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Supreme courts roundup, 4 to 10 October 2019

10 October 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

West v West [2019] NZSC 109 (9 October 2019).Unsuccessful application for leave to appeal.

TheCourt of Appeal dismissed the applicant’s (Mr West) applications for particular discovery – The proceedings related to the 2014 transfer of Mr West’s (then aged 92)  property at  Muriwai to his sons – The price was forgiven and Mr West retained the right to live in the property – In 2016 Mr West unsuccessfully sought return of the property – All claims were dismissed and the judgment was sealed – Mr West was granted an extension of time to appeal, but he did not maintain the appeal and it was deemed abandoned in December 2018 – After the judgment was filed in August 2018, Mr West made applications for discovery – Edwards J dismissed the applications on the basis the HC was functus officio – The Court of Appeal agreed with the HC – Whether the matters raised gave rise to any question of general or public importance.

FMB v TZB [2019] NZSC 108 (8 October 2019).Successful application for leave to appeal.

Whether the Court of Appeal was correct to dismiss the appeal.

Brooks v R [2019] NZSC 107 (8 October 2019). Unsuccessful application for leave to appeal.

The applicant was convicted in the DC on charges of sexual violation of the complainant – The applications concern the admissibility of prior acquittal propensity evidence given by two witnesses, R and S – Whether the Court of Appeal erred in finding that the probative value of the S complaint outweighed the risk of fair prejudice, despite the absence of much of the records relating to the prior acquittal and the effect of the New Zealand Bill of Rights Act 1990; and whether the probative value of the R complaint outweighed the risk of unfair prejudice - Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298.

T (SC 62/2019) v R [2019] NZSC 106 (7 October 2019).Successful application for extension of time.Unsuccessful application for leave to appeal against a decision of the Court of Appeal.

The applicant was convicted of 31 charges of offences committed against his step daughters – His appeal against conviction was dismissed and the appeal against sentence was allowed in part – The application was made on the ground that the foreperson of the jury was a retired police officer – The appellant submitted that this could have affected the impartiality of the jury or given the appearance of having done so – Whether anything raised on behalf of the applicant suggested the Court of Appeal erred in its assessment.

Jackson v Police [2019] NZSC 105 (4 October 2019). Unsuccessful application for leave to appeal from a decision of the High Court.

The applicant was convicted in the DC of driving a motorcycle at a dangerous speed – The HC dismissed his appeal and the Court of Appeal declined his application to bring a second appeal – There was no transcript of the applicant’s trial and he maintains that he has therefore been deprived of the right to appeal as enshrined in s25(h) of the New Zealand Bill of Rights Act 1990 – Whether any matter raised suggests that the HC may have been in error.

High Court of Australia

Mann v Paterson Construction Pty Ltd [2019] HCA 32 (9 October 2019).Successful appeal from the Supreme Court of Victoria.

Land owners and a builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – The contract provided for progress payments at completion of stages – The owners requested, and the builder carried out, variations to plans and specifications in contract without giving written notice as required by s38 of Act – The owners repudiated the contract after the builder raised invoice claiming for variations – The contract was terminated by the builder's acceptance of owners' repudiation – Whether s38 of Act applied to limit amount recoverable by the builder for variations – Whether the builder was entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether the contract price operated as a ceiling on the amount recoverable by way of restitution.

Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33 (9 October 2019). Unsuccessful appeal from the Supreme Court of Victoria.

Section 260A(1) of the Corporations Act 2001 (Cth) provides that a company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors – The appellant companies' constitutions contained pre-emption clause which provided that, before a shareholder could transfer shares of a particular class, those shares must first be offered to existing shareholders of that class in proportion to the number of shares of that class already held by that shareholder – The sole shareholder of one shareholder company entered into agreements for sale of shares – The appellant companies claimed that agreements breached pre-emptive rights provisions – An injunction was sought under s1324 of Corporations Act to restrain the appellant companies from prosecuting proceedings in relation to pre-emptive rights on basis that proceedings contravened the prohibition against financial assistance in s260A(1) – Whether funding by company of legal proceedings directed at compelling one shareholder to offer shares to other shareholders is financial assistance – Whether the companies should be enjoined from continuing legal proceedings at their expense to vindicate alleged breach of pre-emptive rights.

BVD17 v Minister for Immigration and Border Protection [2019] HCA (9 October 2019). Unsuccessful appeal from the Federal Court of Australia.

A decision by delegate of Minister for Immigration and Border Protection to refuse protection a visa was referred to Authority for review – The Secretary of Department of Immigration and Border Protection gave the Authority documents and information – The Secretary notified the Authority that s473GB applied to documents and information – Section 473GB(3) conferred discretions on the Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant – The documents and information not disclosed to the referred applicant during review – The act of notification not disclosed to referred applicant during review – Whether procedural fairness required Authority to disclose fact of notification to a referred applicant.

Supreme Court of Canada

Fleming v Ontario [2019] SCC 45 (4 October 2019). Successful appeal from the Court of Appeal for Ontario.

F, a counter‑protestor, acting lawfully, was arrested to prevent apprehended breach of peace by others – F was charged with obstructing police officer but that charge was later withdrawn - F filed a statement of claim against Province and police officers seeking general damages for assault and battery, wrongful arrest and false imprisonment, aggravated or punitive damages and damages for violation of various constitutional rights - Whether police have a common law power to arrest someone acting lawfully in order to prevent apprehended breach of peace by others.

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

No decisions released during this period

Singapore Court of Appeal

Bi Xiaoqiong v China Medical Technologies, Inc (in liquidation) [2019] SGCA 50 (30 September 2019).Grounds of decision following appeal from the High Court.

Whether the court has the power to grant a Mareva injunction against a defendant to Singapore proceedings where, at the time of that the injunction is sought, the plaintiff intends to pursue foreign proceedings, rather than Singapore proceedings that terminate in a judgment – Provided the court otherwise had the power to grant a Mareva injunction against the particular defendant, the plaintiff’s intention to pursue foreign proceedings could not negate such a power.

Supreme Court of the United Kingdom

No decisions released during this period

Supreme Court of the United States

No decisions released during this period

Last updated on the 10th October 2019