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Supreme courts roundup, 22 to 28 November, 2019

28 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

Prescott v Police [2019] NZSC 133 (22 November 2019).Unsuccessful application for leave to appeal against a decision of the Court of Appeal.

The Court of appeal dismissed an application for an extension of time to file an appeal from a decision of the HC refusing to stay the execution of the costs order made against him in the HC – A vehicle with a number plate issued to the applicant was recorded by a speed camera exceeding the speed limit – The applicant contested that he was the driver and sought a hearing, but he was not present at the hearing – The offence was found proven by the Justices of the Peace – The applicant unsuccessfully appealed to the DC – Instead of applying for leave to appeal in the HC, he applied for judicial review – The Police successfully applied to strike out – The applicant then unsuccessfully applied for recall of the HC judgment – His notice of appeal in the Court of Appeal was out of time - Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 considered by the Court of Appeal – The concern of the applicant was the respondent was not required to prove beyond reasonable doubt that he was the driver of the vehicle - Whether the matters raised were of general or public importance – Whether the arguments raised had sufficient prospects of success.

High Court of Australia

Bosanac v Commissioner of Taxation [2019] HCA 41 (22 November 2019). Unsuccessful application for a writ of certiorari to quash the judgment and orders of the Full Court of the Federal Court of Australia.

The Commissioner of Taxation (Commissioner) issued amended assessments of taxable income following commencement of an audit – The taxpayer objected to the amended assessments – The objection decision was made in respect of taxpayer's objection (Objection Decision) – Further amended assessments were made consequent upon Objection Decision – The taxpayer appealed against the Objection Decision under Pt IVC of Taxation Administration Act 1953 (Cth) (Act) but not against further amended assessments – The Commissioner conceded certain amounts incorrectly assessed as income (Conceded Amounts) – Whether the appeal under Pt IVC of Act was against Objection Decision or against further amendment assessments – Whether the Commissioner's assessment excessive to extent of Conceded Amounts - Whether the primary judge and Full Court each misconstrued jurisdiction – Whether primary judge and Full Court committed jurisdictional error – Whether taxpayer's application for judicial review, after expiration of time in which to seek special leave to appeal, was sufficient basis to dismiss application.

Supreme Court of Canada

Montréal (Ville) v. Octane Stratégie inc [2019] SCC 57 (22 November 2019). Unsuccessful appeal (majority) from the Court of Appeal for Quebec.

In April 2007, the appellant Ville de Montréal's (City) director of transportation made use of the services of Octane, a public relations and communications firm, to create an event concept for the launch of the City’s transportation plan that was to take place on May 17, 2007 - Mandate was granted to Octane without rules of public order for awarding municipal contracts having been complied with and without grant of mandate having been approved by resolution of municipal council or by officer authorized by valid delegation of power - Following the event, Octane sought payment for the costs incurred for the services provided by a subcontractor to produce and organize the event, but the City was slow to pay - Octane finally sent it an invoice in October 2009 - In May 2010, nearly three years after the launch was held, the invoice was still unpaid and Octane instituted an action against the City - Whether rules on restitution of prestations set out in Civil Code of Québec apply under municipal law — Whether contract exists between municipality and Octane - Whether restitution of prestations is necessary — Civil Code of Québec, arts.1491, 1699.

Hong Kong Court of Final Appeal

IQ EQ (NTC) Trustees Asia (Jersey) Limited, DHJ Management Limited v Bruno Arboit and Roderick John Sutton [2019] HCFCA 45 (22 November 2019). Case settled before the judgment was delivered. Had it not been settled the Court would have unanimously allowed the appeal from the Court of Appeal.

Appeal concerning the liability of the appellants in relation to a family trust set up in Jersey law in 2005 – The first appellant (DBS) was the trustee and held the only share of the second respondent (Wise Lords) as the sole trust asset – The second appellant (DHJ) was the sole director of Wise Lords – Madam Li, a settlor and a beneficiary, was the investment adviser of Wise Lords – In 2008, during the GFC, DBS and DHJ gave after-the-event approvals for three transactions entered into by Wise Lords – As a result of AUD falling against the USA Wise Lords suffered significant losses – The lower courts found DBS liable for gross negligence on the grounds that they owed a “high level of supervisory duty” to the respondents – Whether, despite the “anti-Bartlett” provisions, the appellant owed the “high level of supervisory duty” as found by the trial judge and Court of Appeal.

