New Zealand Law Society - Courts roundup 11 April - 17 April 2024

Courts roundup 11 April - 17 April 2024

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

High Court Judges Bench

New Zealand Supreme Court

Murder, co-accused, jury directions

Gibson-Park v R [2024] NZSC 25 (9 April 2024)

Unsuccessful leave application – G-P along with co-defendant P convicted after jury trial of murdering N – G-P also convicted of arson – CA dismissed appeal against conviction – Applied for leave to appeal to SC –

First proposed appeal ground, CA erred to hold trial counsel’s error relating to “misconceived” defence of causation did not risk affecting trial outcome – Secondly, CA erred to find orthodox jury directions cured undue prejudice arising from P’s extensive police statement which contained inadmissible and unfairly prejudicial references to G-P’s actions and state of mind, as well as to irrelevant matters and alleged arson –

SC said nothing G-P raised threw doubt on CA analysis that primary defence (lack of murderous intent) clearly before jury and that misconceived pursuit of causation defence did not detract from this – Nor did anything raised throw doubt on Court’s conclusions on effect of directions given – As was joint attack and defendants were effectively running cutthroat defences, there no plausible argument for severance –

SC said no apparent risk of miscarriage of justice and not in interests of justice to grant leave application – Application declined.

Fraud, cultural context

Zheng v R [2024] NZSC 27 (10 April 2024)

Unsuccessful leave application – Z convicted after HC Judge-alone trial of offence for obstructing Serious Fraud Office Investigation (s 44 Serious Fraud Office Act 1990) – CA dismissed appeal against conviction – Applied for leave to appeal to SC –

Leave grounds Judge did not take sufficient account of cultural context in findings – In Mr Zheng’s submission, Gault J viewed evidence through lens of good commercial practice in New Zealand and failed to take proper account of cultural background and in particular, guanxi principles – On appeal, CA did not accept cultural considerations could relieve Z from culpability –

SC said appeal related to particular circumstances of Z’s case – No issue of general or public importance arose – Nor did anything Z raised suggest cultural considerations could have affected Judge’s conclusions – No risk of miscarriage of justice – Application declined.

East West Link, RMA, Auckland Unitary Plan

Royal Forest and Bird Protection Society of New Zealand v New Zealand Transport Agency [2024] NZSC 26 (11 April 2024)

Successful appeal from HC – East West Link (EWL) proposal from NZTA Waka Kotahi (Waka Kotahi), for construction, operation and maintenance of new four-lane arterial road and associated works in Auckland to connect State Highway 20 at Onehunga with State Highway 1 at Penrose/Mt Wellington – Waka Kotahi required approvals (resource consents and notices of requirement) before it could proceed with EWL – Legal proceedings related to whether approvals could be given consistently with Resource Management Act 1991 (RMA) and relevant planning instruments, Auckland Unitary Plan (AUP) and New Zealand Coastal Policy Statement (NZCPS) –

Expert Board of Inquiry (Board) first heard issue – Granted Waka Kotahi necessary approvals with conditions (with exception of coastal permit for dredging, which was only granted in part) – Royal Forest and Bird and Ngāti Whātua Ōrākei Whai Māia Limited (Ngāti Whātua Ōrākei) appealed Board’s decision to HC – Because EWL treated as non-complying activity for consent purposes, had to pass through “gateway” test in s104D(1)(b) RMA and further test contained in s104 – Notices of requirement had to satisfy similar test in s 171 – Broadly, appeal turned on whether EWL contrary to objectives and policies of AUP (which would mean could not meet s104D(1)(b)) and whether Board had failed to properly have regard to NZCPS for s 104 and s 171 purposes – HC dismissed appeals – On 28 May 2021, SC granted leave to Royal Forest and Bird to appeal HC judgment on whether Court correct to dismiss appeal against Board’s decision –

SC majority allowed appeal on result – Said decision should be remitted to Board for reconsideration in line with judgment terms – Different majority on reasons said AUP, read in line with NZCPS, contemplated narrow exception for significant infrastructure with adverse effects on indigenous biodiversity – Said Board erred as took “overall judgment” approach, conflated requirement that EWL be “reasonably necessary” under s 171 with requirement that there be “no practicable alternative” to EWL under NZCPS and AUP and assessed environmental effects in manner inconsistent with policies – Given these errors, Court found that proposal should be remitted back to Board – Appeal allowed.

