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Supreme courts roundup, 6 to 13 February 2020

13 February 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

The Kiwi Party Incorporated v A-G [2020] NZSC 2 (11 February 2020). Unsuccessful application for an extension of time to file an application for leave for a ‘leapfrog’ appeal from the High Court.

The applicant unsuccessfully sought declarations in the HC as to the validity of the Arms (Military Style Semi-automatic Firearms) Order 2019 (the Order), the process followed by Parliament in passing the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019 (the Act) and the validity of the Act – The applicant unsuccessfully appealed to the Court of Appeal seeking a direction that the appeal be set down before a full court – The matter was set down for a hearing before a divisional court on 3 March 2020 – Whether the Court of Appeal’s allocation of the case to a divisional court provides a proper basis for the grant of an extension of time to seek leave for a leapfrog appeal to the SC.

High Court of Australia

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (11 February 2020). Finding (majority) that Aboriginal people cannot be classified as “aliens” regardless of whether they hold Australian citizenship or not.

The plaintiffs are foreign citizens, born outside Australia, who did not acquire Australian citizenship – The plaintiffs are the biological descendants of indigenous peoples – The plaintiffs' visas were cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage are co-terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1) can be "alien" within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test.

Kadir v R; Gech v R [2020] HCA 1 (5 February 2020). Partially successful appeal from the Supreme Court of New South Wales.

The appellants were jointly charged on indictment with acts of serious animal cruelty – The prosecution proposed to tender video-recordings obtained in contravention of Australian law – The prosecution proposed to tender search warrant evidence and alleged admissions obtained in consequence of contravention of Australian law – Whether the difficulty of lawfully obtaining evidence weighs in favour of admission – Whether weighing of competing public interests under s 138 different for evidence obtained in contravention of law as compared to evidence obtained in consequence of contravention of law – Whether each item of evidence admissible.

Comptroller-General of Customs v Pharm-A-Care Laboratories Ltd [2020] HCA 2 (5 February 2020).Unsuccessful appeal from the Federal Court of Australia.

No duty is owed if goods are classifiable as medicaments under heading 3004 of Sch 3 to Customs Tariff Act 1995 (Cth) – The Administrative Appeals Tribunal found vitamin preparations and garcinia preparations classifiable under heading 3004 – The Comptroller-General of Customs contended vitamin preparations and garcinia preparations classifiable under heading 1704 (sugar confectionery) or heading 2106 (food preparations) so that duty owed – Whether vitamin preparations and garcinia preparations excluded from heading 3004 by Note 1(a) to Ch 30 of Sch 3 to Customs Tariff Act– Whether Administrative Appeals Tribunal erred in classifying vitamin preparations and garcinia preparations under heading 3004.

Supreme Court of Canada

No decisions released during this period

Hong Kong Court of Final Appeal

No decisions released during this period

Judicial Committee of the Privy Council

Elefterescu v The Royal College of Veterinary Surgeons [2020] UKPC 6 (10 February 2020). Unsuccessful appeal from the Disciplinary Committee of the Royal College of Veterinary Surgeons (the Committee).

The appellant had his name removed from the Register of Veterinary Surgeons on the ground that he has been guilty of disgraceful conduct in a professional respect – In 2015 the appellant was recruited as an employee of CVS UK (CVS) - A complaint regarding the appellant was given to the respondent by a director of CVS – A formal inquiry into seven charges was referred to the Committee, alleging among other things inadequate examination of a cat prior to surgery, inadequate examination of two cats prior to anaesthesia, dishonest/misleading entries into clinical records, performing surgery on a dog with insufficient clinical justification for doing so and performing that surgery inadequately - In relation to documentation he made entries that he had performed an arthrotomy when he had not done so, found a tear of the anterior cruciate ligament when he had not done so, and removed meniscal tissue when he had not done so – Between September 2015 and February 2016 he failed to keep clear, accurate and appropriate clinical records in relation to several animals – The appellant argued that the Committee failed to properly engage with the importance or gravity of his wrongdoing, was too harsh in its assessment of potential aggravating factors, did not give weight to relevant mitigating factors and failed to distinguish between lack of competence an misconduct – Whether the decision to remove the appellant’s name from the Register was appropriate and proportionate.

Supreme Court of Ireland

Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3 (4 February 2020). Unsuccessful appeal from the Court of Appeal.

The Court of Appeal dismissed an application to extend the time within which to appeal an order of the HC – The order granted possession of certain mortgaged premises in which the appellant and her husband live to the plaintiff (lender) – Whether the court should extend time if it is satisfied that there are arguable grounds of appeal formed within the prescribed period or that there was something in the form of a mistake to excuse delay in bringing forward the appeal.

Pepper Finance Corp v Cannon [2020] IESC 2 (4 February 2020). Unsuccessful appeal against a decision of the High Court on appeal from the Circuit Court.

The issue in this case concerns the factors that an appellate court should take into account in exercising its discretion whether or not to extent time to appeal in circumstances where an appellant might meet some, but not all of the criteria identified in √Čire Continental Trading Co. Ltd. v. Clonmel Foods Ltd [1955] I.R. 170 – The appellants were nine months out of time in lodging an appeal against an order made by the County Registrar for possession of their family home - The substantive issue is that the County Registrar failed to carry out an assessment of the fairness of the terms of the mortgage as required under Council Directive 93/13/EC on Unfair Contract Terms in

Consumer Contracts – Whether, having regard to the 33rd Amendment to the Constitution the Supreme Court has jurisdiction to hear an appeal against a decision of the HC on a Circuit Court Appeal.

