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Supreme courts roundup, 19 - 25 July 2019

25 July 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

Howard v ACC [2019] NZSC 78 (24 July 2019).Unsuccessful application for leave to appeal against a decision of the Court of Appeal.

The applicant sought review of a decision made under s134 of the Accident Compensation Act 2001 by the Accident Compensation Corporation (ACC) – The appellant argued that there was a right of appeal against the HC decision refusing leave under s56 of the Senior Courts Act - In order to succeed, the applicant would need to convince the Court that s56 provides for a parallel appeal process to that contained in the Accident Compensation Act – Whether the  proposed appeal raised any issue of public importance - Whether any miscarriage of justice would arise if leave was refused.

Kooiman v FM Custodians Ltd [2019] NZSC 77 (22 July 2019). Unsuccessful application for leave to appeal against a decision of the Court of Appeal.

The Court of Appeal upheld a decision of the HC declining to set aside a bankruptcy notice – The applicant guaranteed a loan from FM Custodians Ltd (FMC) to a company of which he was sole director – The company defaulted and in July 2017 FMC obtained a summary judgment against the applicant for $930,103.90 – A bankruptcy notice was issued against the applicant in August 2017 - The applicant’s argument was that a Mr Hutchison, who signed the application for adjudication on behalf of FMC lacked the authority from FMC to do so – The HC held that the applicant’s failure to comply with the requirements of the bankruptcy notice remained an act of bankruptcy under s17 of the Insolvency Act 2006 - Whether the case meets the criteria of s74 of the Senior Courts Act 2016 for grant of leave to appeal – Whether a substantial miscarriage of justice would occur if the appeal was not heard.

Smyth-Davoren v Sutherland [2019] NZSC 76 (19 July 2019). Unsuccessful application for leave to appeal from the Court of Appeal.

The applicant had filed a notice of appeal in the Court of Appeal against a decision of the HC to strike out HC proceedings – Security for costs was set at $6,600 – An application for an order dispensing with costs was denied by the Deputy Registrar of the Court of Appeal and the applicant then unsuccessfully sought a review of that decision by a Court of Appeal Judge - Whether the application for leave to appeal met the criteria set out in s74 of the Senior Courts Act 2016 – Whether there was any basis of concern that a miscarriage of justice might have occurred.

High Court of Australia

No decisions released during this period

Supreme Court of Canada

No decisions released during this period

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

XX v Minister for Justice and Equality [2019] IESC (23 July 2019). Unsuccessful appeal from the Court of Appeal.

The applicant sought asylum in the early 2000s and then withdrew that application after his child was born in Ireland and then applied for residency – In 2003 a provision in the Immigration Act 2003 provided that a withdrawn asylum claim would amount to a formal refusal of refugee status – The applicant’s temporary residency expired in 2014 and was not renewed – In 2015 he applied for a declaration that he was a refugee which was refused due to his previous withdrawal of asylum application – The applicant was deported - Whether declaratory relief should be granted that so that the applicant would be entitled to apply for a declaration of refugee status under s8 of the Refugee Act 1996.

Petecel v Minister for Social Protection [2019] IESC 58 (18 July 2019). Successful application for leave to appeal from the Court of Appeal.

The applicant is a Romanian national who lawfully resided and worked in the State between 2008 and 2011 – He was diagnosed with multiple sclerosis in 2011 – He now lives in Romania – He unsuccessfully applied for a disability allowance in September 2016 – It was refused on the basis that he was not a resident in the State – Whether the lack of jurisdiction within the statutory social welfare appeals process to grant any form of remedy in respect of the allegedly invalid categorisation of disability allowance gives rise to an exception to the general obligation to exhaust statutory remedies before seeking judicial review - If the answer to the first question is Yes, whether the Supreme Court should refer a question to the Court of Justice on the substantive issue of validity rather than remitting the matter to the High Court.

Singapore Court of Appeal

No decisions released during this period

Supreme Court of the United Kingdom

Secretary of State for the Home Department v Franco Vomero (Italy) [2019] UKSC 35 (24 July 2019). Successful appeal from the Court of Appeal.