New Zealand Court of Appeal

Employment law, Definitions of homeworker and of work, Personal grievance

Attorney-General v Fleming [2024] NZCA 92

Partially successful appeal concerning the basis on which the care of adult disabled people by family members has been funded since 2013 – Respondents both care for their adult disabled children, receiving funding since 2013 to do so in different forms - They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide – First respondent also advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement – EC held that respondents were both employees of the MOH and made declarations to that effect – EC declined to award compensation to first respondent and declined to impose a penalty on the Crown - The Crown appealed both decisions – First respondent cross-appealed – Definition of homeworker and of work under the Employment Relations Act 2000 – HELD: Appeal in CA 371-2021 allowed – Cross-appeal in CA 371-2021 dismissed – Appeal in CA 742-2021 allowed in part.

Standard of proof, Inferential reasoning direction, Unreasonable verdicts, Cannabis for sale - Login Required

[D] v R [2024] NZCA 97

Family law, Interim injunction, Contempt of court

Newsroom NZ Ltd v Solicitor-General [2024] NZCA 101

Successful appeal against HC injunction - Newsroom NZ Ltd (Newsroom) published a video documentary and associated online articles about Oranga Tamariki’s practice of reverse uplifts - Under that practice Māori tamariki in need of care who had been placed in what they and their Pākehā foster parents had been promised were homes for life, were several years later removed from those homes and instead placed with wider whānau of their birth parents - Solicitor-General considered the documentary breached s 11B(3) Family Court Act 1980, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court - Successful application for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then - Newsroom appealed the decision granting the injunction and a subsequent costs judgment on two issues – Whether the impugned publications constitute a report of proceedings in the Family Court within the meaning of s 11B - Whether, if they do constitute a report of proceedings, they contain identifying information as per s11C – HELD: Publications amounted to a report of proceedings for the purposes of s 11B - did not contain any identifying information of the protected (or connected) persons as defined in s11C and therefore they did not breach s 11B(3) – Appeal allowed, injunction quashed.

Estate law, Maori land, Joint tenants, Tenants in common

Boon v Estate of Niki Uenukuiterangihoka Tuwhangai [2024] NZCA 107

Unsuccessful application to strike out notice of appeal – Unsuccessful appeal – The appellant is the adopted daughter and administrator of the estate of the late Mrs Ormsby - Mrs Ormsby and the late Mr Tuwhangai were whānau and were very close - In late 1989 they decided to purchase shares in Māori freehold land known as the Kawhia U2B block - In 1992 the owners approved the sale of the shares to Mrs Ormsby and Mr Tuwhangai as joint tenants - Mrs Ormsby passed away in November 2016 - Mr Tuwhangai filed an application for transmission by survivorship of Mrs Ormsby’s interest in the shares with the Māori Land Court – The appellant filed an objection, considering that the 1992 order should have recorded that the shares were to be transferred to Mrs Ormsby and Mr Tuwhangai as tenants in common – As a result the shares would not pass by survivorship; rather a half interest in the shares would form part of Mrs Ormsby’s estate – The appellant unsuccessfully sought to reverse the effect of the 1992 order in the Māori Land Court – Appellant then applied to the Chief Judge of that Court under s45 Te Ture Whenua Māori Act 1993 (the Act), asserting there had been a mistake in the presentation of the facts to the Māori Land Court in 1992 - After a contested hearing, the Chief Judge found there had been such a mistake and that the Māori Land Court had erred in making the 1992 order - He amended the order to record that Mr Tuwhangai and Mrs Ormsby held the shares as tenants in common, rather than as joint tenants - Mr Tuwhangai appealed to the Māori Appellate Court - It allowed the appeal and found there had been no error in the presentation of the facts in 1992 - The Court revoked the Chief Judge’s order and affirmed the 1992 order – Appellant now appeals the Māori Appellate Court’s decision to this Court - Mr Tuwhangai resisted the appeal - He also made an application seeking to strike out appellant’s appeal on the basis that there is no right of appeal to this Court – Whether application to strike out appeal should be granted – Whether appeal should be allowed - HELD: No jurisdictional impediment to CA hearing appeals from decisions of the Māori Appellate Court dealing with orders made by the Chief Judge under s44 of the Act – 1992 order not erroneous in law – Application to strike out appeal declined - Appeal dismissed.

