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Supreme courts roundup, 28 February to 5 March 2020

05 March 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

O'Carroll v R [2020] NZSC 15 (5 March 2020). Application for leave to appeal from Court of Appeal decision [2019] NZCA 657 granted. The approved question is whether the Court of Appeal was correct to dismiss the appeal. Bail is extended on the same conditions until the determination of the appeal.

Neho v R [2020] NZSC 13 (4 March 2020). Application for leave to appeal from Court of Appeal decision [2019] NZCA 537 dismissed.

Lambie Trustee Ltd v Addleman [2020] NZSC 14 (4 March 2020). Application for leave to appeal from Court of Appeal decision [2019] NZCA 480 granted. Whether the Court of Appeal was correct to order the applicant to disclose to the respondent any legal opinions and other advice obtained by the trustees of the Lambie Trust and funded by the Trust. The approved question is whether the Court of Appeal was correct to reject the applicant's claims of legal advice privilege and litigation privilege respectively. In all other aspects, the application for leave to appeal is dismissed.

High Court of Australia

No decision released during this period.

Supreme Court of Canada

Nevsun Resources Ltd v Araya 2020 SCC 5 (28 February 2020). Unsuccessful appeal against lower court ruling that case go ahead.

Three Eritrean workers claimed they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claimed they were subjected to violent, cruel, inhuman and degrading treatment. The mine was owned by a Canadian company, Nevsun Resources Ltd (“Nevsun”). The Eritrean workers began proceedings in British Columbia against Nevsun and sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They also sought damages for breaches of domestic torts including conversion, battery, unlawful confinement, conspiracy and negligence. Nevsun brought a motion to strike the pleadings based on the act of state doctrine, which precluded domestic courts from assessing the sovereign acts of a foreign government. Nevsun also said claims based on customary international law should be struck because they had no reasonable prospect of success. A majority said the act of state doctrine was not part of Canadian law. A majority also said that customary international law was part of Canadian law. It said customary international law became part of Canadian law automatically. This was different to treaty law, that needed Parliament to pass a law to bring it into force. Because customary international law was part of Canadian law, courts could, in the right cases, find Canadian companies responsible for violating it. The majority said violations of peremptory norms were serious violations of rights that were important to everyone, everywhere. They needed to be strongly discouraged. The Court did not decide whether Nevsun was responsible for violating the workers’ rights. It said that the workers’ lawsuit could go forward. It said that the trial judge would have to decide whether Nevsun breached customary international law and—if it did—how it should be held responsible.

Hong Kong Court of Final Appeal

No decisions released during this period.

Judicial Committee of the Privy Council

R v Vasyli [2020] UKPC 8 (2 March 2020). Successful appeal from Court of Appeal of the Commonwealth of Bahamas.

On 1 October 2015, the appellant was convicted of murdering her husband. On 10 November 2015, she was sentenced to 20 years’ imprisonment, reduced by five months spent on remand. She appealed against conviction and sentence to the Court of Appeal. On 25 July 2017, the Court of Appeal unanimously quashed the appellant’s conviction. A majority ordered a retrial. On 3 August 2018, the Court of Appeal granted the appellant final leave to appeal to the Privy Council regarding the order for a retrial. Issues on the appeal were: (i) Whether there was a sustainable case against the appellant; (ii) If so, whether the Board should order a retrial or remit the matter to the Court of Appeal. On (i) the Board said there was a case to answer. On (ii) it said the usual practice would be for the Board to remit the question of a retrial to the Court of Appeal. The assessment involved a balancing of factors, including local conditions which the Court of Appeal was better able to identify and assess. It said the issue should be remitted to the Court of Appeal, whilst emphasising the desirability that this be dealt with promptly given the delays which had occurred. Appeal allowed. Court of Appeal’s retrial order set aside, and matter remitted to the Court of Appeal for reconsideration of whether there should be a retrial.

Ramadhar v Ramadhar [2020] UKPC 7 (2 March 2020). Successful appeal from the Court of Appeal of Trinidad and Tobago.

The appellant was found to have defamed the respondents (one of whom was his brother) at a press conference which was broadcast live. All parties were members of the Congress of the People party. The trial judge found that the press conference statements carried an imputation of bad faith and disloyalty. At issue was the meaning of his statements and whether he was able to rely on the defence of truth. The Board found that statements at the press conference, when read as a whole, did not give rise to a necessary inference that the appellant intended to harm the respondents.

