New Zealand Law Society - Courts roundup 17 August - 23 August 2023

Courts roundup 17 August - 23 August 2023

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

High court sign with beehive reflection 2

New Zealand Supreme Court

Self-represented litigant, no evidential basis

Toubat v Toubat [2023] NZSC 106 (15 August 2023)

Unsuccessful leave application – Self-represented T applied to to bring civil appeal to SC on 18 July 2023 – Under heading on application form “What are the specific grounds of your proposed appeal?”, answer given, “Truth, Evidence” – Part which asked for reasons why leave should be given crossed out – Under heading “What judgment do you seek from the Supreme Court?”, form said, “[j]ustice by returning land title to me as it was prior to signing contract that did not meet its terms & conditions” –

Application related to CA decision striking out appeal against HC strikeout – SC said nothing before Court providing basis for leave grant – SC in similar position to both HC and CA – Insufficient information and no evidential basis on which could entertain claim T seemed to wish to bring – SC recommended T sought legal advice and act on that advice – Application dismissed.

Direct appeal

The Canyon Vineyard v Central Otago District Council and anor [2023] NZSC 108 (17 August 2023)

Unsuccessful leave application – Bendigo Station Ltd (Bendigo) owned large Central Otago farm – Sought resource consent to subdivide area of land – The Canyon Vineyard Ltd (Canyon) owned land west of Bendigo’s land where operated, among other things, vineyard, restaurant and function centre – Opposed Bendigo’s application –

Council consented to creation of 12 lots, with consents for residential building platforms on eight of them – Canyon appealed against that decision to Environment Court – Court upheld Council’s decision but for slightly amended proposal – HC dismissed Canyon’s appeal – CA declined Canyon’s leave application – Canyon sought leave to appeal directly to SC –

SC said Canyon clearly failed test in s 75 Senior Courts Act – No exceptional circumstances justifying leave application, particularly in light of full and detailed CA leave judgment – Also out of time –Application dismissed.

New Zealand Court of Appeal

Propensity evidence, severance, interests of justice - Login Required

[D] v R [2023] NZCA 337

Immigration Act, evidence, disclosure - Login Required

[D] v R [2023] NZCA 371

Leave to appeal, protected person status

BE (Nigeria) v Refugee and Protection Officer [2023] NZCA 372

Successful application for leave to appeal to the High Court (HC) – BE, a Nigerian national and New Zealand resident, was served with a deportation liability notice following convictions arising from involvement in a substantial methamphetamine importation – Claims for refugee or protected person status rejected by Refugee and Protection Office, and appeal dismissed by Immigration and Protection Tribunal – BE sought leave to appeal on question of law – At issue was whether it was of general importance, and whether it ought to be submitted to the HC – HELD: Correct approach to the risk assessment, and in particular whether a two-stage or a single-stage inquiry was appropriate, was a question of law of general importance – Appropriate it be considered by the HC as not clear the Tribunal’s approach was consistent with Karanakaran v Secretary of State for the Home Department – change in wording by Tribunal reinforced need for clarity from the Court, and proposed evidence might provide a context for assessing the question of law – Application for leave to appeal granted on question: Did the Tribunal err in its approach to risk assessment, and, as a result, did it improperly exclude material information from consideration.

Admissibility of evidence, hearsay statements, video evidence - Login Required

[H] v R [2023] NZCA 373

Professional misconduct, registration cancelled

Subramani v A Professional Conduct Committee of the Dental Council [2023] NZCA 375

Unsuccessful appeal against refusal to grant interim stay of order cancelling Dr S’s registration as a dentist pending appeal against order for cancellation and fine – Appeal due to be heard early September 2023 – Health Practitioners Disciplinary Tribunal view was that Dr S had been operating at the level of a junior dental student – Whether stay appropriate – HELD: Refusal of stay would not render the appeal nugatory – Bona fides of applicant not in dispute – Protection of the health and safety of the public by ensuring health practitioners were competent and fit to practise sat at the heart of any determination – Change to principles in Yan v Mainzeal Property and Construction Ltd (in rec, in liq) not justified – Impacts of cancellation on Dr S, his practice and his family would be significant, but Judge did not err in balancing impact against risk to public and assessing factor as neutral – Ongoing supervision of Dr S’s practice not a novel factor marking this case apart from others – Appeal dismissed.

New Zealand High Court

Judicial review, Bill of Rights, Corrections

Wallace and ors v Chief Executive Department of Corrections [2023] NZHC 2248 (18 August 2023) Cooke J

Successful judicial review application – W applied for judicial review of Department of Corrections (Corrections) decision to transfer prisoners from Arohata Prison in Wellington to Christchurch Women's Prison and Auckland Region Women's Corrections Facility –

Serious Corrections staff shortages meant some prisoners' minimum entitlements under s 69 Corrections Act 2004, based on United Nations Standard Minimum Rules for the Treatment of Prisoners, were not being provided, with safety concerns for staff and prisoners –

HC said Corrections failed to take into account personal circumstances of prisoners when deciding to transfer them as required –

Effect of decision to effectively close Arohata to sentenced women also disadvantaged women prisoners on basis of sex/gender, ground of discrimination prohibited under s 19 New Zealand Bill of Rights Act 1990 for three reasons: significantly reduced ability to sentence women closer to their whanau and communities; closed only residential drug treatment programme available to women in New Zealand; transfers made irrespective of personal circumstances for female prisoners but taken into account for male prisoners – Discrimination caused disadvantage and not demonstrably justified given Crown not established staffing crisis beyond ability to earlier control (s 5 New Zealand Bill of Rights Act) – Corrections further failed to take into account discriminatory effect of transfer decisions –

Application upheld – No further relief until parties discussed position given logistical and resource management issues likely to arise from relief – Application upheld.