New Zealand Law Society - Courts roundup 13 July - 19 July 2023

Courts roundup 13 July - 19 July 2023

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

2022 04 13 Coote Supreme Court 173

New Zealand Supreme Court

Time extension

Sixtus v Ardern and ors [2023] NZSC 84 (12 July 2023)

Unsuccessful time extension application – S sought leave to appeal CA Judge refusing to waive filing fee – Related appeal was from HC decision which struck out judicial review proceedings as abuse of process – S’s failure to prosecute appeal in light of fee waiver decision led to appeal being deemed abandoned – Order sealed – Leave criteria in s 74 Senior Courts Act 2016 not met – Notice of application for leave to appeal filed out of time – No point in granting extension – Application dismissed.

New Zealand Court of Appeal

Leaky building, negligence

Linehan v Thames-Coromandel District Council [2023] NZCA 288

Unsuccessful appeal from decision finding Council only had limited liability and reducing damages awarded to Trust by 50 percent due to contributory negligence on the part of appellant trustees – Trust purchased property in 2003 with the knowledge the house, constructed in 1997, suffered from weathertightness issues – Extensive remedial work carried out during 2010 and 2011, then again in 2016, pursuant to building consents issued by the Council – Claim the Council had been negligent in issuing the building consents, inspecting, and issuing code compliance certificates – HELD: Judge correct to find the trustees had only proved their negligence claim against the Council in respect of the balcony defects – Judge did not err in adopting the targeting repairs scope as appropriate approach to damages – Judge entitled to conclude the claim for stigma damages had not been proven – Failure to retain the pre-purchase report did not cause or contribute to the losses suffered by the trustees – Judge erred in finding a prudent homeowner in L’s position would have undertaking further due diligence on builder before engaging him – Judge correct to find the trustees had significantly contributed to their own losses in a causative way, and 50 percent reduction in damages within range – Appeal dismissed.

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[X] v R [2023] NZCA 289 

Orchard rateable value

Bushmere Trust v Gisborne District Council [2023] NZCA 290

Methodology used by Council for assessing capital value of BT’s property – Kiwifruit orchard – Principal issue whether SunGold kiwifruit, which was grown on the property pursuant to a licence issued to the landowner, affected the capital value of the land – Previous methodology had assessed the capital value of BT’s property as if it were equivalent to a green kiwifruit orchard, which did not require a licence – HELD: beyond dispute that the text, purpose, and context of the definition of capital value and s20(1) Rating Valuations Act 1998 meant that kiwifruit vines and supporting structures could form part of the capital value of an orchard property – Although the licence was personal property, the vines grown pursuant to that licence could become a component of capital value under s20(1) – Price BT would expect to obtain if sold the orchard would reflect the fact the kiwifruit vines were SunGold – Appeal dismissed.

MPI, murder

Frost v R [2023] NZCA 294

Successful appeal against minimum period of imprisonment (MPI) of 20 years – F pleaded guilty to the murder of his father, and his half-brother – F sentenced to life imprisonment with a MPI of 20 years – At issue was appropriate MPI length – Murder sentencing in New Zealand – Modified discount methodology (MDM) – Approach to determining guilty plea discounts for MPIs in murder sentencings – F aged 21 years at time of offending – HELD: no error in setting MPI starting point at 23 years (double murder, where murders both brutal and involved great cruelty and callousness) – MDM not a superior approach to allocating discounts for guilty pleas in murder sentencing – MPI starting point not the functional equivalent of a finite sentence – Discretionary approach best able to facilitate assessment – Preferable for judge to separately identify components of discount applying to guilty plea and personal mitigating factors – 2 year discount for guilty plea appropriate and 3 year discount for personal mitigating factors (young offender and mental health) – Appeal allowed and MPI of 18 years substituted.