Supreme Court of Ireland

DPP v FE [2020] IESC 5 (26 February 2020). Restoration of trial judge’s sentence.

The sentencing judge had sentenced the accused to a “headline” 14 years with 10 years in jail following mitigation. The Supreme Court said the Court of Appeal incorrectly reduced the headline sentence to 12 years. The eventual result was 8 years in jail. The Court said its task was reassess any Court of Appeal error. As part of this process it considered its constitutional role. It then considered sentencing principles, including the central role of the trial judge who heard the evidence. The trial judge characterised the case as in the upper bracket of more serious rape cases. On appeal, no sentencing error had been identified. It followed that the original sentence should be restored.

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

Intel Corporation Investment Policy Committee et al v Sulyma 589 US _2020 Unsuccessful appeal from United States Court of Appeal for the Ninth Circuit.

The Employee Retirement Income Security Act of 1974 (ERISA) required plaintiffs with “actual knowledge” of an alleged fiduciary breach to sue within three years of gaining that knowledge rather than within the 6-year period that would otherwise apply. The question here was whether a plaintiff necessarily has “actual knowledge” of the information contained in disclosures that he received but did not read or could not recall reading. Sulyma worked at Intel Corporation from 2010 to 2012 and participated in two Intel retirement plans. In October 2015, he sued the administrators of those plans alleging that they had managed the plans imprudently. The administrators countered that the suit was out of time because Sulyma filed it more than three years after they had disclosed their investment decisions to him. Although Sulyma had visited the website that hosted many of these disclosures many times, he testified that he did not remember reviewing the relevant disclosures and that he had not been aware of the allegedly imprudent investments while working at Intel. The District Court granted summary judgment to the administrators. The Ninth Circuit reversed. That court agreed with the administrators that Sulyma could have known about the investments from the disclosures, but said his testimony created a dispute as to when he gained “actual knowledge” . The Court said a plaintiff did not necessarily have “actual knowledge” of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet the “actual knowledge” requirement, the plaintiff must in fact have become aware of that information. ERISA’s “plain and unambiguous statutory language” must be enforced “according to its terms.”. Although ERISA does not define the phrase “actual knowledge,” its meaning was plain. Dictionaries confirm that, to have “actual knowledge” of a piece of information, one must in fact be aware of it. Legal dictionaries give “actual knowledge” the same meaning. The law would sometimes impute knowledge—often called “constructive” knowledge—to a person who fails to learn something that a reasonably diligent person would have learned. The addition of “actual” here signalled that the plaintiff’s knowledge must be more than hypothetical. The Appeal Court view was affirmed.

Kansas v Garcia 589 US_2020 3 Syllabus

Unsuccessful appeal from Kansas Supreme Court.

Under the Immigration Reform and Control Act of 1986 (IRCA) it was unlawful to hire an alien knowing that he or she was not authorized to work in the United States. IRCA required employers to comply with a federal verification system. IRCA also required all employees to complete an I–9 by their first day of employment and to attest that they were authorised to work. It was a federal crime for an employee to provide false information on an I–9 or to use fraudulent documents to show work authorization. But it was not a federal crime for an alien to work without authorisation, and state laws criminalizing such conduct were pre-empted. IRCA expressly “pre-empt[s] any State or local law imposing civil or criminal sanctions”.

The respondents, three unauthorised aliens, were convicted for fraudulently using another person’s Social Security number on the W–4’s and K–4’s they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. The Kansas Court of Appeals affirmed the convictions. A divided Kansas Supreme Court reversed, concluding a state was expressly prohibited from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who used another’s Social Security information in an I–9. The court deemed irrelevant the fact that this information was also included in the W–4 and K–4. One justice concurred based on implied pre-emption.

The Supreme Court said Kansas statutes under which respondents were convicted were not expressly pre-empted. IRCA’s express pre-emption provision applied only to employers and those who recruit or refer prospective employees and was thus plainly inapplicable.

The respondents’ argument that Kansas’s laws were pre-empted by implication was also rejected. The laws did not fall into a field that was implicitly reserved exclusively for federal regulation.

Last updated on the 5th March 2020