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Supreme courts roundup, 15 to 21 November, 2019

21 November 2019

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

Rolleston v R [2019] NZSC 129 (13 November 2019). Unsuccessful application to cross-examine the foreperson (reasons to follow).

The appellants were found guilty by a jury of sexual offending against a teenage complainant - The appellants appealed their convictions first to the Court of Appeal and then to the Supreme Court on the basis that the trial was unfair, claiming that one of the jurors knew the first appellant’s brother – The SC appointed a barrister to undertake an inquiry as to whether the juror knew the brother and the nature of the relationship – In the light of that report the SC held a second hearing and during the hearing the appellants applied to cross-examine the juror [From a media release].

Pulemoana v R [2019] NZSC 131 (19 November 2019). Successful application for an extension of time for leave to appeal from a judgment of the Court of Appeal.

The Court of Appeal declined the applicant’s appeal against conviction – The applicant was tried before a jury in the HC on two counts of murder – He was found guilty of manslaughter of one victim and murder of the other victim – On appeal, the applicant argued that one juror (Mr X) should have been discharged under s16(3)(b) of the Juries Act 1981 – The mother (Ms Y) of one of the victims said that she recognised Mr X – Mr X’s wife also had Facebook contact with Ms Y – The contact with Mr X had been 14 years earlier and he had attended an antenatal class run by Ms Y – The SC held that both the HC and the Court of Appeal applied the well-established test for juror bias – Whether there was any prospect of success in the proposed argument.

Ioan v Scott Technology NZ Ltd [2019] NZSC 130 (19 November 2019). Unsuccessful application for leave to appeal against a decision of the Court of Appeal that s 67B(1) of the Employment Relations Act 2000 applied to the termination of his employment with Scott Technology NZ Ltd (Scott Technology).

The applicant was employed by Scott Technology on 1 August 2016 subject to a 90-day trial period – The applicant was informed on 7 October 2016 that his employment would end “effective immediately” and he was paid in lieu of working out his notice - Discussion of sections 67A and 67B of the Employment Relations Act – The applicant argued that s67B(1) was not complied with because no proper written notice of termination was given – Whether the criteria for leave met or whether there was a risk of a miscarriage of justice.

Rabson v Judicial Conduct Commissioner [2019] NZSC 128 (18 November 2019).Unsuccessful application for leave to appeal from a decision of the High Court. The Supreme Court removed as a proposed party from the proceeding.

The application relates to the third in a series of judicial review applications challenging the decisions of the Commissioner – On 11 September 2029, the HC struck out the applicants claim for judicial review – Whether there was any challenge to the relevant principles applicable to a strike-out so no question of general or public importance arises.

Reekie v Claimants A & B [2019] NZSC 127 (18 November 2019).Unsuccessful application for leave toappeal against a decision of the Court of Appeal.

The Court of Appeal declined an application for an extension of time to file his case on appeal and also declines to make a direction to the Department of Corrections to remove limits on Mr Reekie communicating with claimant A– In 2016 Mr Reekie and Corrections settled a claim made by Mr Reekie about a breach of the Privacy Act – Claimants A and B made successful claims under the Victims’ Claims 2005 Act on the basis that they were victims of Mr Reekie – They were awarded $25,000 each – Mr Reekie successfully appealed to the HC on the grounds that the claim had not been served on Mr Reekie and that was a breach of natural justice – The matter was referred back to the Tribunal for rehearing and Mr Reekie appealed that part of the decision, however did not comply with the relevant timeframes and unsuccessfully sought an extension to enable him to meet with claimant A to try and settle the claim – Whether an extension should have been granted – Whether the proposed appeal raises any question of general or public importance.

Walls v Ulsterman Holdings Ltd [2019] NZSC 126 (15 November 2019). Unsuccessful application for leave to appeal against a decision of the Court of Appeal.