Judicial Committee of the Privy Council

Mauritius Shipping Corporation Ltd v Employment Relations Tribunal [2019] UKPC 42 (21 November 2019).Unsuccessful appeal from the Supreme Court of Mauritius refusing leave on an application for judicial review.

The appellant company, owned by the Government of Mauritius, made several employees redundant, including the 11 co-respondents – The co-respondents registered complaints with the Permanent Secretary under s 39B of the Employment Rights Act 2008 (the Act) – The Permanent Secretary referred the matter to the Employment Relations Tribunal (the Tribunal) – The Tribunal found the termination was unjustified and ordered the appellant to pay severance allowance to the co-respondents – The appellant unsuccessfully sought leave to apply for judicial review – The Supreme court refused leave on the grounds that it was not persuaded that the grounds advanced were arguable and that the application had not been made sufficiently promptly – Whether there was any basis to impugn the decision of the SC to refuse leave because the application failed the requirement of promptness in Order 53 Rule 4.

Supreme Court of Ireland

No decisions released during this period

Singapore Court of Appeal

Moad Fadzir bin Mustaffa v Public Prosecutor [2019] SGCA 73 (25 November 2019). Unsuccessful appeal from the High Court.

The appellant Moad Fadzir was convicted of trafficking in not less than 36.93g of diamorphine and sentenced to death – Zuraimy was convicted of abetting Moad Fadzir to possess the diamorphine and was sentenced to 10 years imprisonment - Moad Fadzir appealed against his conviction and sentence, disputing the elements of knowledge of the nature of the drugs and possession of the drugs for the purpose of trafficking - Zuraimy appealed against his sentence on the amended charge, on the ground that it was manifestly excessive – The SGCA amended the charge against Moad Fadzir by deleting the reference to common intention - Whether the Judge was right to admit his contemporaneous statements P84 and P85 in evidence - Whether Moad Fadzir knew that the white plastic bag contained diamorphine - If he did, whether he managed to rebut the presumption of trafficking under s 17 of the Misuse of Drugs Act - Whether Zuraimy was in joint possession of the diamorphine with Moad Fadzir - Whether there was a common intention for Moad Fadzir to be in possession of diamorphine for the purpose of trafficking - If Zuraimy was not guilty on the original trafficking charge against him, whether the maximum sentence of ten years’ imprisonment for his conviction on the amended charge of abetment by intentionally aiding Moad Fadzir to possess diamorphine was manifestly excessive.

Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2019] SGCA 72 (19 November 2019). Unsuccessful application by the respondent for a stay of appeal pending the appellant’s payment of costs below.

The applicant, PGN Sustainable Development Program Ltd (the respondent in the main appeal) succeeded before the HC defending claims brought by the Independent State of Papua New Guinea and was awarded cost - When an appeal may be stayed pending the payment of costs awarded by the court below.

Lim Chit foo v Public Prosecutor [2019] SGCA 70 (19 November 2019).Decision that the statutory basis for the standing down on pending charges is s238 of the Criminal Procedure Code.

The applicant faced criminal charges relating to his alleged involvement in a large-scale fraudulent scheme perpetrated on the Inland Revenue Authority of Singapore (IRAS) in relation to the IRAS Productivity and Innovation Credit (PIC) Scheme – Half of the charges were faced by the applicant individually and the remaining were faced with two co-accused – The prosecution wanted to proceed with the individual charges at one trial and the joint charges at a separate trial - The applicant objected to this and filed a criminal motion for leave to state a case directly to the Court of Appeal on questions of law relating broadly to the legality of the Attorney-General purporting to exercise his discretion to prosecute the applicant’s multiple charges over the course of separate and consecutive trials - At the hearing of the criminal motion, the issue centred on the statutory basis for the practice of standing down charges – The hearing was adjourned for the parties to tender written submissions.

