New Zealand Law Society - Courts roundup 1 August - 7 August 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Carter v Capital and Coast District Health Board [2024] NZSC 85 (29 July 2024)
Unsuccessful leave application – Self-represented C’s son took his own life – At time, son was compulsory inpatient under s 30 Mental Health (Compulsory Assessment and Treatment) Act 1992 – C believed son’s death attributable to health professionals’ mismanagement –
C filed proceeding in HC, seeking declarations that psychiatry is quackery, that Parliament may not make quackery lawful, and son’s treatment and care breached his common law rights affirmed in New Zealand Bill of Rights Act 1990 – C also sought damages –
SC said nothing C raised threw doubt on reasoning in judgments in Courts below – In circumstances it is not in interests of justice to grant application – Application dismissed.
Boyd v Australian Federal Police [2024] NZSC 82 (30 July 2024)
Unsuccessful leave application – B sought leave to appeal CA judgment striking out appeal as abuse of process – HC had struck out proceedings on same ground – SC previously declined earlier application for leave to appeal CA judgment declining request to appoint amicus curiae and stay appeal –
SC said proposed appeal raised no question of general or public importance – Nor did it appear to present possible miscarriage of justice – Application dismissed.
NZTSOS Inc v Minister for Covid-19 Response [2024] NZSC 83 (30 July 2024)
Unsuccessful leave application – NZTSOS represented education sector workers who challenged lawfulness of COVID-19 Public Health Response (Vaccinations) Order 2021 – Order extended vaccine mandate to certain education sector workers on 25 October 2021 – Mandate later revoked, insofar as it applied to education sector – NZTSOS said ultra vires empowering legislation unjustified and exemption criteria too strict –
NZTSOS failed in HC and CA – Both Courts satisfied mandate lawful and justified and exemption criteria not too strict – NZSTOS sought leave to appeal to SC –
SC not persuaded application raised question of general or public importance – Rather, proposed appeal in substance challenged correctness of judgments below, without raising any point of significant principle divorced from particular facts – Also, question of general or public importance to be assessed against fact over two years since mandate removed – No suggestion of miscarriage of justice – Application dismissed.
Maid v R [2024] NZSC 86 (31 July 2024)
Unsuccessful leave application – Self-represented M aviation security officer at Dunedin International Airport – On 17 March 2019, two days after Christchurch Mosque attacks, he assembled imitation improvised explosive device which he carried around public and secure areas of airport before depositing near runway building – Then photographed device and reported presence of foreign object to supervisor, air traffic control and five different media outlets –
Following defended jury trial, M convicted of taking prohibited item into security enhanced area, contrary to s 11(1A) Aviation Crimes Act 1972 – Sentenced to three-years’ imprisonment –
On 10 September 2021, CA dismissed appeal against conviction, but reduced sentence to 17 months’ imprisonment and gave M leave to apply to DC for home detention under s 80K Sentencing Act 2002 –
Despite leave to apply for home detention being granted, M did not apply – On 6 October 2021, after serving half sentence, released from prison –
Application for leave to appeal CA dismissing appeal against conviction dismissed in 2022 – In 2023, M applied unsuccessfully to DC for cancellation of imprisonment sentence – Application dismissed for want of jurisdiction – Leave to appeal to CA declined in 2024, again on jurisdictional grounds – Applied for leave to appeal to SC – SC said leave criteria not met – Application dismissed.
McFarland v Commissioner of Police [2024] NZSC 84 (1 August 2024)
Unsuccessful leave application – No 31 Vickerys Road, Wigram in Christchurch is owned by company, Lincoln Property Investments Ltd (LPIL) – LPIL shareholders were associated with Epitaph Riders motorcycle gang – Membership dwindled; remaining members “patched over” to Head Hunters motorcycle gang – As part restructuring, LPIL transferred shares to three Head Hunters associates: R, T and applicant, McF –
Neither current LPIL shareholders nor Head Hunters gang paid money to acquire Wigram property – Gang did apply funds arising from significant criminal activity, including proceeds of methamphetamine sale, towards renovation –
On 30 November 2022, HC ordered property’s forfeiture under Criminal Proceeds (Recovery) Act 2009 (CRPA) ruling it was tainted – Declined McF’s application to exclude property from forfeiture under s 51 CPRA, saying McF would not suffer undue hardship if property forfeited –
CA upheld HC decision on all ground, dismissing appeal –
McF sought leave to appeal to SC – First, he sought to contend s 51 might contemplate hardship to persons other than person identified as respondent in assets forfeiture order application – Secondly, wished to contend CPRA should not be applied in punitive manner and assets forfeiture order might cause undue hardship for s 51 purposes of s 51 if amounted to disproportionate punishment under s 9 New Zealand Bill of Rights Act 1990 (NZBORA) –
SC accepted second question, extent to which s 9 NZBORA informs undue hardship for s 51 purposes raised matter of public importance – However, this was not appropriate case to deal with issue – Application dismissed.