Singapore Court of Appeal

Anil Singh Gurm v J S Yeh & Co [2020] SGCA (5 February 2020). Successful appeal against a decision of the High Court denying leave for a foreign witness to give evidence via video link.

The HC Judge dismissed the application because the appellant was unwilling, not unable per s 62A(2)(a) of the Evidence Act (EA) to testify in Singapore and secondly that granting leave would be tantamount to a judicial endorsement of his attempt to avoid justice - Whether s 62A permitted the grant of leave to a witness in the position of the appellant - Whether s 62A(2)(a) of the EA can or should be interpreted to include situations where a witness is unwilling, rather than unable, to testify in Singapore - Whether the appellant was “unable” to attend proceedings in Singapore within the meaning of s 62A(2)(a) - If the appellant was not unable to attend in Singapore, whether leave should nevertheless be granted.

Bin Hee Heng v Ho Siew Lan (acting as executrix and trustee in the estate of Gillian Ho Siu Ngin) [2020] SGCA 4 (6 February 2020).Unsuccessful application for an extension of time to file documents in the Court of Appeal.

The appellant (BHH) contested the will of his wife (the deceased) claiming that the deceased lacked mental capacity and her 2012 will was made under undue influence – The respondent (HSL) is the deceased’s sister and filed a partially successful application for strike out portions of BHH’s statement of claim (SOC) on the basis of it being irrelevant, scandalous, frivolous or vexatious – BHH unsuccessfully filed appeals in the HC and Court of Appeal – The unsuccessful Court of Appeal hearing was heard by a three-judge coram BHH’s and the appellant was ordered to re-file his SOC as amended by the Assistant Registrar (from the first appeal) – BHH did not correct his SOC and sought judicial review to be conducted by a different coram – BHH did not file his record of appeal and core bundle in time and his appeal was deemed withdrawn – Whether there was merit in the intended appeal.

Supreme Court of the United Kingdom

A Reference by the Attorney General for Northern Ireland of devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2020] UKSC 2 (5 February 2020). Refusal to accept A-G’s application to refer the issue to the court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998.

By the Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State commenced a number of universal credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as "No. 1 relevant districts" - The Secretary of State appoints the dates for commencement by a legislative technique which requires action by the Northern Ireland Department for Communities (part of the Northern Ireland Executive) - The 2017 Order defines the "No. 1 relevant districts" as "the postcodes specified in the table in the List of the No. 1 Relevant Districts" - It is the Department for Communities which must issue such lists - The same is true of a second order made by the Secretary of State relating to "No. 3 relevant districts" and "No. 2 relevant districts" - The A-G considers that the universal credit provisions in question breach Article 1 Protocol 1, Articles 8, 14 and 12 of the European Convention on Human Rights and are therefore invalid per s. 24 of the Northern Ireland Act 1998 - The A-G submitted that a devolution issue arose because it is the Department for Communities’ issuing of lists that is necessary to give effect to the Secretary of State’s commencement orders - The Department for Communities contended that its role in issuing the relevant lists amounted to nothing more than providing administrative support to the Secretary of State - The Commencement Orders define the relevant territories by reference to lists of postcodes issued by the Department - The lists were not prepared, however, pursuant to any statutory or other power and do not have any independent legal force or effect - They are incorporated by reference into the Commencement Orders and therefore have legal effects solely by reason of the act of the Secretary of State, not the act of the Department - Accordingly, no devolution issue is raised by the reference - Any alleged breach of the Convention could not therefore arise from the publication of the lists but from the parent orders made by the Secretary of State - The Department therefore submitted that its role in issuing the lists does not have sufficient effects to constitute an "act" - The publication of the lists does not therefore lie outside the competence of the Department per s. 24(1)(a) of the Northern Ireland Act 1998 - Whether the Reference raises a devolution issue (per Schedule 10, paragraph 1 of the Northern Ireland Act 1998); specifically: does the Department for Communities’ issuing of lists that give effect to orders made by the Secretary of State commencing universal credit provisions in Northern Ireland constitute an "act" under s. 24(1) of the Northern Ireland Act 1998? – Whether the Reference raises a question of whether the Department has failed to comply with a Convention right under s. 24(1)(a).

R v North Yorkshire County Council [2020] UKSC 3 (5 February 2020). Successful appeal from the Court of Appeal by the appellant and the third respondent.

The appellant council granted planning permission for the extension of a mineral extraction site which is situated in the Green Belt – This was a magnesian limestone quarry owned and operated by the third respondent, Darrington Quarries - One of the council’s planning officers had recommended that planning permission should be granted - The National Planning Policy Framework sets out various matters which must be considered before the determination of such planning applications – Paragraph 90 of the framework, amongst other things, refers to preservation of "the openness of the Green Belt" - The respondents issued proceedings in the High Court, seeking judicial review of the decision to grant planning permission - They argued that the council had misapplied the policy framework when making its decision - The judge disagreed and dismissed their claim - The respondents appealed to the Court of Appeal, which allowed their appeal and quashed the decision to grant planning permission - Whether the appellant council misapplied paragraph 90 of the National Planning Policy Framework when considering mineral extraction in the Green Belt.

Supreme Court of the United States

No decisions released during this period

Last updated on the 13th February 2020