New Zealand Law Society - Courts roundup 18 April - 24 April 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
H (SC 1/2024) v R [2024] NZSC 31 (15 April 2024)
Successful leave application – Approved question whether CA correct to dismiss appeals in both CA169/2023 and CA170/2023 – Interim order continuing suppression of applicant’s name, address, occupation and identifying particulars pending further SC order – Application allowed.
Slavich v Wellington District Court and anor [2024] NZSC 30 (16 April 2024)
Unsuccessful leave application – Self-represented S’s appeal struck out in CA on 14 February 2024 – First, under r 37(1) of Court of Appeal (Civil) Rules 2005 for non-payment of security for costs – Secondly, under r 44A for failure to prosecute appeal with due diligence, by failing to pay filing fee for appeal – Did not seek leave to appeal against decision – Sought leave to appeal Judge’s direction after appeal struck out, to take no action on collateral contempt complaint against Crown counsel in appeal –
SC said no longer live proceeding below, nor is there application for leave to appeal calculated to reinstate former proceeding – Combined events effectively leaves Court without jurisdiction to act in terms of s 68 of Senior Courts Act 2016 – Application declined.
Whakatōhea Kotahitanga Waka (Edwards) and ors v Te Kāhui Takutai Moana O Ngā Whānau Me Ngā Hapū O Te Whakatōhea and ors [2024] NZSC 33 (17 April 2024)
Successful leave application – Leave granted on question of correctness of CA judgment – Leave granted in general terms – Following judgment release, consultation with parties with view to refining issues on which Court is particularly interested – Some leave terms might be amended after consultation – Application allowed.
Sixtus v Ardern and ors [2024] NZSC 32 (18 April 2024)
Unsuccessful leave application – Self-represented S applied for leave to appeal CA decision refusing time extension to file case on appeal and set appeal down for hearing – Appeal related to HC decision striking out application for judicial review as unintelligible and outside jurisdiction – SC said proposed appeal futile – Leave declined.
J, Compulsory Care Recipient, by Welfare Guardian, T v Attorney-General and ors [2024] NZSC 34 (18 April 2024)
Successful leave application – Leave granted in general terms, but counsel’s argument would need to address correctness of the approach adopted in the case RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2012] 1 NZLR 641 and whether there had been breaches of J’s rights under ss 9, 19, 22 and 25(a) of New Zealand Bill of Rights Act 1990 and the consequences of any breaches if found – Application allowed.
Christian v Bain [2024] NZSC 35 (18 April 2024)
Unsuccessful leave application – Arose in context of C’s defamation claim against B – C unsuccessful HC and on appeal to CA – HC said while publications contained defamatory imputations against C, and B responsible as joint tortfeasor, B successfully made out defence of responsible communication on matter of public interest – finding upheld in the CA - SC said proposed appeal would reprise arguments raised in CA – Nothing C raised called CA assessment into question – Leave criteria not met – Application dismissed.
Bradley v R [2024] NZCA 115
B found guilty of representative charges of rape (x5) against two girls aged between five and nine years old and sentenced to 15 years imprisonment – CA dismissed appeal against conviction and sentence – SC declined leave to appeal conviction to SC but expressed view that if B wanted to pursue appeal on basis of impaired communication skills (raised for the first time) would need to seek recall of CA judgment – Two expert reports regarding B’s communication skills – Whether grounds for recall made out – Test in Jolley v R – HELD: Not reasonably arguable that any communication difficulties could have materially influenced the CA’s credibility assessment – From review of notes of evidence at trial, B presented as an articulate and intelligent witness – Degree of impairment in verbal communication abilities not uncommon in criminal trials – Not reasonably arguable any impairment was of sufficient degree of severity to impact fairness of B’s trial or appeal – Application for recall declined.
[A] v R [2024] NZCA 116
Wiremu v R [2024] NZCA 120
Appeal against conviction and sentence – W pleaded guilty to charges of assault on a child (x8) and sentenced to six months supervision – W contracted to a primary school to teach Mau Rākau, a martial art based on use of traditional Māori weapons – During a teaching session, W hit eight children, mostly on the chest and legs, with a piece of wood similar to a broom handle – Whether grounds for appeals made out – HELD: W pleaded guilty with the benefit of legal advice, and despite being given opportunity to make an application to vacate those pleas, did not do so – No miscarriage of justice occurred – Offending was moderately serious and sentence a lenient one – Appeals dismissed.
Moses v R [2024] NZCA 121
Appeal against sentences of five years two months imprisonment (C), and five years imprisonment (M and T) – Appellants convicted of being a party to intentional damage to property knowing that danger to life was likely to result (x3), and participating in an organised criminal group – Members and associates of the Killer Beez gang, including appellants, carried out a concerted plan to take retaliatory action against the Tribesmen gang, shooting from their vehicles at certain houses – Whether starting points comparable with sentences imposed on other offenders who had taken part in the plan but pleaded guilty and been sentenced earlier by different judges HELD: No error in any of the sentences – Starting points were consistent with the case law and comparable to those imposed on co-offenders – Any differences between co-offenders could be justified and did not warrant any reduction – Discounts for mitigating factors were orthodox and in some aspects arguably generous – Appeals dismissed.
Saw and ors v Minister for Immigration and anor [2024] NZHC 834 (17 April 2024) Palmer J
Unsuccessful application for judicial review and interim orders – S and other refugees from Myanmar applied for judicial review of what they understood to be government immigration decision, or imminent decision, to grant visa(s) to Myanmar junta representative(s) to enter New Zealand to attend intergovernmental meeting – Said unlawful, failed to consider relevant considerations and unreasonable – Also applied for interim orders that “any decision [by the respondents] to grant a visa or entry permission to any representative of the Myanmar Government shall not be given effect until this proceeding is determined” –
HC said necessarily unaware of legal basis on which diplomatic agent to enter New Zealand and understandably amended their application for judicial review in light of evidence – Application for interim orders effectively asked Court to prevent someone, who Crown said accredited diplomat, from entering New Zealand when no legal problem with accreditation – Overall justice lay compellingly against granting interim orders sought – Application declined.
Secretary of State for Business and Trade v Mercer [2024] UKSC 12 (17 April 2024)
Successful appeal from CA – M employed as support worker in care sector by Alternative Futures Group Ltd (AFG) – As workplace representative of UNISON union, she was involved in planning and took part in lawful strike action – AFG subsequently suspended her – While suspended, M received normal pay but unable to earn pay for overtime she would otherwise have worked –
M claimed against AFG under s 146 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) that she suffered detrimental treatment for sole or main purpose of preventing or deterring her from taking part in independent trade union activities "at an appropriate time” or penalising her for having done so –
Parties agreed that Employment Tribunal determined preliminary issue whether, in light of articles 10 and 11 European Convention on Human Rights (Convention), s 146 TULRCA protected workers from detriment short of dismissal for participation in lawful industrial action as independent trade union member – Employment Tribunal said did not – Employment Appeal Tribunal allowed M’s appeal and said could be interpreted as doing so – CA allowed appeal from intervener, Secretary of State for Business and Trade, saying s 146 could not be interpreted compatibly with article 10 Convention but refused to make declaration of incompatibility – M appealed to SC –
SC unanimously allowed appeal to extent made declaration s 146 TULRCA incompatible with article 11 ECHR – Said employees dismissed for taking part in lawful strike action had some statutory remedies for unfair dismissal – However, no express statutory (or other) protection in domestic law against action employer took short of dismissal for participation in lawful strike action – Appeal allowed.