Body Corporate 207624 v Grimshaw & Co [2024] NZSC 87 (1 August 2024)
Unsuccessful leave application – G found liable for loss to BC caused by professional negligence, with HC awarding damages $3,268,201 and costs $1,019,866 – G appealed to CA – Four-day fixture in March 2025 allocated for substantive appeal – G also applied for stay of execution of both judgments – HC dismissed application – G appealed stay decision to CA – Significant aspect of appeal concerned BC being bound to pay judgment proceeds to litigation funder, which would then distribute part to its investors and retain part for BC until final determination of case (including all appeals) – CA, differing from HC, allowed stay – BC sought leave to appeal to SC –
SC said not able to give leave to appeal against CA order on interlocutory application unless satisfied necessary in interests of justice for SC to hear and determine proposed appeal before proceeding concerned concluded – Threshold is not met here – Application dismissed.
Hill v Te Whatu Ora: Te Whetu Tawera Mental Health Services Auckland [2024] NZSC 88 (1 August 2024)
Unsuccessful leave application – Self-represented H filed proceedings in HC, ostensibly judicial review – HC struck proceeding out under rr 5.35B(2)(a) and 15.1 High Court Rules 2016 saying did not identify any exercise of statutory power with reference to any defendant and was plainly abuse of Court process – Appeal to CA struck out under r 44A(1)(c) Court of Appeal (Civil) Rules 2005 as abuse of process, H’s notice of appeal having disclosed no arguable cause of action – H sought leave to appeal to SC, apparently reprising arguments from HC, CA –
SC said leave criteria not made out – Nothing H raised indicated Courts below wrong – Application dismissed.
Ross v Kannemeyer [2024] NZSC 89 (1 August 2024)
Unsuccessful leave application – In January of 2022, Family Court made parenting orders in relation to child of self-represented R and his former wife (Family Court decision) – R’s appeal to HC dismissed on 18 April 2023 – Contemporaneously with filing that appeal, R applied to HC for judicial review of Family Court decision – Amended statement of claim subsequently named multiple defendants –
On 8 November 2022, HC Judge issued Minute striking out R’s claims against K (court-appointed lawyer for child in Family Court), Chief Executive of Ministry of Business, Innovation and Employment | Hīkina Whakatutuki (MBIE) and R’s former counsel – Award of 2B scale costs subsequently for both K and MBIE (costs decision) – On 10 April 2024, CA declined R’s application for time extension to appeal against strike out and costs decisions – R applied for leave to appeal to SC –
SC said R’s proposed appeal related to particular circumstances of case – No matter of general or public importance arose – Nor did anything R raised suggest CA decision in error – No risk of miscarriage of justice – Application dismissed.
Putua v Attorney-General [2024] NZSC 92 (1 August 2024)
Successful leave application – Approved question whether CA correct to allow appeal – In HC and CA Crown accepted that P arbitrarily detained – Dispute over whether Crown could be liable for damages here – SC said if counsel wish to contend that previous case should no longer remain good law in New Zealand, they had also to address circumstances in which SC should overrule its prior decisions – Application allowed.
Tamati v R [2024] NZSC 91 (2 August 2024)
Successful leave application – Approved questions: (a) whether errors by trial counsel may have occasioned miscarriage of justice; and (b) whether in circumstances reliability warning was required – Application allowed.
Bath v Whakaruru [2024] NZCA 350
Unsuccessful appeal by Bath against a summary judgment granting the respondents damages for their net loss on the resale of their property – Successful application for leave to adduce resale marketing material as fresh evidence - Bath agreed to purchase a residential property from the respondents but defaulted - The respondents promptly resold the property, but at a loss – Whether it was reasonably arguable the respondents failed to mitigate their losses, hence the Judge erred in granting them summary judgment -
There was no material difference between the contractual obligation in the agreement to act in good faith on resale and the common law duty to mitigate loss - The respondents were required to take reasonable steps in the circumstances to obtain a proper price on resale - The inquiry for assessing damages for resale following cancellation was whether the respondents acted reasonably in the circumstances, which they had - The respondents faced a particularly challenging combination of circumstances – They had actively pursued a resale, responsibly marketed the property, and accepted the best resale offer (one with the highest deposit and fewest conditions) – The process adopted by the respondents was not unreasonable in the circumstances.
