New Zealand Law Society

Navigation menu

Supreme courts roundup, 6 to 12 December 2019

12 December 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

Minister of Justice v Kyung Yup Kim [2019] NZSC 142 (10 December 2019). Order made declaring that following the hearing on 4 December 2019 the Court has determined there is no impediment to Arnold J sitting on the panel to hear the substantive appeal.

Southern Response Earthquake Services Ltd v Miles [2019] NZSC 140 (9 December 2019).Successful application for leave to appeal.

The appeal concerns questions about the principles applicable to deciding whether representative claims proceed on an opt in or opt out basis – Whether the Court of Appeal was correct to allow the appeal. The panel to hear the appeal will comprise Glazebrook, O’Regan, Ellen France, Arnold and French JJ.

Bublitz v R [2019] NZSC 138 (9 December 2019). Unsuccessful applications for leave to appeal.

The applicants were convicted, after a judge-alone trial of theft by a person in a special relationship under s220 of the Crimes Act 1961 – Their appeals against convictions were dismissed in the Court of Appeal – Mr Bublitz had a property development business – After the 2008 GFC Mr Bublitz took advantage of the Crown Retail Deposit Guarantee scheme to make his portfolio more attractive to investors – The crown case was that Mr Bublitz had knowingly misapplied public funds raised by Mutual Finance Ltd (Mutual) through a series of transactions between Mutual and Viaduct Capital Ltd (Viaduct) which amounted to related party transactions under a deed of guarantee dated 8 December 2009 between Mutual and the Crown (Mutual Crown guarantee) – Mr Bublitz did not comply with various requirements under the Mutual Crown guarantee – The Crown case against Mr McKay was, as the Chief financial Officer and Director of Viaduct, that he knew all the relevant details – Whether, in determining which of the two possible definitions of ‘control’ to adopt in the Mutual Crown guarantee the court should have applied the principle of strict construction applicable to penal statutes – Whether the Court of Appeal erred by not ordering a stay of proceedings given the delays involved – Whether the finding that Mr McKay had the requisite knowledge was correct.

Bublitz v R [2019] NZSC 139 (9 December 2019).Unsuccessful applications for leave to appeal against a decision of the Court of Appeal.

The applicants criminal trail was aborted after nine months because of disclosure failures by the Crown – Costs were awarded to the applicants - Mr Morrison was awarded $75,000 under s 5 of the Costs in Criminal Cases Act 1967 (the 1967 Act) and an award of $50,000 under s 364 of the Criminal Procedure Act 2011 was to be split between the four defendants and the Ministry of Justice for the Court – The applicants then unsuccessfully appealed to the Court of Appeal against the quantum – regarding Mr Bublitz, whether the Court of Appeal erred as a matter of principle in its conclusions as to the purpose of s 364 and in its assessment of the award as against the statutory test – Mr Morrison challenged the finding that he had not established his innocence and that the impact of this aspect on what was a “just and reasonable" award.

R (SC 101/2019) v Legal Services Commissioner [2019] NZSC 135 (9 December 2019).Unsuccessful application for leave to appeal.

The applicant unsuccessfully applied for legal aid to pursue an individual complaint before the United Nations Human Rights Committee (UNHRC) relating to sexual abuse while in state care in Australia – His application was declined on the basis that UNHRC was not a ‘judicial authority’ for which civil legal aid may be granted under s7(1)(e)(v) of the Legal Services Act 2011 - Tangiora v Wellington District Legal Services Committee [2000] 1 NZLR 17 (PC) – The applicant argued that the legal landscape has changed since the Tangiora decision was delivered – Whether it was in the interests of justice to hear the appeal.

Young v R [2019] NZSC 137 (6 December 2019). Unsuccessful application for leave to appeal from a judgment of the Court of Appeal.

