This general rule encouraged legal certainty, consistency and coherence while avoiding complexity and artificiality - CA wrong to find a “strong presumption” that the parties had, by implication, chosen the law of the seat of the arbitration to govern the arbitration agreement – Majority said contract here had no choice of law intended to govern the contract or the arbitration agreement within it – Therefore agreement validity and scope governed by the law of the chosen seat of arbitration, law with which the dispute resolution clause most closely connected - The seat of the arbitration was London - Majority upheld CA conclusion that English law governed the arbitration agreement, but for different reasons – Appeal dismissed.

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