The applicant was a 50 percent shareholder and sole director in the first respondent company – The company was put into liquidation in August 2016 and the second respondents were appointed as liquidators – The liquidators issued proceedings, alleging breaches of duties imposed on him as a director under the Companies Act 1993 – The applicant took no steps to respond and a hearing was held in the HC where judgment was entered against the applicant for $489,810.06 – Rule 15.10 of the High Court Rules provides that a person against whom judgment is entered by default after a formal proof hearing can apply to have the judgment set aside, but the applicant instead unsuccessfully appealed to the Court of Appeal – The applicant argued that the statement in r 15.9(2), that no notice of a formal proof hearing need to be given to a defendant, should be given an interpretation that is consistent with the New Zealand  Bill of Right Act 1990 – Whether there was sufficient prospect of success in the applicant’s argument succeeding in justifying an appeal.

High Court of Australia

No decisions released during this period

Supreme Court of Canada

R v K.J.M [2019] SCC 55 (15 November 2019). Unsuccessful appeal (majority) from the Court of Appeal for Alberta.

M, a young person under the Youth Criminal Justice Act was charges with various offences out of a fight in which he stabbed another youth – Almost 10 months after the charges were laid, he was found guilty of aggravated assault and possession of a weapon for a dangerous purpose - Shortly before his convictions, he applied unsuccessfully for a stay of proceedings on the basis that the delay violated his right to be tried within a reasonable time under s.11 (b) of the Charter - Whether the youth accused’s right to be tried within reasonable time under s.11 (b) of Canadian Charter of Rights and Freedoms was infringed - R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

R v Shlah [2019] SCC 56 (19 November 2019). Unsuccessful appeal from the Court of Appeal of Alberta.

The charge to the jury did not disclose reviewable error, and the jury’s verdict was not unreasonable – The SC did not, however, endorse para.7 of the majority’s reasons to the extent that it may be taken as suggesting that the reviewing court must identify an extricable error as a precondition to concluding that the jury’s verdict was unreasonable – A determination that the jury’s verdict was unreasonable is itself an error of law warranting appellate intervention.

Michel v Graydon [2019] SCC (18 November 2019). Successful appeal from the Court of Appeal for British Columbia.

R v Javanmardi [2019] SCC 54 (14 November 2019). Successful appeal (majority) from the Court of Appeal for Quebec.

On June 12, 2008, M and his wife visited the accused’s naturopathic clinic - M was 84 years old, had heart disease and was frustrated with the treatment he had received at conventional medical clinics - After an hour‑long consultation, the accused recommended intravenously administered nutrients - M reacted negatively to the injection and he died of endotoxic shock some hours later - The accused was charged with criminal negligence causing death and unlawful act manslaughter – The accused was charged and acquitted at trial in death of patient – The Court of Appeal set aside acquittals — Whether Crown must prove that underlying unlawful act was objectively dangerous to establish actus reus of unlawful act manslaughter — Whether Court of Appeal erred in intervening — Criminal Code,R.S.C. 1985, c.C 46, ss.220, 222(5)(a).

Volkswagen Group Canada Inc v Association québécoise de lutte contre la pollution atmosphérique [2019] SCC 53 (13 November 2019). Unsuccessful appeal (majority) from the Court of Appeal of Quebec.

Whether the Court of Appeal judge erred in exercising her discretion.

R v James [2019] SCC 52 (8 November 2019). Successful appeal (majority) from the Court of Appeal for Ontario.

The majority ordered a new trial for the reasons of Justice Nordheimer, to the extent that he concluded that he concluded there was no breach of s8 of the Canadian Charter of Rights and Freedoms.

Hong Kong Court of Final Appeal

HKSAR v Chau Yui Ming [2019] HCFCA 39 (15 November 2019).Unsuccessful appeal from the Court of Appeal.

The appellant was intercepted by the police and was found with two packets of ice in a sling bag – Inside his flat the police found 10 packets of ice and one packet of ketamine in a black bag – The appellant admitted under caution that the ice belonged to him – The appellant was charged with trafficking and pleaded not guilty, claiming at trail that he was framed and the admission had been obtained by force – The defence submitted that the jury had to be satisfied that the appellant was in possession of both bags before it could convict and the trial judge gave an all or nothing direction to the jury – The appellant was convicted by a majority and appealed on the basis that the judge should have required the prosecution to amend the charge by splitting it into several charges with different scenarios – Whether on a single count of trafficking in dangerous drugs which involves different quantities and types of drugs, and where there is evidence to support a number of possible defence scenarios in trial the prosecution should have applied to amend the indictment to allow for alternative counts of unlawful trafficking in dangerous drugs for the different defence scenarios – If, no, whether the court should direct the jury that it was an ‘all or nothing case’ thereby depriving the jury of other verdicts which could be open to a defendant.

