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Supreme courts roundup, 27 March to 2 April 2020

02 April 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

Competition law - Price fixing

Lodge Real Estate Ltd v Commerce Commission [2020] NZSC 25 - 2 April 2020 - Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ. Appeal from Court of Appeal [2018] NZCA 523 dismissed.

Hamilton real estate agencies met to consider major change by TradeMe to charging policies for listing of real estate - Allegations and action by Commission that participants at meeting agreed to price fixing arrangement in breach of section 30 of Commerce Act 1988 - Whether appellants entered into an arrangement or arrived at an understanding and gave effect to that arrangement or understanding - If so, did the arrangement or understanding have the purpose, effect or likely effect of fixing, controlling or maintaining the price of services provided by the appellants in competition with each other - Legal test for entering into arrangement or understanding - Whether effect given to arrangement - Whether arrangement had proscribed purpose or effect.


Patel v Immigration and Protection Tribunal [2020] NZSC 27 - 2 April 2020 - Glazebrook and O'Regan JJ. Applications to deduce further evidence dismissed; applications for leave to appeal dismissed.


Barton v R [2020] NZSC 24 - 25 March 2020 - Glazebrook, Ellen France and Williams JJ  Unsuccessful leave application.

Applicant convicted in District Court of 10 charges of knowingly failing to provide a tax return when required to do so, with the intention of evading the assessment or payment of tax - sentenced to three years, two months and two weeks’ imprisonment - appealed to the Court of Appeal against that sentence on ground that it was manifestly excessive - Appeal dismissed and application to defer the commencement of his sentence declined - Applied to the Court of Appeal to recall judgment. That application dismissed – Sought leave to appeal to SC – SC said not in interests of justice to grant bail – Application dismissed.

High Court of Australia

No decisions released during this period.

Supreme Court of Canada

Dangerous driving - Mens rea

Chung v R [2020] SCC 8 (27 March 2020). Unsuccessful appeal from British Columbia Court of Appeal.

C acquitted at trial of dangerous driving causing death  - No question that C drove in an objectively dangerous manner and committed actus reus of charged offence - Trial judge had a reasonable doubt about whether C had requisite guilty mind or mens rea - Court of Appeal said trial judge committed an error of law in finding that C lacked the requisite mens rea, set aside the acquittal and entered a conviction - Sole issue in appeal to SCC was whether trial judge made an error of law, which would allow Crown to appeal C’s acquittal – Majority said Crown could only appeal an acquittal on a question of law - Appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof -  Crown could not appeal merely because an acquittal was unreasonable - Here trial judge made two inter‑related errors of law: erred by applying a wrong legal principle and, most importantly, failing to apply correct legal test by not assessing what a reasonable person would have foreseen and done in C’s circumstances. Appeal dismissed.

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

Asylum - International Protection Act

A.W.K v Minister for Justice and Equality and anor [2020] IESC 10 - 25 March 2020. Unsuccessful appeal.

Applicant born in Pakistan in 1991 - Applied for asylum - International Protection Act 2015 (“Act”) not in force - application rejected, but while appeal pending before Refugee Applications Tribunal, most important and significant Act provisions activated - Applied for international protection under Act terms - Rejected at both first instance and on appeal - After initial decision Minister declined applicant permission to remain - Minister, on receipt of further information from applicant, reviewed decision but saw no reason to alter it -  review conducted under s. 49(7) of Act 2015  - Most crucial question on appeal whether “review” should be regarded as “decision” under s. 49(4)(b) of Act, for purposes of of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Appeal dismissed and High Court decision affirmed.

Discovery - breadth of - Breach of implied undertaking in different proceedings

Waterford Credit Union v Davy [2020] IESC 9 - 24 March 2020. Successful appeal from Court of Appeal.

Both High Court and Court of Appeal  ruled certain documents W had requested in discovery process were relevant and necessary - Court of Appeal said discovery should be declined because of alleged breach by solicitor acting for requesting party of implied undertaking in previous proceedings involving a different client - Core issue on appeal was the extent of discretion of court to decline discovery in such circumstances - High Court and the Court of Appeal came to sustainable decision that documents in question were relevant and their discovery necessary -  Court of Appeal wrongly declined discovery - Court of Appeal in error to deprive W of discovery as  means of imposing a sanction for a breach of an implied undertaking given in other proceedings in which it was not a party – Appeal allowed.

Evidence – Admissibility

Diesel S.P.A v Controller of Patents, Designs and Trademarks and anor [2020] IESC 7

Test for admitting new evidence – Part of a long-running trademark dispute between D and M - D an Italian fashion company designing, manufacturing and selling casual clothes, M also a fashion brand, established in Ireland and operating in a similar field - Both traded under “DIESEL” trademark in Ireland - When D attempted to register “Diesel” trade mark, Controller highlighted Diesel’s failure to provide more evidence concerning the extent of the sale of its goods in Ireland - High Court said some of the proposed new evidence might be admitted - Court of Appeal said none be admitted - SC said genuine dispute over test to be applied when party sought to introduce new evidence in an appeal to High Court from Controller’s decision – Said High Court judge applied correct test.

Negligence – Applicable test – Trial judgment engagement – Vicarious liability

Morrisey v Health Service Executive [2020] IESC 6 - 19 March 2020.Appeal partially allowed.