Name suppression

Yikar v R [2023] NZCA 296

Unsuccessful application for name suppression – Y charged with attempting to pervert the course of justice by trying to dissuade a witness from giving evidence against Sir James Wallace (W) – Y was an employee of W and lived in his home – Y initially granted interim name suppression because W had interim name suppression – Belated application for interim name suppression made by Y, hours before W’s name suppression was to lapse – Supporting affidavit concerned potential adverse effect on Y’s mother in Turkey – HELD: application constituted an abuse of process – Y’s mother had been working in Turkey since Nov 2022, Y's appeal against conviction was dismissed Feb 2023, and application not filed until 28 Jun 2023 – Y sat on his hands, even after his counsel was asked on 1 Mar 2023 whether he wished to make any name suppression submissions – No merit in Y’s concerns – Would have provided an opportunity for W to also seek further interim suppression to preserve Y’s position – Application declined.

Further evidence, sexsomnia

T (CA 36-2022) v R [2023] NZCA 299

Unsuccessful application for leave to adduce further evidence – Unsuccessful appeal against conviction (doing an indecent act on a child) – Successful appeal against concurrent sentences of 8 months home detention for breaches of protection order – T maintained he did not consciously touch his daughter (aged 8 years old) – Evidence on sexsomnia and forensic diagnosis – HELD: evidence insufficient to lead a jury, acting reasonably, to entertain a reasonable doubt – Finding of automatism founded on sexsomnia could not be reached without expert evidence, and the expert evidence here only pointed to a possible diagnosis which could not be confirmed without further investigation – No miscarriage of justice – Conviction appeal dismissed – Sentences for breach of protection order were manifestly excessive and reduced to 6 weeks home detention (concurrent).

New Zealand High Court

Sentencing, wounding with intent

R v Ormsby-Turner [2023] NZHC 1817 (12 July 2023) Cooke J

Sentencing – O-T pleaded guilty to wounding with intent to cause grievous bodily harm, being accessory after fact to murder – 12 months' home detention, and further 12 months' standard post-detention conditions for wounding with intent – On being accessory after fact to murder convicted and discharged – 7.5 years starting point reduced to 7 years to reflect overall culpability of offending – Six months deducted for time spent at youth justice facility and on EM bail – 25 per cent discount for early guilty plea – Discounts of 15 per cent for cultural factors and 30 per cent for youth – Home detention least restrictive option given O-T’s youth and prospect of rehabilitation, and in interests of reducing overall future risk to society.

Elections, broadcast funding

NZ Outdoors & Freedom Party and ors v Electoral Commission [2023] NZHC 1823 (13 July 2023) Ellis J

Unsuccessful judicial review application – OFP and other small parties sought judicial review of Electoral Commission broadcast funding allocation under pt 6 Broadcasting Act 1989 (Act) – HC ruled no error in Electoral Commission approach to allocating money under Act for 2023 General Election cycle – HC denied declarations and orders sought - Claim dismissed.

Judicial review, joint application

Lawyers For Climate Action NZ Inc v Minister of Climate Change [2023] NZHC 1835 (13 July 2023) Palmer J

Successful joint application following Minister admitting error – Lawyers for Climate Action New Zealand Inc challenged Climate Change (Auction, Limits and Price Control for Units) Amendment Regulations 2022 (Amendment Regulations) – Particularly said Minister did not have reasonable grounds to be satisfied that settings Cabinet preferred (and Minister adopted) were consistent with s 30GC(2) or 30GC(3) Climate Change Response Act 2002 – Two-day hearing scheduled to commence in HC on 21 August 2023 –

Minister admitted erred to recommend unit limits and price control settings for 2023 to 2027 that were adopted in Amendment Regulations – Parties agreed on error and relief required – HC agreed relief appropriate – HC declared Amendment Regulations ultra vires s 30GC and directed Minister to reconsider unit limit and price control settings for 2023 to 2027.