Federated Mountain Clubs of New Zealand Inc v Griffin Creek Hydro Ltd [2024] NZCA 360
Unsuccessful appeal by Federated Mountain Clubs (FMC) against a decision declining its application for a declaration that a concession limited the volume of water that Griffin Creek Hydro Ltd (GCHL) may extract from a creek - GCHL held a concession granted under the Conservation Act 1987 permitting it to construct and operate a hydroelectric power scheme at Griffin Creek - The concession on its face was not subject to any limit on the volume of water that may be extracted from the creek, although the initial application refers to 1.2 cubic metres per second of water being used for the scheme – Whether the approach taken to the interpretation of a resource consent granted under the Resource Management Act 1991 (RMA) applies to the interpretation of a concession -
The High Court had not erred in its approach to interpretation of the concession - The legislation governing the grant of either a concession or resource consent provided the context for their interpretation – While the respective Acts shared some similarities, they had different purposes and functions – It was incorrect to suggest that the approach to interpretation of resource consents under the RMA should be applied to interpretation of concessions granted under the Conservation Act - The interpretation of a concession which was an easement involved the rules for contract interpretation - The reasonable future reader could be expected to be aware of the application and report prepared for the concession and which are referred to in it, and thus these are relevant to its interpretation – Concession was not subject to a water-take limit - The conditions of the concession suggested an objective intention for the volume of water take to be addressed through the mechanism of resource consents.
Plumbco Commercial and Civil Ltd (In Liquidation) v Plumbco New Zealand Ltd [2024] NZCA 353
Unsuccessful appeal against a decision which awarded Plumbco New Zealand Ltd (Plumbco) payment for stock under an agreement for sale and purchase of its business - Successful cross-appeal against finding that only nominated purchaser (PPCL) was liable for amounts owing - Lally entered a Sale Agreement for his business with Gibson and his nominated purchaser (PCCL) - Plumbco and PCCL also executed a Stock Agreement for the stock held by Plumbco and Lally’s other business - Gibson, after the execution, informed Lally he was not going to make payment for stock as he did not believe it was Plumbco’s stock, prompting Plumbco and Lally to issue proceedings claiming a failure by the purchaser make payments due and owing under the Sale Agreement and the Stock Agreement - PCCL counterclaimed for misrepresentation – Whether Plumbco was required to prove that the stock was usable in order to claim payment for it -
While the purchaser acquired all stock, they were appropriately charged only for the stock which was assessed as usable - There were no circumstances which rendered the Stock Agreement as non-binding - No onus fell on Plumbco to do anything more than prove the existence of the Stock Agreement and the failure of the purchasers to fulfil its terms - Ownership was not an element of Plumbco’s cause of action for debt and breach of contract - PCCL received and used the stock agreed to purchase through the Stock Agreement - The Judge had not erred in her conclusion on the claim for misrepresentation and/or breach of the Fair Trading Act 1986 - The claim of misrepresentation relied on the reasonableness of the price at which the assets were offered – That was based on an assumption, separate to the representation, that the book values meant the assets were offered at market value - That was never represented by Lally - There was no causal link between the representation and any subsequent loss – The Judge erred in finding Gibson was not personally liable relation to the matters in dispute under the Agreement - The nomination of PCCL as purchaser did not affect Gibson’s continuing liability for performance of all aspects of the Sale Agreement - Gibson remained liable to pay for the stock in trade under the Sale Agreement, both in law, as the original contracting party, and through the agreement which reiterates the continuing liability of the named purchaser - Judgment should have been entered against Gibson and PCCL for performance of all aspects of the Sale Agreement.
A (CA 736-2023) v R 2024 NZCA 357
[H] v R 2024 NZCA 356
[L] v R [2024] NZCA 359
Jones v New Zealand Police [2024] NZCA 358
Unsuccessful application by Jones to bring a second appeal against a sentence of two years and two months imprisonment for possessing objectionable publications (child exploitation material) with knowledge or reasonable cause to believe the publications are objectionable (x5) – Jones was denied a discount for his offer and subsequent payment to charity and was afforded a one per cent discount for good character -
The proposed appeal did not involve a matter of general or public importance and there was no real risk of a more favourable outcome for the applicant on appeal - The Judge’s assessment of the appropriate discounts was necessarily evaluative - Any shortfall in the discounts provided did not lead to a manifestly excessive sentence and was largely accommodated in the Judge’s rounding, which only left a two per cent difference to that sought at sentencing - The Judge’s 10 per cent discount for remorse and rehabilitation was within range even taking into account the payment – The application was declined.
