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Supreme Court 6 to 12 June

18 June 2020

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Unconsionable bargain, undue influence

Hurlimann v Nowland [2020] NZSC 54 (9 June 2020)

Unsuccessful leave application – Applicant H  received cash equal to half the value of their former matrimonial home from N when their marriage ended - N had brought the home to the marriage - During an attempt at reconciliation, H subsequently returned about 80 per cent of the payment to Ms Noland - Attempted reconciliation failed – H wanted money back - Sought leave to appeal against refusals in Courts below -  In HC he posed three causes of action: resulting trust, unconscionable bargain and deceit - Only the second pursued in CA and SC - difficulty not with the relevant undue influence principles, but how they applied here - application dismissed.

Jurisdiction, lack of

Main v NZ Police [2020] NZSC 55 (12 June 2020)

Unsuccessful “leave” application - M filed document with the Registry headed “Statement of Claim Ex Parte Quash all Infringement Notices numbers, PR3744073, &, PR3743518, Dated, 21/3/2020 As of Right” - Infringement notices both issued for driving a vehicle at a speed exceeding the speed limit - Document sought quash infringement notices - Registrar advised M Court only jurisdiction to consider applications for leave to appeal against decisions of lower courts - Therefore no jurisdiction to consider M’s document – Not satisfied M applied for “review” of the Registrar’s decision - Registrar referred the document M filed to a panel of leave judges – They treated document as application for leave to appeal against the infringement notices issued – Court pointed out in an earlier decision relating to M, Court’s jurisdiction in criminal proceedings governed by s 71 of the Senior Courts Act 2016 - Section 71(a) provided that, in relation to criminal proceedings, Court’s jurisdiction to determine applications for leave to appeal and appeals authorised by Part 6 of the Criminal Procedure Act 2011 - In the present case no lower Court decision against application for leave to appeal can be initiated – M’s document asks the Court to do something that it does not have jurisdiction to do - application for leave to appeal dismissed because Court did not have jurisdiction to consider it.

High Court of Australia

No decisions released during this period.

Supreme Court of Canada

Conseil scolaire Francophone de la Colombie-Britanique v British Columbia [2020] SCC 13

Appeal from British Columbia Court of Appeal - Canadian Charter of Rights and Freedoms, includes rights that protect the use of Canada’s official languages, English and French - Section 23 is about the right to go to school in English or French -  People whose first language is the minority language in a province, or who went to primary school in that language, can send their children to school in that language - Section 23 does not say exactly how many children is enough for different levels of services - It also does not say how good the education in those schools has to be - Conseil scolaire francophone de la Colombie-Britannique was British Columbia’s French-language school board -  Board and some parents said B.C. had not done enough for French-language schools in the past - It wanted the government to fix school buildings and property and to build new schools because the number of students was going up - It said the government’s laws and policies breached the French-speaking community’s language rights under section 23 - B.C. said there were not enough students for new schools and existing schools were good enough - It also said it would cost too much to provide all the services the school board wanted - Trial judge said there were enough children for a school in some, but not all, parts of B.C. - By not providing those schools, B.C. breached the French-speaking community’s rights under section 23 - She said this did not mean B.C. had to build new schools right away – However, she said it had to pay $6 million in damages for not funding school buses, though - CA agreed with the trial judge but said the government didn’t have to pay the $6 million – The Board appealed to SC – A majority said the lower courts interpreted section 23 of the Charter too narrowly -  Said school helped preserve the language and culture of official-language minorities – It set out a way to decide what kinds of programmes and services minority-language students should get - In general, it said they should get their own school if the government gave one to the same number of majority-language speakers somewhere in the province - This would promote fairness and make sure public funds were spent wisely - In B.C., it meant there were enough students to justify eight new French-language schools - Also a trial court should decide about one more school - Majority said all children deserve the same opportunities - That means minority and majority-language students should get the same quality and experience at school - Under section 1 of the Charter, certain rights could be limited, but only if the limit was reasonable and could be justified in a free and democratic society - Majority said it would be very difficult to justify a limit for section 23 -  Already limited because the right depended on there being enough students. Plus, it requires the government to spend money on schools.  So the majority said that saving money wasn’t a good enough reason to justify breaching section 23 - Majority also said governments could not avoid paying damages for decisions based on their policies – This was to ensure they respected people’s rights - Here B.C. had to pay the $6 million for not funding school buses - Also had to pay $1.1 million because it had not given the school board enough money for rural schools.

Hong Kong Court of Final Appeal

No decisions released during this period.

Judicial Committee of the Privy Council

No decisions released during this period.

Supreme Court of Ireland

Minister for Justice and Equality, Ireland and Attorney-General v X  [2020] IESC 30 (9 June 2020)

Successful “leapfrog” appeal from HC – Key issue was the extent or breadth of the definition of “child” in s. 56(9) of the International Protection Act 2015 (“ the Act of 2015”) for the purpose of family reunification and whether definition could include a minor said to be the child of the applicant for family reunification but not a biological or adopted child -Trial judge said the Act of 2015 and, in particular, s. 56 contained no definition of the word “child” and concluded that the word “child” bore a wider meaning than a biological child – Amicus Curiae UNHCR contended the word “child” as used in s. 56(9)(d) of the Act of 2015 should be given a broad interpretation - family reunification an important aspect of ensuring that a person granted refugee status or international protection is able to start a new life in the country to which they have come with the support of their family - Recognised in various international instruments and in domestic law - Apart from international obligations arising through United Nations membership relevant EU Directives which touch on the issues, not to mention the provisions of the European Convention on Human Rights and in particular Article 8 - Family reunification is an important part of legal system relating to asylum and international protection - Key issue at the heart of this case concerns the definition of “child” as that phrase is used in s. 56(9)(d) of the Act of 2015 - Word “child” could only refer to biological/adoptive child of the sponsor - Literal and ordinary meaning - That that is so is reinforced by an examination of the historical background to the legislation concerned -c lear that rather than introducing a broader meaning of the word “child” in the section, the overall effect of the section was restrictive in terms of those to whom family reunification could apply-  Here serious doubt arose as to the paternity of the two children in respect of whom X sought family reunification - Serious doubt created by X himself in correspondence with the INIS - Appropriate to seek DNA testing to establish the relationship between X and the children concerned - Where he refused to undergo such testing, Minister entitled to draw an inference from that fact and to refuse the application. Appeal allowed.

Singapore Court of Appeal

No decisions released during this period.

Supreme Court of the United Kingdom

No decisions released during this period.

Supreme Court of the United States

Civil Rights Act 1964, Homosexual rights, discrimination

Bostock v Clayton County, Georgia 17-1618 (15 June 2020)

Appeals from 11th, 2nd and 6th Circuits -  In each case, an employer allegedly fired a long-time employee simply for being homosexual or transgender - Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming”of a county employee shortly after he began participating in a gay recreational softball league -  Altitude Express fired Donald Zarda days after he mentioned being gay -  R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman” -Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964 - Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay so Bostock’s suit could be dismissed as a matter of law - Second and Sixth Circuits allowed the claims of Zarda and Stephens to proceed – SC  6-3 majority said an employer who fires an individual merely for being gay or transgender violates Title VII - Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin” - Parties conceded that the term “sex” in 1964 referred to the biological distinctions between male and female - Employers contended that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons - While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message - Instead, they seemed to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime - This Court has long rejected that sort of reasoning. The employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33. No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623

Last updated on the 18th June 2020