The appellant plead guilty to 13 charges of fraud and dishonesty – After a disputed facts hearing he was sentenced to four years and 11 months imprisonment – His appeal against conviction and sentenced was dismissed in the Court of Appeal – The applicant was granted extensions of time to file submissions in support of his application to the SC, but he did not file submissions, so application proceeded on that basis – Whether the leave criteria were met.

McLean v Public Trust [2019] NZSC 136 (6 December 2019). Unsuccessful application for leave to appeal against a decision of the Court of Appeal.

The applicant’s father bequeathed the “rest and residue” of his estate to his trustees upon a number of trusts permitting his wife, Mrs McLean to for example, occupy the home, be paid net annual income from the estate and if necessary resort to capital to make up income to amount to her “proper maintenance” – Upon Mrs McLean’s death clause 5 of the will provided that the farm and machinery was to be given to the applicant’s brother (John) and the balance of the estate was to divided to his surviving children as tenants in common in equal shares – John did not survive their mother – Mrs McLean left her interests in the farm to the applicant’s ex-wife and three of her grandchildren - Whether the specific gifts to John fell into the residuary estate for distribution.

High Court of Australia


DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2019] HCA 47
(6 December 2019). Successful application to have the matter remitted to the Victoria District Registry off the Federal Court of Australia.

The plaintiff brought a representative proceeding in High Court for damages for false imprisonment – The plaintiff claimed that Group Members were  purportedly detained under ss 189 and 196 of Migration Act 1958 (Cth) while the Commonwealth investigated or determining applications for visa, or determined whether to permit a valid application for visa to be made, or of removing relevant Group Member from Australia to regional processing country – The plaintiff claimed that the detention was lawful only for period during which the purposes were pursued and carried into effect as soon as reasonably practicable and capable of fulfilment – The detention unlawful because the purposes not carried into effect as soon as reasonably practicable or because detention continued at times during which purposes not capable of fulfilment – The plaintiff applied for order remitting proceeding to Federal Court of Australia pursuant to s 44(2A) of Judiciary Act 1903 (Cth) – Section 476B(1) of the Migration Act provided that High Court must not remit a matter "that relates to a migration decision" to court other than Federal Circuit Court – Section 468B(1) and (2) provided that representative proceeding not permitted where proceeding would "raise an issue in connection with visas ... or removal of unlawful non-citizens" – Whether proceeding related to migration decision – Whether proceeding raised issue in connection with visas or removal of unlawful non-citizens.

Supreme Court of Canada

R. v. Resolute FP Canada Inc. [2019] SCC 60 (6 December 2019). Successful appeal (majority) from the Court of Appeal for Ontario.

A river system was contaminated by mercury waste discharged by the operation of pulp and paper mill - Action for damages was commenced against the mill owners in relation to the contamination - The province granted indemnity in context of settlement of action to current and former mill owners in relation to environmental damage caused by mercury discharge - A remediation order was later issued by provincial environment regulator in relation to waste disposal site on mill property - Whether indemnity applies to cover costs of complying with remediation order.

Hong Kong Court of Final Appeal

HKSAR v Harjani Haresh Murlidhar [2019] HKFCA 47 (5 December 2019). Unsuccessful appeal from the Court of Appeal.

The appellant was charged with conspiracy to deal with money having reasonable grounds to believe that it was tainted – The appellant gave evidence that he was a businessman who held the honest belief that the person who asked him the handle the money was a bona fide middleman and an a genuine transaction – Whether a substantial and grave injustice had been done because the Court of Appeal wrongly held that the Judge has disbelieved the appellant’s asserted belief - What is the meaning of a defendant “having reasonable grounds to believe” that money is tainted for the purposes of proving the Money Laundering Offence, and in particular what is the relevance of the defendant’s subjective belief that the money is not tainted? - To what extent is “wilful blindness” relevant in determining whether the statutory test is satisfied - Given the requirements of section 159A(2) of the Crimes Ordinance, whether there can be an offence of conspiracy to deal with property having reasonable grounds to believe that such property … represents any person’s proceeds of an indictable offence - Given the requirements of subsection (1)(a) of section 159A, Crimes Ordinance, where defendants have reasonable grounds to believe that property is tainted, whether they be guilty of conspiracy if they agree to deal with the property notwithstanding that those grounds may not exist at the time of the dealing.