High Court of Australia

Migration, Minister personally making decision

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (10 April 2024)

Successful appeal from Full Court, FCA – Principal issue whether Minister, when personally exercising power conferred by s 501CA(4) Migration Act 1958 (Cth) (Act) to revoke decision under s 501(3A) to cancel visa granted to person, required to personally read representations person made to Minister, or whether Minister might consider by examining other documents summarising representations –

McQ United States citizen – Visa cancelled in 2019 s 501(3A) Act (cancellation decision) because Minister was satisfied McQ did not pass "character test" in s 501(6) – McQ made representations Minister seeking revocation of cancellation decision – Department of Home Affairs supplied Minister with: "Submission" summarising McQ’s representations (departmental submission); draft statement of reasons to support decision not to revoke cancellation decision; and copies of McQ’s actual representations and those made on his behalf, as well as other relevant material – In April 2021, Minister, having elected to make decision personally, decided not to revoke cancellation decision, adopting as his reasons for decision draft reasons provided to him from Department –

Primary FCA judge said Minister did not read anything beyond departmental submission and draft statement of reasons when making his decision – Said exercising s 501CA(4) power, Minister obliged to give proper, genuine and realistic consideration to merits of McQ’s representations – When personally exercising power, could only be achieved through Minister personally reading, considering and understanding representations – Summary in departmental submission no adequate substitute – Full Court agreed with primary judge, saying choice to exercise power under s 501CA(4) personally obliged Minister to "personally and directly consider representations made in support of revocation” –

Before HC, no dispute that Minister read only departmental submission and draft statement of reasons prior to making his decision – HC said not condition of valid exercise of s 501CA(4) power for Minister, when personally exercising that power, personally to read and examine submissions, representations and other material received in every case – Minister might rely instead upon departmental briefs and submissions which accurately summarised material – So long as representations made appropriate to be summarised and distillation process accurate and provided full account of essential content, lawful for Minister to read summary and nothing more – HC did not accept summary in departmental submission and draft reasons here "deficient" – Minister entitled to rely on departmental submission to make decision – Appeal allowed.

Migration, Tribunal jurisdictional error, materiality of

LPDT v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs [2024] HCA 12 (10 April 2024)

Successful appeal from Full Court, FCA – Concerned jurisdictional error and requirement of materiality – Differences of expression and emphasis previously adopted by individual Justices about these issues have been unanimously put aside in favour of guidance with which all Court agreed –

LPDT, Vietnamese national, arrived in Australia in 1997, held Class BS Subclass 801 (Spouse) visa – Between 2011 and 2017, convicted of various offences and sentenced to several periods of imprisonment, including for four years and six months – As result, in 2019, visa subject to mandatory cancellation under s 501(3A) Migration Act 1958 (Cth) (Act) – Minister’s delegate subsequently refused application to revoke cancellation under s 501CA(4) (delegate's decision) – LPDT applied to Administrative Appeals Tribunal (Tribunal) to review delegate's decision – Tribunal, considering under s 501CA(4) whether there was "another reason" why cancellation should be revoked, required to comply with Ministerial direction under s 499 Act (Direction 90) – Direction 90 required Tribunal to engage in evaluative assessment involving weighing relevant mandatory considerations – Having engaged in assessment, Tribunal ultimately not satisfied there was "another reason" why cancellation should be revoked and affirmed delegate's decision –

