New Zealand Law Society - Courts roundup 16 March - 22 March 2023

Courts roundup 16 March - 22 March 2023

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

Supreme Court NZLS 2013 06 10 3

New Zealand Supreme Court

Name suppression, appeals standard

M (SC 123/2022) v R and anor [2023] NZSC 19 (14 March 2023)

Unsuccessful leave application – M companies (M) applied for leave to appeal against CA decision on name suppression – M interrelated land development businesses – Employed N in 2017 – N convicted of 45 dishonesty charges and sentenced to imprisonment for four years 10 months – Offending completely unrelated to M – Occurred some years before they employed N – N alerted them to possibility he might be charged with criminal offending –

M granted interim name suppression day before N’s trial – Subsequently M and N applied for permanent name suppression – Application dismissed – On appeal, CA allowed M’s but declined N’s application –

SC said appropriate standard for appeals potentially point of public importance – Not appropriate to give leave here – Firstly, SC did not have benefit of CA considered analysis on point – Second appeal standard not determinative of case outcome – No appearance of miscarriage of justice – Application dismissed.

Costs, public interest

Moncrief-Spittle and anor v Regional Facilities Auckland Ltd [2023] NZSC 20 (14 March 2023)

Successful costs reduction – CA had reduced HC costs award by 70 percent, same discount on CA costs – Partly because of genuine public interest in matter – After parties not agreeing, SC applied similar approach, 70 per cent reduction to $10,000.

Internal Affairs, Minister

A (SC 70/2022) v Minister of Internal Affairs [2023] NZSC 21 (16 March 2023)

Successful leave application – Approved question whether CA correct to dismiss appeal.

Construction contract,

SRG Global Remediation Services (NZ) Ltd v Body Corporate 197281 and ors [2023] NZSC 22 (20 March 2023)

Unsuccessful leave applications – SRG Global Remediation Services (NZ) Ltd (SRG) and Body Corporate 197281 (BC) involved in proceedings relating to construction contract to which Construction Contracts Act 2002 applied – Both filed applications for leave to appeal to SC –

SC said nothing BC raised called into question CA assessment of facts or where balance lay – Other matters specific to particular case and did not raise any question of general importance or of commercial significance – Nor did anything BC raised indicate appearance of miscarriage of justice –

SRG proposed appeal turned on factual inquiry specific to particular combination of circumstances – No question of public importance or commercial significance arose – No appearance of miscarriage of justice – Applications dismissed.

New Zealand Court of Appeal

Waiver, Crown Law legal advice

Water Users’ Group (NZ) Inc v Minister for Local Government [2023] NZCA 61

Unsuccessful appeal against judgment declining to order disclosure of legal advice provided to respondents by the Crown Law Office – 2021 respondent Minister placed before Cabinet written proposals for a review of the delivery services for drinking water, wastewater and stormwater (the Three Waters reforms) – One document detailed a high-level summary of legal advice provided by the Crown Law Office concerning the Crown’s obligations to Māori in respect of the reforms – Paper was proactively released to the public online, but subsequently withdrawn and replaced with redacted versions – HELD: premature to rule on the issue of waiver under s65 Evidence Act 2006 in isolation from consideration of the process by which a court might make directions for the production of any documentation the subject of waived privilege – Discovery process should be pursued and other avenues exhausted prior to determination of the waiver of privilege contention – Appeal dismissed.

Strike out, abuse of process

Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63

Successful appeal against High Court decision to strike out proceeding without service, as an abuse of process – Appeal under R5.35B(3) High Court Rules – History of R5.35A and R5.35B reviewed in considering the proper ambit and application – Claim sought to be advanced by appellant might later be shown to be untenable as a matter of law, but further information required – No doubt appellant was genuine in their grievance – HELD: not for the Court at the very preliminary and pre-service stage to take upon itself to form the view that such a claim disclosed no reasonable cause of action or was untenable – Judge wrong to regard appellant’s proceeding as plainly abusive of the process of the court and wrong to strike it out under R5.35B – Appeal allowed – HC decision set aside and proceeding reinstated.

