New Zealand Law Society - Courts roundup 15 August - 21 August 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Halse v Employment Court [2024] NZSC 98 (12 August 2024)
Unsuccessful leave application – Leave application flowed from Employment Court decision of 13 September 2022 – Court struck out H’s application for judicial review of several Employment Relations Authority decisions – Authority decisions related to ongoing dispute between H and Rangiura Trust Board – H sought leave to appeal CA Judge declining interlocutory application for recission of existing directions and fixture vacation –
SC said if CA decision correct, question over SC jurisdiction to hear any proposed appeal – No question of appearance of miscarriage of justice, as term used in civil context arose – Not in interests of justice to hear proposed appeal which had been overtaken by subsequent events – Application dismissed.
Craig v Chief Executive Department Of Corrections [2024] NZSC 97 (13 August 2024)
Unsuccessful leave application – On 19 January 2024, self-represented C sentenced in DC to 16 months imprisonment for three breaches of protection order, imprisonment of one month for possession of cannabis and imprisonment of one month for failing to assist with computer search by providing PIN code – All sentences imposed concurrently and after guilty pleas –
On 14 February 2024, C applied for habeas corpus writ – On 16 February 2024 HC dismissed application – CA dismissed appeal – Sought leave to appeal to SC –
SC said no issue of general or public importance raised – No suggestion decisions below in error – No risk of miscarriage of justice – C no longer detained – Habeas corpus writ could not in any event be issued – Application dismissed.
McQuade v Commissioner of Police [2024] NZSC 99 (13 August 2024)
Unsuccessful leave application – McQ owned 2013 Holden HSV Clubsport R8 which had been restrained since 2020 under Criminal Proceeds (Recovery) Act 2009 (CPRA) – Restraining order connected to McQ’s involvement in large-scale methamphetamine manufacturing and distribution operation, for which sentenced to five years three months’ imprisonment –
Commissioner applied for profit forfeiture order of $953,134.93 – Due to delays in examining McQ (attributable to combination of COVID-19 restrictions, prison administration, Christmas break and changes in McQ’s counsel) not set down for hearing before 2025 –
Commissioner of Police also applied for order to sell vehicle (along with certain other restrained vehicles), under s 35(e)(v) of CPRA – HC granted order – CA upheld order – McQ applied for leave to appeal to SC –
SC said proposed appeal would turn on particular facts and raised no question of public or general importance – In neither decision below was there any “apparent error … of such a substantial character that it would be repugnant to justice to allow it to go uncorrected” – No risk of substantial miscarriage of justice – Application dismissed.
Body Corporate 207650 v Singh [2024] NZSC 100 (15 August 2024)
Unsuccessful leave application – BC for Richmond Terraces, unit title development in South Auckland, applied for leave to appeal from CA – CA lifted stay of proceeding S brought challenging BC failure to supply adequate reports about scheme of arrangement approved under s 74 Unit Titles Act 2010 (stayed proceeding) –
S owned unit in Richmond Terraces – S bankrupted on BC’s application following non-payment of levies to cover additional costs for repairs for weathertightness issues discovered in 2009 – Stay imposed following S’s bankruptcy, since been annulled –
SC said might be general questions about finality of determinations here and inter-relationship between that and questions about abuse of process – However, this appeal not appropriate vehicle to consider questions – Proposed appeal turned on facts and did not raise question of general or public importance, or of general commercial significance – No appearance of miscarriage of justice in civil context – Application dismissed.
Carter v Capital and Coast District Health Board [2024] NZSC 102 (16 August 2024)
Unsuccessful applications for recusal, recall – Self-represented C applied for recall of SC 29 July 2024 decision, dismissal of his application for leave to appeal – Said current panel should not decide application – SC said no proper grounds put for recusal –
C’s leave application related to proceedings filed in HC – HC ruled C’s statement of claim disclosed no reasonably arguable cause of action – CA upheld ruling – Dismissing leave application SC said nothing C raised threw doubt on reasoning of Courts below – Regarding recall, SC said Judgment recalled in exceptional circumstances – Application dismissed.
New Zealand Steel Ltd v E Tū Inc [2024] NZCA 386
Successful application by NZ Steel for leave to appeal against a decision of the Employment Court which held that employees should get "make-up pay" under the NZ Steel collective agreement with E Tū Inc, where they are requested to work outside their established ordinary hours of work and, as a result, cannot complete their ordinary hours - E Tū submitted an employee’s “ordinary hours” referred to their rostered hours so if they missed any rostered hours because they were asked to work different hours, they would still receive make-up pay for the original rostered hours - NZ Steel submitted “ordinary hours” referred to the number of hours an employee ordinarily works so they would only receive make-up pay if they were unable to complete the full number of hours they ordinarily work as a result of a request to work different hours -
It was seriously arguable whether the Employment Court should have adopted an approach of interpreting the Agreement by relying on a practice that was disputed by one of the parties and on a proposed amendment to the Agreement in 2018 that was not agreed - Questions of interpretive principle went beyond the construction of the Agreement and were of general importance so should be submitted to the CA for decision - application granted on approved question of law.
[R] v P (CA602-2023) [2024] NZCA 385
Evans v Evans [2024] NZCA 389
Unsuccessful application by Mr Evans to bring a second appeal against a decision regarding a parenting order for the parties two school age children - Mrs Evans has full-time day-to-day care of the children and Mr Evans permitted bi-weekly contact – A condition stipulated that Mr Evans’ brother was not to have any contact with the children - Leave to bring a second appeal will not be granted lightly - Mr Evans needs to show that there was a material error of law or fact capable of bona fide and serious argument in the HC decision that is sufficient to justify the cost and delay of a second appeal -
Factual issues considered by the HC Judge were Mr Evans’ use of physical violence against the children, safety risks resulting from Mr Evans’ conduct, Mr Evans’ allegations that Mrs Evans (a recovering alcoholic) had relapsed and her ability to parent the children safely - Judge had before him a substantial amount of evidence and concluded that the evidence showed a concerning power and control dynamic on the part of Mr Evans – Totality of the evidence persuaded Judge that the parties could not engage in a shared care arrangement and that it would not be in the children’s best interests to put such an order in place – Fact that alternative views of evidence could have been accepted do not make a factual finding wrong - If conclusions are properly available on the evidence, no error arises - Second appeal not an opportunity to relitigate findings of fact - Application declined.
R v Tahitahi [2024] NZHC 2284 (14 August 2024) Moore J
Sentencing – T pleaded guilty to E’s murder – Shot victim in back at close range after church service – HC said s 104 Sentencing Act 2002 applied – Offending involved calculated planning and committed with high level of callousness – Starting point MPI 17 years imprisonment not manifestly unjust – Under s 103, 12-month uplift justified for T's criminal history and to reflect T offended while on parole – 12-month reduction justified given T's late guilty plea and background, which included child abuse – Other mitigation assertions not proved on balance of probabilities as s 24 Sentencing Act required – End sentence life imprisonment with 17-year MPI.