Commissioner of Inland Revenue v Poon Cho-Ming, John [2019] HKFCA 38 (14 November 2019). Unsuccessful appeal from the Court of Appeal.

The Taxpayer was Group CFO and executive director of his employer - On 20 July 2008, they entered into a Separation Agreement, terminating the Taxpayer’s employment - The Taxpayer was (i) paid a sum of money (Sum D) described as taking the place of a discretionary bonus, and (ii) given share options which ultimately resulted in a gain for the Taxpayer (the Share Option Gain) - The appellant assessed these two items to salaries tax - The Taxpayer successfully challenged this at the Court of Appeal, having previously lost before both the Board of Review and the Court of First Instance - Whether Sum D and the Share Option Gain were income “from employment” under section 8(1) of the Inland Revenue Ordinance (Cap 112).

Judicial Committee of the Privy Council

No decisions released during this period

Supreme Court of Ireland

No decisions released during this period

Singapore Court of Appeal

Adinop Co Ltd v Rovithai Ltd [2019] SGCA 67 (15 November 2019). Partially successful appeal against a decision of the High Court.

From the 1990’s to mid-2014, the appellant was the first respondent’s distributor in Thailand for “standard DSM products” – The information in issue relates to two documents which Adinop shared with the first respondents that contained the identities of Adinop’s customers who were purchasing or intending to purchase standard DSM products – Adinop unsuccessfully sued for Breach of a Confidentiality Agreement signed on 22 October 2013 , or in the alternative breach of their obligations of confidentiality arising in equity in relation to the misuse of the Customer Information – Whether Adinop established that Rovithai breached its obligations of confidentiality under the Confidentiality Agreement.

Orion-One Development Ltd (in liquidation) v Management Corporation Strata Title Plan No 3556 [2019] SGCA 66 (15 November 2019). Partially successful appeal and cross-appeal from the High Court.

Both appeals arose from a dispute concerning a development known as Northstar @ AMK (the building), a nine-story commercial building – The management corporation of the building (MCST) brought an action against both the developer of the building (Orion-One) and the main contractor in respect of a number of alleged defects - The claim against Orion-One was brought on behalf of the subsidiary proprietors (SPs) of strata title lots in the building and alleged various breaches by Orion-One of the sale and purchase agreements (SPAs) between Orion-One and the SPs – Whether letters of understanding tendered by MCST were hearsay – Whether the HC Judge correctly exercised his discretion in allowing the MCST to reopen its case – Whether the SPAs required Orion-One to construct the common property of the building with proper care and skill – Whether Orion-One should be liable for design omissions – Whether the issue of mitigation should have been left to the later tranche on the assessment of damages – Whether the Judge erred in rejecting some of MCST’s claims against Orion-One for defective work.

MCH International Pte Ltd v YG Group Ltd [2019] SGCA 68 (15 November 2019). Unsuccessful appeal (CA 67) from the High Court. Partially successful appeal (CA 65). Partially successful appeal (CA 68).

Cross-appeals against the decision of the HC – The dispute related to a joint venture between Mr H Hong and Mr Liong over four gold chain logistics companies in China (the Target Companies) - Mr H Wong represented to Mr Liong that they would be able to exploit the Target Companies’ growth potential by hiring and seconding to the Target Companies some industry veterans in the logistics business (the Core Management Team) - YG Group Pte Ltd (YGG) was incorporated for the purposes of the parties’ joint venture - The shareholding of YGG was divided between YG Logistics Pte Ltd (YGL) and MCH International Pte Ltd (MCH) - On 29 January 2015, the parties entered into several agreements – Whether Mr H Wong and MCH had breached a Deed of Understanding – Whether YGL’s award of interest pertaining to the breach of the Amended Loan Agreement should be increased (CA 68) – Whether YGG,YGL and Mr Liong had engaged in tortuous conspiracy in seeking an order to wind up YGG.