M terminally ill from cancer - Screened under National Cervical Screening Programme twice - Both smear tests negative for abnormalities and she had clear result – Following symptomatic bleeding referred for further testing - Biopsy and MRI scan disclosed cervical cancer - Original smear results incorrect – HSE outsourced smear testing to third parties - M and Mr M commenced proceedings against HSE and others - High Court awarded €2,152,508 against all three defendants and additional sum of €10,000 in nominal damages against HSE over failure to notify M about incorrect smear results -  Each defendant granted leave to appeal directly to SC -  Trial judge arguably applied English medical negligence test based on “absolute confidence” instead of Irish approach – SC said Irish and UK precedent compatible – Medical negligence also applied broader professional negligence standard  - “ordinary competent professional” based on facts – “Absolute confidence” test based on evidence from professionals – Trial judge raised with expert – Trial judge “engaged” with all parties’ cases -  HSE not “involved” in testing, not vicariously liable – Non-delegable duty of care – HSE primarily liable – Trial judge’s €500,000 general damages award acceptable - Trial judge erred to award Mr. M damages for costs of providing for services which Ms. M might have provided free for the family if she had normal life expectancy – appeal allowed on this point – Otherwise appeal dismissed.

Singapore Court of Appeal

Drug trafficking - “only a courier”

Mohammad Farid bin Batra v Public Prosecutor [2020] SGCA 19 - 26 March 2020. Unsuccessful appeals against sentence and conviction.

F and R convicted of trafficking in not less than 35.21g of diamorphine – High Court Judge said R a courier within the meaning of s 33B(2) of the Misuse of Drugs Act - Public Prosecutor issued “certificate of substantive assistance” to R – Judge sentenced him to life imprisonment and the mandatory 15 strokes of the cane - Judge said F not a courier, did not receive certificate of substantive assistance - Imposed mandatory death sentence – Both appealed against conviction and sentence – F said he did intend trafficking the drugs - Also appealed against finding he was not a courier - R said he did not know nature of the drugs in his possession. - Also said, inter alia, he had received inadequate legal assistance from his trial counsel – Court of Appeal accepted that F’s role was to collect the drugs and await instructions - On this occasion,  no  instructions about what F should do with the drugs - Court accepted that F was a “ mere courier” for particular transaction - However, F not issued a certificate of substantive assistance – Mandatory death sentence upheld - F’s appeal against conviction and sentence dismissed – Court said  R’s claim regarding inadequate assistance from trial counsel to be assessed through a two-step approach: Accused had to show: a) trial counsel’s conduct of case fell so clearly below an objective standard and could be fairly described as flagrant or egregious incompetence; and b) there was a real possibility the inadequate assistance caused a miscarriage of justice - Applying this approach, court said R’s assertions had no merit- R’s appeal against conviction and sentence dismissed.

Brokerage contract – Formation – Termination – Agency

SAR Maritime Agencies(Pvt) Ltd  v PCL Shipping Pte Ltd [2020] SGCA 23 - 25 March 2020. Unsuccessful appeal

SAR claimed against the PCL for 1% commission on the freight of each cargo PCL shipped for Ceylon Shipping Corporation Limited (“CSCL”) from October 2014 to May 2019 - SAR said commission entitlement stemmed from Brokerage Agreement entered into on 8 May 2014 – Trial Judge dismissed SAR’s claim entirely – no concluded brokerage agreement - Even if there was, judge said it terminated on 21 May 2014, through an email – Further SAR not entitled to any commission as was not  effective cause of PCL’s contracts with CSCL – Court of Appeal said three requirements necessary for contractual formation, complete and certain identifiable agreement consideration, and intention to create legal relations - Binding brokerage agreement entered into on 8 May 2014 - brokerage  payment commission subject to condition subsequent of “formal execution of the Coal Transportation Agreement” – Brokerage Agreement terminated by mutual agreement on 5 June 2014 - However, Brokerage Agreement terminating would not necessarily deprive SAR of its commission - agent entitled to commission if was the transaction’s “effective cause” - Clear here that SAR not effective cause of  CSCL contracts – Appeal dismissed.

Supreme Court of the United Kingdom

Judicial review - Home Secretary decision - Supplying information to US authorities that might lead to imposition of death penalty

Elgizouli v Secretary of State for the Home Department [2020] UKSC 10 - 25 March 2020. Successful appeal from Court of Appeal.

Appellant’s son alleged to have been member of  terrorist group, operating in Syria, involved in murdering US and British citizens - In June 2015, US mutual legal assistance (‘MLA’) sent a request to the UK regarding investigation into group activities -  Home Secretary requested assurance that information would not be used directly or indirectly in a prosecution that could lead to imposing death penalty - US refused to provide full death penalty assurance - In June 2018, the Home Secretary agreed to provide the information to the US without requiring any assurance whatever - Appellant challenged Home Secretary’s decision through judicial review - Divisional Court dismissed her claim, but certified two questions of law of public importance: (i) whether it was unlawful for the Secretary of State to exercise his power to provide evidence under MLA to a foreign state that would facilitate imposing the death penalty in that state; and (ii) whether it was lawful under Part 3 of the Data Protection Act 2018 (‘DPA’) for UK law enforcement authorities to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings – SC allowed the appeal - Majority dismissed challenge brought under the common law - Court unanimously said decision failed to comply with the DPA - Lord Kerr would have allowed the appeal on both grounds.

Supreme Court of the United States

No decisions released during this period.

Last updated on the 2nd April 2020