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Supreme Court 10 to 16 July

23 July 2020

NZ Supreme Court

Mining in reserves, Reserves Act took Priority over Crown Minerals Act

Rangatira Developments Ltd v Royal Forest and Bird Protection Society of New Zealand Inc [2020] NZSC 66 (15 July 2020)

Unsuccessful appeal - Rangitira Developments Ltd (Rangitira), wanted to develop and operate an open-cast coal mine near Westport - Proposed mine largely within Buller District Council (Council) local purpose reserve - Reserve purpose was water conservation - Royal Forest and Bird Protection Society of New Zealand Inc (Society), opposed the mine - Rangitira had mining permit under the Crown Minerals Act 1991 – However, Rangatira had to make an arrangement with the Council for access to mine site - S 60(2) of the Crown Minerals Act said Council may have regard to any matter it considers relevant in deciding whether to enter into an access arrangement - The Reserves Act 1977 required Council, the reserve’s administering body, to administer it for the purpose for which was held (water conservation) and no other purpose - To extend compatible water conservation purpose, Council had also to protect the reserve’s biological and natural features, and maintain the reserve’s value as a soil, water and forest conservation area -Society said Council required to give effect to these requirements when determining whether to agree to an access arrangement Rangatira sought - Rangitira’s view was Council had to have regard to the Reserves Act when deciding to enter into an access arrangement – However, council could also consider economic and other benefits to the local community - Rangitira applied for declarations saying this – HC agreed with Rangatira -  However, CA allowed Society’s appeal - Said Council had to  give effect to Reserves Act requirements when deciding -  Rangitira was granted leave to appeal to SC - Its principal argument was that mining legislation (such as the Crown Minerals Act) is “special” legislation which prevailed over general legislation such as the Reserves Act -  SC unanimously dismissed Rangitira’s appeal - accepted Rangitira’s argument that the legislation applying to coal mining before the Crown Minerals Act was a code and, in that sense, was “special” legislation - Under that legislation, coal mining in reserves was not constrained by reserves legislation – However, SC said  contrary to Rangitira’s view, that the Crown Minerals Act ended mining legislation’s special status - Council given wide freedom under s 60(2) of the Crown Minerals Act to take into account any relevant matter when determining whether to agree to an access arrangement – Council still had to comply with obligations under the Reserves Act - Nothing in the Crown Minerals Act limited Council obligations under the Reserves Act – Appeal dismissed.

Trans-Tasman Resources Ltd v The Taranaki Whanganui Conservation Board and ors [2020] NZSC 67 (17 July 2020)

Successful leave application – Trans-Tasman Resources Ltd (T-T)  - Appeal raised issues relating to Treaty of Waitangi, Māori customary interests and applicability of tikanga to marine and marine discharge consent applications – SC said  might be assisted by submissions from the Crown relating to these matters - Invited Attorney‑General to intervene - Environmental Protection Authority reserved its position regarding “systemic” issues which may affect its future work – Authority given leave to provide written submissions and/or appear -  Given number of parties and issues, SC proposed to set appeal down for two days.

Supreme Court of Canada

Canadian Charter, right to be tried within a reasonable time, stay

R v Thanabalasingham [2020] SCC 18 (17 July 2020)

Appeal from Quebec CA - Under section 11(b), of Canadian Charter of Rights and Freedoms (Charter) anyone charged with a crime has the right to be tried in a reasonable time – Thanabalasingham (T) charged with second-degree murder of his spouse in 2012 - Before trial scheduled, the Crown wanted to change the charge to first-degree murder - Preliminary hearing took over a year - Also were other delays - Trial set for 2017 - Before it was going to start, T said his right to be tried in a reasonable time had been breached - He asked for a stay of proceedings - Trial judge agreed and ordered the stay - CA majority agreed – SC unanimously agreed that T’s right to be tried in a reasonable time was breached - It said the proceedings should be stayed – Appeal allowed.

Judicial Committee of the Privy Council

insurance, liability

Presidential Insurance Company Ltd v Twitz and anor [2020] UKPC 20 (20 July 2020)

Unsuccessful appeal from Trinidad and Tobago CA - On 27 February 2011 a vehicle was involved in an accident –  G drove the vehicle with Mr Tenia (T) as a passenger - T died three months later as a result of injuries sustained in the accident - First Respondent was T’s mother - She brought proceedings against the R as the vehicle owner and Presidential Insurance Company (P) as vehicle insurer - A trial of certain preliminary issues was directed - Judge said R owned the vehicle and that, at the relevant time, P was the insurer - She rejected P’s case that R not the vehicle owner, and that the insurance policy was avoided by material non-disclosure - On appeal, Trinidad and Tobago CA upheld the trial judge’s judgment – PC agreed with CA – Would not interfere with concurrent fact findings except in limited circumstances - Appeal dismissed.

Singapore Court of Appeal

Negligence, new allegation, abuse of process

JWR Pvte Ltd v Edmond Pereira Law Corp and anor [2020] SGCA 68

Unsuccessful appeal from HC – Edmond Pereira (EP) were JWR’s counsel in Original Suit – Assistant Registrar struck out Original Suit - JWR then commenced Negligence Suit against EP, alleging that EP were negligent in their advice to the JWR and in their conduct of the Original Suit - Following trial, HC dismissed the Negligence Suit in its entirety - On appeal, JWR’s new counsel said it would not be dealing with HC findings - Instead, sought to rely on a single new allegation of negligence against EP which was not raised during the trial JWR sought leave from CA to raise new point on appeal and to amend its Statement of Claim to plead the new allegation – CA said, among other things that to approach CA as if it were a second trial court would be an abuse of the appeal process – Appeal dismissed.

UK Supreme Court

Reflective loss, asset stripping, personal liability, tort - procuring violation of rights, causing loss by unlawful means

Sevilleja v Marex Financial Ltd

Successful appeal  - Sevilleja owned and controlled two companies (the Companies) incorporated in the British Virgin Islands (BVI) - Marex Financial (M) brought proceedings against the Companies for a sum due under contract - Commercial Court Judge awarded US$5.5 million and £1.65 million in costs to M - Both parties received judgment confidentially before it was due to be handed down six days later - In this interim, S allegedly procured the offshore transfer of US$9.5 million from the Companies’ London accounts to his personal control – By the end of August 2013 the Companies’ assets were US$4,329.48 and M could not receive payments awarded in the judgement – In December 2013 the Companies placed into liquidation in BVI with debts alleged to have exceeded US$30 million –M sought damages from S personally in tort for (1) including or procuring the violation of M’s rights under the judgment and orders (2) intentionally causing it to suffer loss by unlawful means – The sums claimed were (1) the judgement debt, interest and costs awarded by the trial judge, less any amount M recovered in US proceedings (2) costs incurred by M in its attempts to obtain payment – S argued that the claim in respect of (1) was barred by the “reflective loss” principle (RLP) – the Supreme Court unanimously allowed the appeal – RLP established that diminution in the value of a shareholding or in distributions to shareholders, which is merely the result of a loss suffered by the company in consequence of a wrong done by the defendant not damage which is separate and distinct from damage suffered by the company, and is therefore not recoverable – However, where a claim is brought by a shareholder or anyone else for loss that does not fit within that description RLP would not apply – Here M a creditor and not a shareholder -  RLP does not apply – Appeal allowed.

Last updated on the 23rd July 2020