Sim Tee Meng v Haw Wan Sin David [2019] SGGA 71 (19 November 2019). Unsuccessful appeal from the High Court.

The appellant (Mr Sim) was the Key Executive Officer (KEO) and director of a limited company in business as an estate agency – The respondents sued the appellant and others for negligent misrepresentation – Whether a company’s KEO owes a personal duty of care to customers arising out of his or her interactions with them, and whether that KEO was personally liable for representations made to them.

Yashwant Baaj v Toru Ueda [2019] SGCA 69 (18 November 2019). Successful appeal from the High Court.

The parties were partners in a fund management business – They were sole directors and equal shareholders of Hachiman Capital Management (HCM), which managed a hedge fund in Japan (later managed in Singapore) – In September 2010 the parties decided to close the business of the Fund and entered into an agreement on the division of assets – The could not agree on some subsequent transactions and business decisions as well as the nature and scope of their agreement - Whether a statutory demand should be set aside on the ground that the debts which formed the subject matter of the statutory demand had not accrued as of the date of that demand - The debts allegedly arose out of a report by an independent accountant whom the parties had appointed pursuant to a settlement agreement to resolve their dispute - The parties had tasked the independent accountant to calculate and populate certain values to reach a final sum to be paid by one party to the other - In his report, the accountant qualified the values he reached, stating that the values were subject to adjustments - The qualified character of these values led to the central issue in this appeal: whether these values were valid for the purposes of the parties’ settlement agreement such that debts based on these values had accrued.

Supreme Court of the United Kingdom

Royal Mail Group Ltd v Jhuti [2019] UKSC 55 (27 November 2019).Successful appeal from the Court of Appeal.

The appellant was employed as a media specialist in the MarketReach unit of the respondent’s sales division – The appellant was initially on a trial period of 6 months and during this period she made ‘protected disclosures’ (whistleblowing) under s 43A of the Employment Rights Act 1996 (the Act) – In response, her line manager pretended that her performance was inadequate, bullied her and created a false picture of her performance – The company appointed another employee to decide whether she should be dismissed – The appellant, who had been signed off work for work-related stress, anxiety and depression was unable to present her case to the decision-maker and she was dismissed for inadequate performance - Whether in a claim for unfair dismissal under Part X of the Act, can the reason for the dismissal be other than that given to the employee by the employer’s appointed decision-maker.

R (on the application of Hemmati) v Secretary of State for the Home Department [2019] UKSC 56 (27 November 2019). Unsuccessful appeal by the Secretary of State from a decision of the Court of Appeal.

This case concerns five individual immigrants (the respondents) who were placed in detention for various periods pending possible removal to other EU Member States pursuant to the asylum arrangements under the Dublin III Regulation - In particular, the principal issues in the appeal concern the meaning and effect of Article 2(n) and Article 28 of the Dublin III Regulation – The respondents challenged the lawfulness of their detention by bringing claims against the Secretary pf State for the Home Department - The High Court dismissed the challenges of the first to fourth respondents, but the detention of the fifth respondent was found to have been unlawful - The first to fourth respondents appealed to the Court of Appeal - In the case of the fifth respondent, the Secretary of State appealed to the Court of Appeal - By a majority, the Court of Appeal allowed the appeals of the first to fourth respondents and dismissed the Secretary of State’s appeal - Whether the Secretary of State’s published policy in Chapter 55 of the Enforcement Instructions and Guidance satisfied the requirements of Article 2(n) and Article 28 of the Dublin III Regulation - If not, whether damages are payable in respect of the detention of the respondents either for the tort of false imprisonment or pursuant to EU law under the principle established by the Court of Justice of the European Union in the Factortame case.

Supreme Court of the United States

Thompson v Hebdon 589 U.S_(2019) (25 November 2019). Successful appeal from the United States Court of Appeals for the Ninth Circuit. Case remanded to the Court of Appeal.

Alaska law limits the amount an individual can contribute to a candidate for political office, or to an election oriented group other than a political party, to $500 per year – The appellants sued the respondents contending that Alaska’s contribution limits violate the First Amendment - Whether Alaska’s political contribution limits are consistent with the SC First Amendments precedents.

Last updated on the 28th November 2019