R v Stone [2024] NZHC 2046 (25 July 2024) Muir J
Sentencing – Jury found S guilty of murdering R – Long history of family violence and intimate partner violence – Cognitive deficits and complex PTSD – Accepted S did not intend to kill R – Unregulated behaviour under influence of alcohol, excessive self- defence against backdrop of multiple serious assaults and R's decision to drive in manner potentially endangering S's safety – HC said manifestly unjust to sentence to life imprisonment – Sentenced to 12 years imprisonment – Recommended Parole Board give careful assessment to personal progress in managing destructive relationships with alcohol.
R v Eastwick [2024] NZHC 2086 (30 July 2024) Dunningham J
Sentencing – E pleaded guilty to manslaughter – Mitigating factors justifying significant discounts – End sentence two years eight months' imprisonment – Disqualified from holding driver's licence for two years following release from custody.
R v D and P [2024] NZHC 2118 (31 July 2024) Johnstone J
Sentencing – Two teenage defendants, D and P, found guilty of murder – Life imprisonment manifestly unjust for both because of lack of premeditation, poor judgment arising from young ages and clear connection between upbringing, including exposure to violence, and offending – Starting point for D: 38 years for inflicting multiple stab wounds including fatal wound in frenzied attack on vulnerable individual – Starting point for P: 32 years for assisting D in attack, stabbing victim from other side and celebration attitude afterwards –
20 per cent deductions for both D and P for shared upbringing involving almost all criminogenic risk factors, including exposure to gang violence and drug use, poor role-modelling, incarcerated parents and state intervention –
25 per cent deduction for D, reflecting 17-year old’s poor impulse control, risk assessment and rehabilitation prospects given current age of 19, despite reports indicating ingrained pattern of violence –
35 per cent deduction for P to reflect extreme youth of 14-year-old, good rehabilitation prospects, and improved behaviour while in youth justice facility alongside degree of remorse –
MPI for both D and P necessary to achieve s 86 Sentencing Act 2002 purposes – Usual non-parole period one-third of determinate sentence insufficient (s 84 Parole Act 2002) – Six years’ MPI necessary for P to achieve purposes of accountability and denunciation – Ten years’ MPI for D because of need to meet those purposes and protect community given consistent resort to violence – End sentence for D: 20 years 10 months' imprisonment with 10 years MPI – Sentence for P: 14 years five months' imprisonment with six years MPI.
Poonian v British Columbia (Securities Commission) [2024] SCC 28 (31 July 2024)
Partly successful appeal from British Columbia CA – Concerned whether bankruptcy released people from having to comply with certain orders imposed on them by regulatory agency for having broken law –
Between 2007 and 2009, P and associate (P) engaged in scheme where they manipulated share price of public oil and gas company OSE Corp. then sold overpriced shares to investors – Scheme caused vulnerable investors to lose millions of dollars –
In 2014, British Columbia Securities Commission found P violated province’s Securities Act – Eventually ordered them to pay $13.5 million in administrative penalties – Commission also ordered P to pay further $5.6 million “disgorgement orders” representing amounts obtained from scheme –
In 2018, P went into bankruptcy – Section 178(1) federal Bankruptcy and Insolvency Act listed certain debts from which person not released through bankruptcy (debts “exempted from discharge”) – Commission asked British Columbia SC whether amounts P owed Commission would be exempted from discharge –
British Columbia SC said orders exempted from discharge – Said exceptions in s. 178(1)(a) relating to penalties “imposed by a court” and in s. 178(1)(e) relating to debt resulting from “obtaining property or services by false pretences or fraudulent misrepresentation” – Both applied –
CA dismissed Ps’ appeal – Said although s. 178(1)(a) exception did not apply because Commission’s decisions not “imposed by a court”, exception in s. 178(1)(e) did apply – P’s appealed to SC –
SC majority allowed appeal in part – Reversed CA’s conclusion administrative penalties exempted from discharge under s. 178(1)(e), while upholding CA conclusion disgorgement orders exempted –
SC said neither administrative penalties nor disgorgement orders exempted from discharge pursuant to s. 178(1)(a) – Words “imposed by a court” in s. 178(1)(a) did not capture orders made by administrative tribunals or regulatory agencies, such as Commission, that were subsequently registered as judgments of court –
Also, administrative penalties did not come within exception in s. 178(1)(e) as they did not result directly from fraudulent scheme – Rather, they arose indirectly as result of Commission’s decision to sanction P – Disgorgement orders, however, captured by s. 178(1)(e) exception as there was direct link between them and P’s fraudulent conduct – Appeal partly allowed.