New Zealand Law Society - Courts roundup 11 December - 17 December 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Fleming v Attorney-General; Humphreys v Attorney-General [2025] NZSC 188 (9 December 2025)
Successful appeals from CA – F and H provided full-time care for their respective adult disabled children – Both children required full-time care and supervision –
Both brought proceedings in Employment Court claiming were “homeworkers” and Ministry of Health employees – Definition of “employees” in Employment Relations Act 2000 included homeworker—someone “engaged, employed, or contracted” by another person to do work for that person in residential building – Employees had various legal protections including minimum wage and holiday pay entitlements –
Employment Court ruled F and H engaged as homeworkers and were Ministry employees – CA overturned Employment Court’s decision regarding F, concluding she had not been Ministry employee – CA said H employee for part of period in question – Both appealed to SC –
SC unanimously allowed both appeals – Viewing arrangements real nature objectively and in context, combination of relevant factors meant Ministry engaged F as homeworker – Said Ministry engaged H as homeworker for all relevant periods – Appeals allowed.
Parker v New Zealand Police [2025] NZSC 189 (9 December 2025)
Unsuccessful recall application – Self-represented P sought recall SC declining time extension to apply for leave for leapfrog appeal from two convictions entered in separate trials in DC –
SC said for reasons advanced in previous judgment, time extension not justified – Application dismissed.
F (SC 98/2025) v R [2025] NZSC 190 (9 December 2025)
Successful leave application – Approved question whether CA correct to dismiss appeal – F had unsuccessfully appealed five years and seven months’ imprisonment after jury found him guilty of two representative charges of sexual violation by rape in DC – CA said sentence not manifestly excessive – Application allowed.
Iongi v R [2025] NZSC 191 (11 December 2025)
Successful appeal from CA – Concerned whether jury could reasonably be sure, to standard beyond reasonable doubt, MI guilty of manslaughter as party under s 66(1) or (2) Crimes Act 1961; and whether trial Judge properly directed jury regarding drawing inferences from circumstantial evidence –
Jury found FI and VI guilty of murder – MI, whose role unclear, found guilty of manslaughter – Absence of direct evidence meant case against MI depended almost entirely on presence in vehicle another driving, and in which loaded shotgun present – Crown suggested at trial MI had accompanied VI on foot at victim’s address, providing support by his presence, while FI remained in car, likely behind wheel – Defence counsel submitted that it could just as easily be inferred that MI remained in car, not as getaway driver but as passive bystander, while other two carried out offending – Jury verdicts suggested that was way jury saw things –
MI appealed both manslaughter conviction and eight years six months’ imprisonment sentence to CA – Three grounds advanced: First, trial Judge erred in admitting HI’s improperly obtained statement under s 30 Evidence Act 2006; secondly, jury’s verdict unreasonable due to evidential insufficiency; thirdly, Judge failed to adequately summarise MI’s defence in summing up – Sentence appeal contended 10 years’ imprisonment starting point manifestly excessive – CA dismissed both appeals – SC granted MI’s application to appeal conviction –
SC majority allowed appeal – Quashed conviction and entered acquittal – On first issue—whether verdict was unreasonable – Majority said properly directed jury could not have been sure MI aware of plan to fire shotgun at person and had agreed to help them effect plan – Could not therefore be liable as party to joint enterprise under s 66(2) Crimes Act –
On second issue—whether miscarriage of justice had arisen as result of judicial misdirection of jury – Said when summing up defence case trial judge’s core duty to ensure jury fully understood defence case – Detail required depended on particular case, but where multiple defendants, defence for each individual defendant had to be put fairly to jury and isolated from co-accused defences insofar as they differed from one another – Appeal allowed.
New Zealand Independent Community Pharmacy Group Inc v Te Whatu Ora Health New Zealand [2025] NZSC 192 (11 December 2025)
Unsuccessful leave application – Group of community pharmacies (Group) issued judicial review proceedings challenging two District Health Boards' decisions enabling second respondent to operate new pharmacies in Countdown supermarkets in Gisborne and Wainuiomata – HC dismissed challenge to decisions – CA dismissed appeal – Group sought leave to appeal to SC –
SC said relevant decision maker, Hutt Valley District Health Board, disestablished on 1 July 2022 and replaced by Health New Zealand | Te Whatu Ora – Importantly, relevant governing legislation, New Zealand Public Health and Disability Act 2000, repealed on 1 July 2022 – Replaced by Pae Ora (Healthy Futures) Act 2022 –
SC accepted Te Whatu Ora submission no private rights involved (given no application to quash decisions and Group sought only declaratory orders) – Further, while SC accepted might be issues of principle involved in proposed appeal, given change in legislation, not in interests of justice to grant leave – Any issues of principle should be resolved in proceeding brought under current legislation – Application dismissed.
Solicitor-General v [A] [2025] NZCA 634
[H] v R [2025] NZCA 649
Hoban v Attorney-General [2025] NZCA 644
Unsuccessful appeal by H against Human Rights Review Tribunal decision dismissing declaration of inconsistency under Human Rights Act 1993 (HRA) on the basis that s 61 HRA (“hate speech” provision) was inconsistent with the right to freedom from discrimination as affirmed by New Zealand Bill of Rights Act 1990 (NZBORA) because it only prohibited hate speech based on colour, race, or ethnic or national origins, and not hate speech based on sexual orientation -
Discriminatory nature of s 61 HRA not demonstrably justified on basis of New Zealand’s international obligations alone - Whether the omission of hate speech on the grounds of sexual orientation demonstrably justified not logically answered by pointing to inclusion in the HRA of hate speech on the grounds of colour, race, or ethnic or national origins - Discriminatory effects of the section could be demonstrably justified by focusing on Parliament’s original motivation for enacting s 61 HRA - Question raised by justified limitation under s 5 NZBORA must be addressed on the basis of current standards, and an analysis which rested solely on content of international instruments adopted 60 years ago seems inappropriate – Not clear why proscribing hate speech based on sexual orientation should impose any greater detriment to freedom of speech than was the case with the inclusion of colour, race, or ethnic or national origins in s 61 HRA – However, it was a matter for Parliament – No declaration could be made.