Primary FCA judge dismissed LPDT’s application for judicial review of Tribunal's decision saying Tribunal had not erred in treatment of relevant matters (set out in para 8.1.1(1)(a), (b) and (g) of Direction 90) to which required to have regard in assessing one of mandatory considerations under Direction 90 – On appeal, Full Court said Tribunal's findings on sub-paragraphs did involve error, but dismissed appeal because error not material and therefore not jurisdictional –

Before HC, no dispute Tribunal's decision involved error – Namely, failure to comply with Direction 90 as condition governing its decision under s 501CA(4) – Issue whether error material to constitute jurisdictional error –

HC said Tribunal's error material – Decision could realistically have been different had there been no error – To determine whether threshold of materiality met, sufficient here to have regard to face of Tribunal's reasons, which revealed error contributed to evaluative and discretionary decision Tribunal made exercising statutory power under s 501CA(4) – Not for Court to assume or speculate about how Tribunal would have undertaken weighing matters in para 8.1.1(1) had error not been made – Further, no fact before HC provided basis to consider outcome would inevitably have been same had error not been made – Tribunal's decision attended by jurisdictional error and void – Appeal allowed.

Supreme Court of Canada

Letter of Guarantee, Fraud exception

Eurobank Ergasias SA v Bombardier Inc [2024] SCC 11 (5 April 2024)

Unsuccessful appeal from Quebec CA – Concerned whether Canadian bank required to refuse payment to beneficiary of letter of credit because of third party’s fraudulent behaviour, attributable to beneficiary –

In 1998, Bombardier Inc, Canadian aviation company, concluded procurement contract with Hellenic Ministry of Defence (HMOD) in Greece to sell 10 firefighting planes – Also concluded second contract under which Bombardier agreed to subcontract some work to Greek companies – Second contract said if, at end of 10-year term, Bombardier did not fulfil subcontracting obligation, would owe HMOD certain amount of money relative to main contract –

To secure money Bombardier might owe HMOD under second contract, Greek bank at time (now Eurobank Ergasias S.A., or, Eurobank) issued letter of credit guaranteeing Eurobank would pay if Bombardier did not (Letter of Guarantee) – For its part, Eurobank obtained letter of credit from National Bank of Canada to secure reimbursement in amount it would need to pay HMOD under Letter of Guarantee if latter claimed Bombardier failed to perform obligations under second contract (Letter of Counter-Guarantee) – In short, letters would work as follows: if HMOD asked Eurobank to honour Letter of Guarantee, Eurobank would then be entitled to turn to National Bank to reimburse it under Letter of Counter-Guarantee –

Dispute arose between HMOD and Bombardier regarding Bombardier’s subcontracting obligations – HMOD demanded payment from Eurobank under Letter of Guarantee – Responding, Bombardier asked Superior Court of Québec for order to stop National Bank from honouring subsequent demand for repayment by Eurobank under Letter of Counter-Guarantee – Bombardier alleged HMOD, third party to Letter of Counter-Guarantee, committed fraud by demanding payment before dispute resolved by planned arbitration procedure and, because of Eurobank’s knowledge and participation in fraud, National Bank should be prevented from needing to repay Eurobank under “fraud exception” – Under Canadian law, banks had nearly absolute obligation to pay letter of credit to beneficiary when valid demand made, except when beneficiary committed fraud and brought to bank’s attention before payment – Here, Bombardier argued given HMOD’s fraudulent conduct, Eurobank’s demand for payment under Letter of Counter-Guarantee was, by extension, also fraudulent –

