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Supreme Court 17 to 23 July

30 July 2020

NZ Supreme Court

Parole, recall to prison, lawful detention

Ericson v Chief Executive of the Department of Corrections [2020] NZSC 69 23 July 2020

Unsuccessful leave application – E serving sentence of life imprisonment for murder - Released on parole in September 2018, but recalled to prison in March 2019 - Remained in custody – Applied for habeas corpus in October 2019 – HC dismissed application -  Appeal to CA dismissed – Sought leave to appeal to SC leave to  CA said E lawfully detained because  (a) he had been convicted and sentenced to life imprisonment; (b) Recall from parole subject of Parole Board final recall order; (c) Chairperson confirmed Parole Board’s decision on review and (d) HC dismissed E’s appeals against Parole Board and chairperson decisions - Challenge to detention legality based on argument that warrant to recall him could only be made by the Chief Executive or the Commissioner of Police under s 60 of the Parole Act 2002 - In E’s case, Department of Corrections’ Regional Commissioner for the Southern Region  applied for recall - CA satisfied Regional Commissioner held a delegation from the respondent under s 60(1) of the Parole Act and was therefore authorised to apply -  Rejected E’s argument that s 10(a) of the Corrections Act 2004, which prohibits the respondent from delegating the power to make an application for recall to “any staff member of a prison”, prevented the delegation to the Regional Commissioner - Regional Commissioner not staff member of a prison -  E wanted to renew argument about the effectiveness of the delegation to the Regional Commissioner in SC - Said he was prejudiced by CA receiving affidavit from Regional Commissioner as to the authenticity of the notice of application for recall and supporting affidavit that had been provided to the Court – SC said grounds for leave to appeal not met – Leave refused.

Procedure, abuse of process, strike-out

Rachelle v Cadogan and ors [2020] NZSC 70 (24 July 2020)

Unsuccessful leave application – R filed claim in DC seeking damages of $200,000 from the respondents – DCJ struck claim out on 13 May 2020 -  HC said in 12 June Minute said R’s notice of appeal to the High Court against DC decision was an abuse of process and should be struck out under r 5.35B of the High Court Rules 2016 – Judge said notice did not focus on the law relating to strike‑out decisions – Did not attempt to identify a specific error in the way  DC applied the law - Rather, R appeared to think appeal would allow a substantive hearing of her alleged grievances -  also said substantive claim would need to be “fundamentally revisited” – Judge said R “entirely resistant” to the suggestion she revisit the claim – R sought leave to appeal HC decision to SC - Said she wishes to continue her case relying on the Human Rights Act 1993 and her right to freedom of speech - Suggested strike out - ignored the reality of what has occurred - Also said proceedings struck out before an opportunity for mediation, strike-out orders were “inhuman” and went against Central Otago District Council’s code of conduct – Said there was harassment and bullying and Courts below ignored the evidence she put forward – SC said issues Rachelle sought to raise related to the particular facts of her case - Principles relating to strike-out well settled and were applied by both DC and HC - No point of general or public importance arose - Nothing R raised suggested any risk of a miscarriage of justice – Leave criteria not met.

Loan agreement, representation regarding interest rate

ANZ  Bank Ltd v Bushline Trustees Ltd and ors [2020] NZSC 71 (24 July 2020)

Successful appeal from CA - ANZ Bank New Zealand Ltd (ANZ), entered into a loan agreement with trustees of two Bushline trusts (Bushline) -  ANZ advanced $19.47 million to Bushline for a 12 month term - Interest rate was a floating rate (known as BKBM) plus a margin of 0.7 per cent - Interest rate clause stated that the 0.7 per cent margin was “reviewable at any time” - Following onset of the global financial crisis, ANZ increased Bushline’s margin under the loan - Bushline said this was contrary to a representation made, or undertaking given, by ANZ before signing the loan agreement that the 0.7 per cent margin would be fixed for five years - Bushline also alleged other things - These were dealt with in both the HC and CA but were resolved between the parties - Bushline’s claim that ANZ had agreed to fix the 0.7 per cent margin for five years failed in HC, but succeeded in CA – SC unanimously allowed ANZ’s appeal - Said evidence did not show on the balance of probabilities that there was an agreement between ANZ and Bushline on 0.7 per cent margin fix – Appeal allowed.

Contract interpretation, prior negotiation, past conduct

Bathurst Resources Ltd and anor v L & M Coal Holdings Ltd [2020] NZSC 73 (27 July 2020)

Successful leave application – Approved question whether CA correct to dismiss appeal – SC would not deal with contract interpretation principles established previously – Would deal with admissibility or otherwise of evidence of prior negotiations or subsequent conduct and distinction between interpretation and implication and the appropriate test for the latter – Leave granted.

Supreme Court of Canada

Waiver of tort, breach of contract, unjust enrichment

Atlantic Lottery Corporation Inc v Babcock [2020] SCC 19 (24 July 2020)

On appeal from Newfoundland and Labrador – Atlantic Lottery Corporation (ALC) approved video lottery terminals (VLTs) in Newfoundland and Labrador – Babcock and others (plaintiffs) played VLTs - claimed VLTs were inherently dangerous and deceptive - Relying on three causes of action (waiver of tort, breach of contract and unjust enrichment),  they sought a gain‑based award, quantified by the profit ALC earned by licensing VLTs - ALC applied to strike the plaintiffs’ claim on basis that it disclosed no reasonable cause of action – Plaintiffs applied for certification of claim as a class action - Certification judge dismissed ALC’s application, and further held that the plaintiffs had satisfied the requirements necessary for certification - CA substantially upheld the certification judge’s conclusions, and allowed the plaintiffs’ claims in waiver of tort, breach of contract and unjust enrichment to proceed to trial – SC majority said none of plaintiffs’ arguments had a chance of success. Because of this, they said the class action shouldn’t go ahead - All judges agreed that “waiver of tort” did not exist in Canadian law - They said people could be compensated for harm through “disgorgement” but that it could not be the basis for harm - Majority said disgorgement could only be used as compensation in very specific situations, like a broken contract could only be used if other ways of compensating would not work - Majority said this not an “unjust enrichment” case – Appeal allowed.

Last updated on the 30th July 2020