Judicial Committee of the Privy Council

Attorney General of Trinidad & Tobago v Ayers-Caesar [2019] UKPC 44 (9 December 2019). Unsuccessful appeal (majority) from the Court of Appeal of the Republic of Trinidad and Tobago.

The respondent was appointed as a High Court Judge after 25 years as a Magistrate - On 10 April 2017, two days before she was sworn in, the respondent was asked to identify matters that she had part-heard as a Magistrate - This request was made by the Chief Justice, who is also the head of the Judicial and Legal Service Commission (JLSC) - The appellant gave details of 28 cases; however, the Acting Chief Magistrate prepared a list of 52 - Following communications about the part-heard matters, the Chief Justice and the respondent met on 27 April 2017 - At that meeting, the Chief Justice allegedly informed the respondent that the JLSC had decided that she must resign or it would advise the President of Trinidad and Tobago to revoke her appointment - Later that day, the respondent gave the President a letter of resignation - On 19 May 2019, the respondent wrote to the President setting out the manner in which she had purportedly been forced to resign - She asserted that, as this was unlawful and unconstitutional, it was of no effect - The President responded that it was not appropriate for him to comment or act on that letter - The respondent then commenced proceedings seeking review of decisions of both the JLSC and the President - Whether the majority of the Court of Appeal was correct to find that the first instance judge gave reasons for finding the President’s refusal to reinstate the respondent was reviewable and, if not, whether the that failure to give reasons in fact mattered - Whether the President made any decision or omission in relation to the respondent’s resignation that is capable of review - Whether, in the circumstances, the President erred in law in refusing to take any steps regarding, or to accede to the Respondent’s request for, reinstatement - Whether the majority of the Court of Appeal was wrong in law in holding that in any event the claim should be allowed to be pursued on public interest grounds - Whether in any event it is necessary for the President, through the Attorney-General, to be a party to the respondent’s claim.

Supreme Court of Ireland


No decisions released during this period

Singapore Court of Appeal

Man Diesel & Turbo SE v IM Skaugen SE [2019] SGCA 80 (4 December 2019). Successful appeal from a decision of the High Court. Two of the respondents’ four claims do not satisfy any of the jurisdictional gateways on O 11 r 1 of the Rules of Court, and that Singapore is not the more appropriate forum for the dispute over Germany and Norway.

The respondents are part of the Skaugen group which provides marine and transportation services in the oil and gas industry - The appellants are part of the MAN group which designs and manufactures engines for ships - The respondents commenced proceedings in Singapore alleging that the appellants fraudulently and/or negligently misrepresented the rate of fuel consumption in a particular model of engines which they supplied to the Skaugen group (the engines) - The respondents obtained leave for service out of jurisdiction, but this was set aside by the Assistant Registrar - The HC Judge allowed the respondents’ appeal and granted service out of jurisdiction, finding that Singapore was the more appropriate forum for the dispute - The Judge granted the appellants’ leave to appeal against his decision as there were interesting points of law - The Court of Appeal allowed the appeal and set aside the service - Whether the respondents’ claim should be characterised as an aggregate claim for the purposes of satisfying O 11 - Whether the respondents’ claim should be characterised as an aggregate claim for the purposes of satisfying O 11 - Whether the respondents had established a good arguable case that O 11 r (1)( p) was satisfied - Whether Singapore is the more appropriate forum for the dispute.

Pradeepto Kumar Biswas v Sabyasachi Mukherjee [2019] SGCA 79 (29 November 2019). Unsuccessful appeal from a decision of the High Court.