Superior Court rejected Eurobank’s demand for payment under Letter of Counter-Guarantee under fraud exception – Said manner HMOD obtained payment under Letter of Guarantee fraudulent, and Eurobank’s own conduct fraudulent because payment to HMOD resulted from fraud of which was aware – Said National Bank not required to repay Eurobank – Quebec CA majority agreed and dismissed appeal – Eurobank appealed to SC –

SC majority dismissed appeal – Said because Eurobank, as Letter of Counter-Guarantee, beneficiary knew of and participated in HMOD fraud, fraud could be attributed to Eurobank – Requirement there be fraud by beneficiary to apply fraud exception met – Moreover, no question Eurobank’s fraud was brought to National Bank’s attention as insurer of Letter of Counter-Guarantee – Trial Judge rightly enjoined National Bank from paying out any amount under Letter of Counter-Guarantee to Eurobank and CA made no mistake in that conclusion – Appeal dismissed.

Indigenous rights, Treaty Land Entitlement, Crown conduct

Shot Both Sides v Canada [2024] SCC 12 (12 April 2024)

Successful appeal from Federal CA – Concerned whether breaching Indigenous tribe’s treaty land entitlement actionable in Canadian courts before coming into force of s 35(1) Constitution Act, 1982, which recognised and affirmed existing Aboriginal and treaty rights of Aboriginal peoples of Canada –

Blood Tribe are member of tribe of Blackfoot Confederacy of First Nations – In 1877, Treaty No. 7 between Crown and Confederacy established Blood Tribe Reserve No. 148, largest reserve in Canada and Blood Tribe home – Reserve’s size to be set by treaty land entitlement (TLE) provisions, based on formula promising one square mile for each family of five persons, or in that proportion for larger and smaller families –

Blood Tribe long claimed reserve size did not respect TLE formula – In 1971, Blackfoot researcher gathered information on total number of people in Blood Tribe for years 1879 to 1884 and, based on information, confirmed existing reserve boundaries did not match boundaries owed under TLE formula – Blood Tribe formally sought to negotiate with Minister of Indian Affairs, who rejected its claims –

In 1980, Chief at time, SBS, commenced action together with others on behalf of Blood Tribe in Federal Court – Alleged breaches of Crown’s fiduciary duty, fraudulent concealment and negligence, and sought declaratory relief and damages for breach of contract arising from Crown’s failure to fulfil TLE according to prescribed formula (TLE Claim) –

Trial judge dismissed all claims except TLE Claim, concluding Crown miscalculated reserve size, underestimating Blood Tribe’s membership – Said Crown’s conduct during reserve’s creation unconscionable – Said although facts underlying TLE Claim discoverable in 1971 or shortly thereafter, applicable six-year limitation period did not begin to run until 1982, when enactment of s 35(1) Constitution Act, 1982 created new cause of action for treaty breaches – Remedies sought for TLE Claim therefore not statute-barred because action commenced in 1980 –
Federal CA allowed Crown’s appeal – Said TLE Claim statute-barred – Said s 35(1) did not create new treaty rights and remedy available for TLE Claim prior to 1982 regardless of framed cause of action – Blood Tribe appealed to SC –

SC unanimously allowed appeal in part and issued declaratory relief – Said s 35(1) did not create cause of action for breach of treaty rights – Treaty rights flowed from treaty, not Constitution, and treaties enforceable upon execution and gave rise to actionable duties under common law – Blood Tribe’s TLE Claim enforceable at common law and actionable prior to s 35(1) coming into force – Blood Tribe did not contest trial judge’s finding TLE Claim discoverable as early as 1971 or action was not commenced until 1980 – Consequently, TLE Claim statute-barred by operation of applicable six-year limitation period –

However, SC said declaratory relief warranted here given longevity and magnitude of Crown’s dishonourable conduct towards Blood Tribe – Appeal allowed in part.

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