Evidence admissibility - Login Required

Pou v R [2023] NZCA 64

Successful appeal against pre-trial rulings certain evidence admissible – P charged with murdering his partner (S) – Initial conviction quashed and retrial ordered – Evidence of S’s mother (C) regarding a headstone comment made by her daughter was not relevant to the issues in the trial – Question of whether or not C’s evidence about her daughter’s reference to a headstone was based on speculation because she did not clearly hear what her daughter said did not inform issue of whether or not P possessed murderous intent at the time of the fatal assault – Undisputed evidence that P struck B causing her nose to bleed profusely – Addition of other evidence, including photographs, from police and ESR regarding the location of the bloodstain and identifying the blood stain as being B’s blood would not add anything not already established in the agreed summary of facts – HELD: evidence unfairly prejudicial to P to a degree exceeding its probative value – Appeal allowed – Ruling substituted that evidence inadmissible.

Propensity evidence - Login Required

Harakh v R [2023] NZCA 65

Unsuccessful appeal from pre-trial ruling that H’s previous conviction for sexual connection with a person under 16 admissible as propensity evidence at trial – H charged with sexual connection with a young person (representative count) – Alleged H (then aged 26) had a relationship with complainant R when she was aged 14 to 15 – Previous offending was against S (aged 15, when H aged 21) where several incidents of intercourse in the course of a single relationship – O v R distinguished – Relevant to 5 year time gap that H would not have been able to pursue a sexual relationship with a female under 16 while in prison, and limited opportunity to do so while on home detention – Fact H met the females through friends, and they were in a “relationship of sorts” in both cases relevant to assessing overall degree of similarity – Proposition rejected that adult sexual attraction to postpubescent individuals aged under 16 was “relatively normal” – HELD: probative value outweighed any risk of unfair prejudice – Appeal dismissed.

New Zealand High Court

Judicial review, COVID-19 (Vaccinations Order)

Wright and ors v Minister for Covid-19 Response and anor [2023] NZHC 480 (10 March 2023) Van Bohemen J

Partly successful judicial review application – W and others caring for family members asked for declarations that decision to include Family Carers in COVID-19 (Vaccinations Order) 2021 invalid and that Vaccinations Order had not applied to Family Carers –

HC said Minister did not have necessary public health advice when including Family Carers in Vaccinations Order – Declaration Minister's decision made without regard to relevant considerations and invalid – HC declined declaration that Vaccinations Order had not applied to Family Carers – Would not be consistent with Vaccinations Order language or evidence of Minister's intentions – One declaration made.

Company liquidation, equitable lien

MaGinness and anor v Tiny Town Projects Ltd (in liquidation) [2023] NZHC 494 (14 March 2023) Venning J

Successful applications for equitable liens in company liquidation – Purchasers entitled to equitable lien over tiny homes to extent of moneys purchasers paid ascertainable and had been appropriated to purchasers’ individual contracts – Equitable liens took priority over secured interests as PPSA did not apply to equitable liens.

Sentencing, manslaughter, wounding with intent 

R v Te Heu Heu [2023] NZHC 506 (14 March 2023) Dunningham J

Sentencing – T g pleaded guilty to one charge of manslaughter and two charges of wounding with intent to cause grievous bodily harm  – Sentenced to five years six months imprisonment.

Sentencing, manslaughter, infant son, depression

R v Ngawhika [2023] NZHC 520 (15 March 2023) Jagose J

Sentencing – N guilty after jury trial of manslaughter of infant son – Suffered major depressive episode during offending, including transitory psychotic elements of hallucinations, delusional paranoia – Offending characterised as one-off – Otherwise provided safe and supportive home for children – Had overcome childhood economic deprivation, instability and parental neglect, including abuse by father who suffered psychoses of religious and self-aggrandising nature which were forced upon her –

Consistent with other cases where mental illness causative of infant manslaughter, three years six months' imprisonment starting point adopted – 30 per cent discount for overall mental illness, 10 per cent for dislocated and abusive personal history, and 5 per cent for good character and remorse – Considering time spent in pre-sentence detention and on EM bail at residential rehabilitation programme, HC imposed final sentence of 12 months' home detention.

Artificial intelligence, “Inventor”

Thaler v Commissioner of Patents [2023] NZHC 554 (17 March 2023)

Unsuccessful application for patent – T created and owned DABUS artificial intelligence that created new type of food container – T applied on DABUS behalf for it to be named as inventor – HC said nothing in Patents Act 2013 or legislative history indicated AI could be inventor – Application dismissed.