The appellant repeatedly failed to comply with various directions relating to the filing and service of his appeal documents – On 12 September the SGCA administered a unless order to the appellant requiring him to rectify the deficiencies in his appeal documents, serve the relevant documents , tender the relevant to the Registry by 30 September 2019, failing which the appeal would be struck out – The appellant failed to comply with the unless order – Whether the appeal should be struck out.

Mohd Akebal s/o Ghulam Jilani v Public Prosecutor [2019] SGCA 81 (28 November 2019). Unsuccessful appeals from the High Court

Joint appeals arising from a joint trial of the appellants (Akebal and Rusli) for conviction on charges of trafficking diamorphine (Akebal) and instigating Andi to collect one packet of diamorphine, possession of methamphetamine and consumption of morphine (Rusli) – Andi was convicted on one charge of possessing not less than 29.6g of diamorphine for trafficking – Akebal appealed against conviction and sentence (death) and Rusli appealed against sentence (30 years imprisonment) – Whether the judge erred in fact and law in regarding the identification evidence before him as being of a sufficiently good quality (Akebal) – Whether a sentence of 27.5 for the amended trafficking charge was manifestly excessive – Whether the sentences should run concurrently (Rusli).

Supreme Court of the United Kingdom

R v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 (11 December 2019). Successful appeal (majority) from the Court of Appeal.

This decision concerns two appeals which were linked in the Court of Appeal - The Lancashire case concerns an area of land (Moorside Fields) which borders a primary school - Upon an application to register the land as a village green, an Inspector concluded that most of the land should be so registered, rejecting the appellant’s arguments that the land was held for statutory purposes which were inconsistent with the registration of the land as a village green - The appellant brought an unsuccessful claim for judicial review in the HC - The NHS case concerns an area of land (Leach Grove Wood), which neighbours an NHS hospital - An application was made for the land to be registered as a village green and an Inspector was engaged to conduct a non-statutory inquiry - Following this inquiry, the recommendation of the Inspector was that the land should not be registered, though this was on the basis that there was no relevant neighbourhood rather than on the basis of statutory incompatibility as had been argued by the appellant - Despite the Inspector’s views, Surrey County Council nevertheless decided to register the land and the appellant successfully challenged this registration in the HC - The Court of Appeal rejected the appellant’s appeal in the Lancashire case and granted the respondent’s (then appellant)’s appeal in the NHS case, such that the registration of both plots of land was upheld – Whether the concept of ‘statutory incompatibility’ applies to prevent land from being registered as a village green where it is held for general statutory purposes - What is the correct approach to alleged errors of fact in the public law arena? – Whether an application for registration of land as a village green has to show that there was a geographical spread of users from the locality in question - Whether a qualifying locality under section 15 of the Commons Act 2006 has to have remained the same legal entity throughout the relevant 20-year period - What standard of reasoning is required by a Registering Authority which disagrees with an Inspector’s views.

Supreme Court of the United States


Rotkiske v Klemm589 U. S. _ (2019)
(10 December 2019). Unsuccessful appeal (majority) from the United States Court of Appeals for the Third Circuit.

Rotkiske accumulated and then defaulted on roughly $1,200 in credit card debt - Respondent Klemm & Associates (Klemm) sued Rotkiske to collect an unpaid debt and attempted service at an address where Rotkiske no longer lived – Another individual accepted service and Klemm obtained default judgment in 2009 - Rotkiske claims that he first learned of this judgment in 2014 when his mortgage application was denied - He filed suit against Klemm, alleging that Klemm violated the The Fair Debt Collection Practices Act (FDCPA) by contacting him without lawful ability to collect - Rotkiske argued for the application of a “discovery rule” to delay the beginning of the limitations period until the date that he knew or should have known of the alleged FDCPA violation - Whether the FDCPA’s limitations period begins to run on the  date on which the alleged FDCPA violation occurs or the date on which the violation is discovered.

Last updated on the 12th December 2019