The respondent, an Italian national, arrived in the UK in 1985 - On 23 March 2007, the decision to deport him was made by the Secretary of State - This was after he had been released from prison in 2006, having served his sentence for manslaughter by reason of provocation, of which he had been convicted in 2001 - The respondent’s appeal against the decision to deport him was allowed by the Asylum and Immigration Tribunal after it had been initially dismissed by a differently constituted panel - The Secretary of State’s appeal to the Court of Appeal was dismissed - On appeal to the SC, the SC made a reference to the Court of Justice decision being made on the premise that the respondent had not, at the time of the decision, acquired a right of permanent residence - The purpose of this further hearing was to determine what order should be made by the SC in light of the CJEU’s reasoning with regards to the reference - On remittal to the Upper Tribunal, should the respondent be permitted to argue that he had acquired a right of permanent residence by the time of the decision to depart him was made.

R (on the application of Association of independent Meat Suppliers ) v Food Standards Agency [2019] UKSC 36 (24 July 2019). Decision to refer two questions to the Court of Justice of the European Union.

In 2014, Cleveland Meat Company Limited (Cleveland) purchased a bull at Darlington Farmers Mart for about £,1400 - After the animal was slaughtered, the Official Veterinarian (OV) found that the animal was diseased and so declared it unfit for human consumption, and refused to award it a health mark - Cleveland did not agree with the OV’s decision - Cleveland considered the bull was healthy and sought to challenge the OV’s decision - The Food Standards Agency, however, took the view that there was no right to appeal against or challenge a decision of an OV as to the fitness of meat for human consumption - Cleveland brought a claim for judicial review of the decision that it had no right of appeal against the OV’s decision - Whether there is a right of appeal against an Official Veterinarian’s assessment of the fitness of meat for human consumption where there is a dispute as to the fitness of the meat for human consumption.

X v Kuoni Travel Ltd [2019] UKSC 37 The Supreme Court unanimously decided to refer two questions to the Court of Justice of the European Union.

The appellant and her husband were on a package holiday in Sri Lanka between 8 and 23 July 2010 - The package was booked through the respondent tour operator - In the early hours of 18 July 2010, the Appellant was making her way through the grounds of the Hotel - She came across an employee ‘N’ - He was employed as an electrician and was known to the appellant as a member of the maintenance staff - N was on duty and wearing his Hotel uniform - He offered to show her a shortcut to reception - In fact, he took her via the engineering department where he raped and assaulted her - The appellant brought a claim against the respondent for breach of contract and the Package Travel, Package Holidays and Package Tours Regulations (SI 1992/3288) - The appellant’s claims were dismissed at first instance and by the Court of Appeal - Whether the respondent is liable to the appellant for breach of contract and/or under Reg 15 of the Package Travel, Package Holidays and Package Tours Regulations (SI 1992/3288) - Whether the rape and assault of Mrs X constituted improper performance of the obligations of Kuoni under the contract - If so, whether any liability of Kuoni in respect of N’s conduct was excluded by clause 5.10(b) of the contract and/or regulation 15(2)(c) of the 1992 Regulations.

Secretary of State for Work and Pensions v MM [2019] UKSC 34 (18 July 2019). Successful appeal from the Inner House of the Court of Session.

The respondent (MM) is a man in his forties - He made a claim for personal independence payment (PIP) in February 2015 - His entitlement to the daily living component of the allowance at the standard rate depended on whether he satisfied descriptor 9c, which would give him 4 points towards the required score of at least 8 points overall under regulation 5 - His claim was rejected on the ground that his ability to engage with other people face to face only satisfied descriptor 9b, ‘Needs prompting to be able to engage with other people’, which gave him a score of 2 points – A claim to personal independence payment under the Social Security (Personal Independence Payment) Regulations 2013 is based on a person needing social support to be able to engage with other people: whether the social support needed must be contemporaneous with the engagement being supported – Whether anything that constitutes needing "prompting" to be able to engage with other people also constitutes social support, subject to it being provided by a person trained or experienced in assisting people to engage in social situations.

Supreme Court of the United States

No decisions released during this period

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Last updated on the 1st August 2019