Judicial Committee of the Privy Council

Judicial review, “Closed Material Procedure”

Ramoon v Governor of the Cayman Islands and anor [2023] UKPC 9 (3 March 2023)

Partially successful appeal from Cayman Islands CA – Concerned lawfulness of R’s removal from Cayman Islands to serve prison sentence in England – Raised three issues: first, whether Cayman Islands Grand Court had implied statutory or inherent power to hold closed material procedure (CMP) when determining claims brought under Cayman Islands Bill of Rights; second, if no power to order CMP, approach Grand Court should  adopt; third, whether R’s rights sufficiently safeguarded to ensure compliance with Bill of Rights when challenged decision taken –

In May 2016 R and another convicted of murdering P – R sentenced to life imprisonment, with minimum 35-year term, and sent to Cayman Islands prison – Cayman authorities soon recorded "compelling" intelligence R had continued to orchestrate gang-related activities in prison, including conspiracy to murder, smuggling drugs, firearms, and hitmen into Cayman, threats to prison staff and assaults on other inmates – In June 2017, R transferred to high security prison in England, under powers in Colonial Prisoners Removal Act 1884 (1884 Act) –

R given neither notice nor opportunity to make representations until after transfer to English prison – R brought judicial review claim challenging transfer – Sought application of Cayman Bill of Rights to decisions under 1884 Act – Said decision-making process unfair and challenged 1884 Act framework, legality of 1884 Act framework – Also said removal decision took insufficient account of family rights – First instance judge dismissed judicial review application – R appealed to CA – CA said 1884 Act provisions accorded with law but had to be exercised compatibly with Bill of Rights – Only unsatisfactory possibilities if CMP unavailable, but R had express right to challenge decisions under 1884 Act – R appealed to PC –

PC said, among other things, not open to CA to invent CMP for Cayman under guise of developing common law – Considerably more than incremental development – Major change involving inroad into fundamental common law rights – Such step should be taken, if at all, by legislature which was better placed than judiciary to assess policy considerations – Appeal allowed on Ground 1.

United Kingdom Supreme Court

Ultra Vires, Secretary of State powers, national security

R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department [2023] UKSC 10 (8 March 2023)

Successful appeal from CA – Statutory construction issue – Arose over commercial multi-user GSM (Global Systems for Mobile Communications) gateway apparatus (COMUGs) – GSM gateways telecommunications equipment containing one or more SIM cards, as used in mobile phones – Enabled phone calls, text messages from landlines to be routed directly on to mobile networks, taking advantage of lower mobile call charges – When call routed through GSM gateway, only data transmitted over network was number and location of SIM card in GSM gateway – Did not transmit information such as calling party identity and (in mobile phone case) user's location, as would ordinarily be case without GSM gateway –

Under s 8(4) of Wireless Telegraphy Act 2006 (WTA 2006), Office of Communications (Ofcom) under duty to make regulations exempting installation and use of certain wireless telegraphy equipment from requirement for license under s 8(1) if satisfied conditions in s 8(5) met regarding equipment use – Section 5(2) Communications Act 2003 (CA 2003), places Ofcom under duty to carry out functions in accordance with directions given from Secretary of State on very limited grounds, which included national security and public safety interests –

Following public consultation, Ofcom published notice in July 2017 stating its intention to make regulations under s 8 WTA 2006 exempting COMUGs from s 8(1) licensing requirements – Secretary of State issued direction that COMUGs should not be exempted by Ofcom – Direction based on serious national security and public safety concerns –

High Court said Secretary of State had no power under s 5 to direct Ofcom not to comply with its duty under s 8(4) WTA 2006 to make regulations (exemption regulations) if Ofcom satisfied that conditions in s 8(5) were met – Direction therefore ultra vires (outside Secretary of State's power) – CA agreed, dismissing appeal – Secretary appealed to SC –

SC unanimously allowed appeal – Under legislation governing wireless telegraphy in force between 1904 and 2003, Government had sole responsibility – Most Government's functions and powers transferred to Ofcom in CA 2003 –

SC said obvious that using wireless telegraphy could give rise to national security concerns – National security, along with other matters listed in s 5(3) of CA 2003, core Government functions for which it is democratically accountable – Regulator, like Ofcom, in no sense equipped to have responsibility for such matters – Appeal allowed.

Lawyer Listing for Bots