Zuru New Zealand Ltd v Lego Holdings [2025] NZCA 650
Successful appeal by Zuru from HC decision that Zuru’s compatibility statements constituted infringing use under s 89 Trade Marks Act 2002 (TMA) – HC also found statements were not protected by statutory defences of comparative advertising, s 94 TMA or use indicating the quality of purpose of the goods, s 95 TMA because the use had not been in accordance with honest practices - Lego leading manufacturer of plastic building bricks - Zuru marketed their own similar product - Zuru wished to inform consumers its plastic toy brick products were compatible for use with Lego’s products and sought to do so through the use of a compatibility statement on packaging of their products -
The use was not as a trade mark - Use as a trade mark in terms of s 89(2) TMA concerned with the orthodox function of a trade mark: as a badge of origin in the user - No infringement if Lego mark was not used by Zuru in a manner likely to be taken as indicating the trade origin of Zuru’s goods – If wrong, comparative advertising defence was engaged - Lego’s counter-claim of passing off and misleading conduct not made out.
R v Sowerby [2025] NZHC 3870 (10 December 2025) Downs J
Sentencing – S sentenced for three crimes of manslaughter; reckless driving causing injury; and driving while disqualified –
Failed to stop at railway crossing, drove between barriers and crossed tracks as train approaching – Collision took lives of three passengers, seriously injured fourth – S under influence of methamphetamine and disqualified from driving – Other aggravators also – Starting point 10 years eight months – Final sentence eight years' imprisonment with four-year MPI.
R v Richards and Haenga aka Herewini [2025] NZHC 3889 (10 December 2025) McQueen J
Sentencing – R (as principal) and H (as party) for G’s murder – Life imprisonment imposed – Section 104(1)(e) engaged – For R MPI under s 103 would be 17 years, reduced by six months to account for personal factors – In circumstances, 17 years MPI not manifestly unjust, reflected seriousness and callousness of offending, significant need for deterrence – R sentenced to life imprisonment with 17 years MPI – For H, MPI under s 103 would be 14 years, reduced by one year to account for personal factors – Given H's significantly lesser culpability, manifestly unjust to impose 17-year MPI – H sentenced to life imprisonment with 13 years MPI.
R v Gabriel [2025] NZHC 3892 (11 December 2025) Lang J
Sentencing – G and M guilty of manslaughter – Related incident when travelled late at night to rural address seeking person wearing clothing with gang insignia when not gang patched member – Visit purpose to retrieve clothing and inflict physical violence on person – When person came to door both attacked and suffered unsurvivable brain injury – Starting point eight years six months' imprisonment – Uplift three months for one to reflect offending occurring while subject intensive supervision sentence – 20 per cent discount reflecting guilty pleas to manslaughter before trial – Further discounts for other mitigating factors reduced end sentence for one to six years, three months' imprisonment and for other six years, six months' imprisonment – No MPI.
Bed Bath 'N' Table Pty Ltd (ACN 005 216 866) v Global Retail Brands Australia Pty Ltd (ACN 006 348 205) [2025] HCA 50
Successful appeal from Full Federal Court – Concerned using trade mark in circumstances alleged to have been misleading or deceptive conduct in trade or commerce or conduct likely to mislead or deceive in contravention of s 18(1) Australian Consumer Law (ACL) –
Trade mark "House Bed & Bath" (House B&B mark) – Global Retail Brands Australia Pty Ltd (GRBA), had used House B&B mark as name of new soft homewares stores (House B&B stores) first launched in 2021 – Included using House B&B mark on external signage over entrance to stores, internal store signage, House website, store receipts, social media, shopping centre directories, advertising, promotional materials, gift cards and employee name badges –
Bed Bath 'N' Table Pty Ltd (BBNT), well-established brand in soft homewares industry – Operating store network throughout Australia selling soft homewares under trade marks including "BED BATH 'N' TABLE" (BBNT mark) since 1976 – Until GRBA opening soft homewares store using House B&B mark and branding, BBNT had been only retailer in Australia using words "bed" and "bath" in its name for over 40 years –
Federal Court primary judge ruled GRBA using House B&B mark did not infringe BBNT mark as provided by s 120(1) Trade Marks Act 1995 (Cth), because House B&B mark not "substantially identical with, or deceptively similar to" BBNT marks – However, said GRBA's conduct was nevertheless misleading or deceptive in contravention of s 18(1) ACL – Said GRBA's "wilful blindness" to possibility of confusion relevant to objective question of whether GRBA's conduct misleading or deceptive – GRBA appealed and Full Court) allowed appeal – BBNT appealed to HC –
HC unanimously said Full Court reasoning miscarried – Primary judge's reasons disclosed no error of legal principle, fact-finding or reasoning process – No scope to interfere with primary judge's orders – Appeal allowed.
The Court of Appeal judges have advised that LawPoints falls into the category of a Law Digest where a decision prohibits publication in news media or on the internet, but allows it in a law report or law digest. LawPoints will sometimes include information on such decisions, but lawyers will have to log in using their lawyer ID to view the decision.
Request copies of other cases and articles from the Law Society Library.