Jurong Primewide Pte Ltd v Crescendas Pte Ltd [2019] SGCA 63 (11 November 2019). Successful appeal by a contractor against a decision of the High Court’s decision to grant a property developer a refund for alleged double-payments. Partially successful appeal by the developer for a rectification error.

Crescendas Bionics Pte Ltd (Crescendas), a property developer, had engaged Jurong Primewide Pte Ltd (Jurong ), a contractor, to build the Biopolis 3 Project - Several disputes occurred between the parties - Crescendas alleged that the $12.3m provided for the preliminaries under the contract was a tentative figure subject to further negotiations - Conversely, Jurong asserted the $12.3m was a fixed sum – The contract was completed, but exceeded the stipulated time of 18 months for Jurong to complete the Project –– The HC held that the $12.3m was a fixed sum - However, if there were any double payments by Crescendas to Jurong for the same preliminaries done by the trade contractors, these had to be refunded to Crescendas (the Refund Ruling) – The HC held that Crescendas was liable for 173 days of delay.

Supreme Court of the United Kingdom

R (on the application of Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council [2019] UKSC 53 (20 November 2019). Unsuccessful appeal from the Court of Appeal.

The first appellant was granted planning permission for a single, community-scale wind turbine at Severndale Farm in Gloucestershire by the Forest of Dean District Council (the second appellant) on 30 September 2015 - The council took into account in its determination of the planning application the proposal by the first appellant to distribute funds derived from the operation of the turbine to the local community through a community benefit society - The grant of permission was challenged by a claim for judicial review brought by the respondent, a local resident, and was quashed in the HC on the ground that the council had unlawfully taken into account a matter which was not a material planning consideration - Whether, on an application for planning permission for a wind turbine proposed to be undertaken by a community benefit society, the distribution to the local community of a community benefit fund derived from the operation of the turbine is, in the circumstances of the case, a material planning consideration which the council could lawfully take into account when considering whether to grant planning permission for the purposes of s70 (2) of the Town and Country Planning Act 1990.

Edwards on behalf of the estate of late Arthur Watkins v Hugh James Ford Simey Solicitors[2019] UKSC 54 (20 November 2019). Unsuccessful appeal from the Court of Appeal. The matter was remitted for assessment of the value of the loss of opportunity to pursue the services claim.

Mr Watkins, who died in January 2014 at the age of 72, developed a condition known as vibration white finger (VWF) whilst employed by the National Coal Board (later the British Coal Corporation) - In 1998, Mr Watkins instructed Hugh James Ford Simey Solicitors (Simey Solicitors) to act for him in a claim for damages against the British Coal Corporation in respect of his VWF - In 1999, the Department for Trade and Industry set up a compensation scheme for former miners suffering from VWF, and Simey Solicitors pursued Mr Watkins claim under this compensation scheme - In 2000, a general practitioner categorised Mr Watkins’ suffering at a level which warranted general damages of £9,478 under the compensation scheme - His level of suffering also created a rebuttable presumption that he required assistance with certain services, for which he might be entitled to additional compensation (services claim) - In 2003, Mr Watkins relied on the advice of Simey Solicitors in deciding to accept an offer for general damages of £9,478, which terminated his ongoing services claim - In August 2010, Mr Watkins issued a claim against Simey Solicitors alleging that, as a result of its negligence, he lost the opportunity to bring a services claim - Mr Watkins was examined by a joint medical expert in 2013 for the purpose of this claim; however, his suffering was categorised at a significantly lower level than that of 2000: under the scheme, he would only have been offered £1,790 for general damages, and a services claim would not have been possible - In a judgment of 16 May 2016, Mr Recorder Miller concluded that the advice given to Mr Watkins by the appellant was "professionally negligent" - However, in reliance on the medical examination of 2013, the Recorder held that Mr Watkins’ chose in action had no value given the damages already paid to him - Therefore, he dismissed the claim - On 6 June 2018, the Court of Appeal set aside the order of Mr Recorder Miller and remitted the case to the County Court at Leeds for a rehearing deciding that the trial judge had been wrong to determine the value of the services claim on the basis of evidence that would not have been available at the time of the notional claim - Whether, in assessing the prospects of success of the negligence claim, the court should have taken account of the further medical report.

Supreme Court of the United States

No decisions released during this period

Last updated on the 21st November 2019