Supreme Court of Canada

Participation in “criminal organisation”

R v Abdullah [2023] SCC 19 (14 July 2023)

Successful appeal from Ontario CA – A arrested in June 2013 following integrated police investigation into illegal firearms trafficking in Toronto – Jury convicted him of various firearm offences and one count of participation in activities of criminal organisation for purpose of trafficking weapons, contrary to s 467.11 Criminal Code – Last conviction only issue before SC –

Under s 467.11, Crown first had to prove existence of “criminal organization” – Group of three or more people, however organised, that facilitated or committed serious offence for financial or other benefit – Organized crimes attracted greater police powers for certain authorisations and warrants, and harsher sentences than groups coming together randomly to commit single offence – In 2012 judgment SC said that for criminal organisation to be “organized”, it had to have “some form of structure and degree of continuity” –

When instructing jury, trial judge read criminal organisation definition but did not mention need to identify structure and degree of continuity to qualify group as such – Jury found A guilty on all counts, including participating in activities of criminal organisation for purpose of trafficking weapons –

On appeal, A said judge’s instruction to jury insufficient because failed to explain that criminal organisation had to have structure and continuity – CA majority dismissed appeal saying jury had been properly instructed – Dissenting judge would have ordered new trial on that count – A appealed to SC –

SC allowed appeal – Said trial judge failed to explain to jury that criminal organisation one that by virtue of structure and continuity posed enhanced threat to society – Also, careful consideration of group’s structure and continuity needed to guard against improper reasoning based on shared characteristics, such as ethnicity or neighbourhood – A’s conviction for participation in activities of criminal organisation set aside – New trial on that count ordered – Appeal allowed.

United Kingdom Supreme Court

Bank duty to customer

Philipp v Barclays Bank UK PLC [2023] UKSC 25 (12 July 2023)

Successful appeal – In 2018 P and her husband fraud victims – Criminals deceived them into instructing Barclays Bank (Bank) to transfer £700,000 in two payments from P’s current account to accounts in United Arab Emirates – Instructions carried out and money lost –

P claimed Bank responsible for loss – Said Bank owed duty under contract with her or under common law not to carry out her payment instructions if, as alleged, Bank had reasonable grounds to believing she was being defrauded –

Bank applied to have claim summarily dismissed saying, as matter of law, did not owe P alleged duty – HC granted summary judgment for Bank – CA allowed P’s appeal – Said, in principle, bank owed duty to its customer of kind alleged – Whether duty arose here question which could only be decided at trial – Bank appealed to SC –

SC unanimously allowed appeal, saying Bank did not owe alleged duty to P – Restored HC order granting Bank summary judgment, but varied to permit P to maintain alternative claim based on Bank's alleged failure to act promptly to try to recall payments after fraud discovered – Appeal allowed.

Judicial Committee of the Privy Council

Appeal process, deadline

Morgan v R [2023] UKPC 25 (11 July 2023)

Successful appeal from Jamaican CA – M convicted of four counts of obtaining money by false pretences at RM Court on 7 February 2011 – M never given record of proceedings –

Section 296 Judicature (Parish Court) Act said deadline for M to draw up and file grounds of appeal (Form B1) with Courts Clerk would have been 28 February 2011 – Section 296 also said if deadline not met, appeal considered abandoned –

M said completed Form B1 and submitted it to prison authorities on 12 February 2011, as they directed – Said this fulfilled s 296 requirements – Prison authorities did not do anything further with M’s Form B1 by deadline –

On 31 March 2021 M applied for bail, pending appeal – On 28 April 2021 bail application refused as appeal abandoned – On 21 June 2021 CA said M had not complied with s 296 and refused M's application to reinstate appeal or extend time filing appeal grounds – Also refused to quash M's conviction and said would not have been able to reduce M's sentences as they had already been served –

M appealed to PC – Allowing appeal, PC said, among other things CA failed to take into account wider public interest in exercise of discretion – Whether appeal of general significance and not merely particular significance to appellant relevant criterion when exercising discretion – Here strong public interest in ventilating various administrative errors so public confidence could be maintained in judicial system – Judge in bail application judgment said “the justice system [had] failed” appellant, that his incarceration “for 10 years … would be considered oppressive” and his circumstances were “dire” – Appeal allowed.