New Zealand Law Society - Courts roundup 18 May - 24 May 2023

Courts roundup 18 May - 24 May 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

Rates, targeted commercial rate

Auckland Council v C P Group Ltd and ors [2023] NZSC 53 (12 May 2023)

Successful appeal from CA - Auckland Council decided to impose targeted rate in 2017/2018 and 2018/2019 rating years on commercial accommodation providers to help fund expenditure on visitor attraction and major events by Auckland Tourism, Events and Economic Development (ATEED), a council-controlled organisation – CP group and others were all subject the rate - Sought judicial review of decision – Said Council’s decision did not comply with s 101(3)(a)(ii) Local Government Act 2002 which broadly states in determining funding sources local authority had to consider regarding each activity funded “the distribution of benefits between the community as a whole, any identifiable part of the community, and individuals” – Also said decision to impose targeted rate unreasonable –

HC dismissed claim – Said decision not unreasonable and met statutory requirements – CA reversed HC decision saying Council had not adequately considered the distribution of benefits in s 101(3)(a)(ii) –

SC unanimously allowed appeal, setting aside CA decision and reinstating HC decision – SC said Council had complied with s 101(3)(a)(ii) - Accommodation providers’ ability to pass though targeted rate cost by increasing prices for guests relevant in considering s 101(3)(a)(ii) here – Said analysis under s 101(3)(a)(ii) did not require close correlation between the activity and the benefits received by proposed target of the rate –

Given SC reasoning on compliance with s 101(3)(a)(ii), followed that decision not unreasonable - Council did not err in its approach - Rational connection between the rate and the benefits from ATEED’s activities – Appeal allowed.

Self-represented litigant, appropriate forum

B (SC 26/2023) v C (SC 26/2023) [2023] NZSC 52 (15 May 2023)

Unsuccessful leave application – Self-represented B and his then wife, A, filed proceedings in HC against C, alleging she had defrauded them of approximately $500,000 - After lengthy procedural history, HC said New Zealand not appropriate forum for determining claims, PR China more appropriate forum - CA dismissed B’s appeal - 

SC said no proposed appeal ground met leave criteria – Application dismissed.

Self-represented litigant, strike out

MC (SC 17/2023) v Family Court at Manukau and anor [2023] NZSC 54 (15 May 2023)

Unsuccessful leave application – Self-represented MC dissatisfied with FC judgment placing children in Oranga Tamariki | Ministry for Children (OT) care – Appealed unsuccessfully to HC - Did not seek leave for further appeal - Commenced HC judicial review proceedings but these were struck out -

More than a year after appeal and judicial review proceedings dismissed, she commenced HC proceedings claiming in tort against FC and OT – HC said proceeding abuse of process and struck out – MC filed a notice of appeal to CA – After she failed to pay required security for costs, appeal deemed to be abandoned –

She applies to SC for leave to appeal directly against HC judgment – Leave criteria not met – Application dismissed.

Methamphetamine dealing, sentence parity

Taui v R [2023] NZSC 56 (16 May 2023)

Unsuccessful time extension application – T dealt methamphetamine purchasing 1.524 kilograms from co-defendant, wholesaler who had obtained the product from Auckland – HC said T played “significant” role in operation, albeit displaying some features of person in “leading” role – T’s sentence appeal to CA focused on parity with co-offenders, but failed –

Co-offender’s sentence reduced following appeal to SC – T said time extension for leave to appeal should be granted because had not perceived or understood that parity had arguable merit as appeal ground prior to expiry of time to appeal – Application dismissed.

SC said where leave application filed out of time, applicant had to provide adequate explanation for delay and compelling reasons for extending time – Had to show, in all the circumstances, interests of justice favoured granting leave – Leave criteria not made out here – Application dismissed.

Self-represented litigant, multiple proceedings

DFT v Auckland High Court and ors [2023] NZSC 57 (17 May 2023)

Unsuccessful leave application – Self-represented D unsuccessful in custody dispute in Family Court - Deeply unhappy with outcome, commenced multiple collateral proceedings against, among others, former partner, court-appointed lawyer for children, various government agencies, and New Zealand Law Society (NZLS) regarding how it handled complaint against lawyer for children –

Following various HC proceedings, two of which were struck out and ruled abuse of process – D made four appeals to CA – CA dealt with them on one decision –

D sought leave to appeal aspects of CA decision – SC said no leave criterion met - D’s procedural complaints are particular to case circumstances and did not involve matters of general or public importance - Nor was there any appearance of miscarriage of justice – Application dismissed.

Self-represented litigant, appeal from DC decision

Dunstan v New Zealand Police [2023] NZSC 58 (17 May 2023) 

Unsuccessful leave application – Self-represented D applied for leave to appeal to SC against DC decision dismissing claim against police for malicious prosecution – SC had no jurisdiction – Application dismissed.

Time extension, MPI

Thompson v R [2023] NZSC 59 (17 May 2023)

Unsuccessful time extension application – T pleaded guilty to representative charge of supplying 4.2 kilograms methamphetamine and one charge of possessing 2.6 kilograms methamphetamine for supply - Sentenced in DC to 13 years’ imprisonment, with MPI six years six months - T appealed unsuccessfully to CA against MPI being imposed – Sought time extension to appeal CA decision –

SC said proposed appeal would ultimately turn on assessing facts - No questions of general or public importance - Reflected particular facts - No appearance of a miscarriage of justice in CA approach – Application dismissed.

Self-represented litigant, murder

Locke v R [2023] NZSC 60 (18 May 2023)

Unsuccessful leave application – L’s neighbour, C, objected to the volume at which L playing music - This eventually resulted in C turning off the power supply more than once to L’s property - L, autistic and had mental health issues, went to C’s property and stabbed him three times at his front door - C died – L admitted stabbing C but denied murderous intent – Jury convicted him of murder - Sentenced to life imprisonment with ten-year MPI –

L appealed to CA, where represented himself – Applied himself for leave to appeal to SC – SC said leave criteria not met – L sought to substantially re-argue facts – No apparent miscarriage of justice – Application dismissed.

New Zealand Court of Appeal

Property law, restrictive covenants

Hürlimann v Lilley [2023] NZCA 173

Unsuccessful appeal against refusal to remove covenants – L’s decided to subdivide their rural property and H entered into an agreement to buy one of those blocks – L’s registered restrictive covenants against title to land shortly before H acquired it – Covenants imposed significant restrictions on any building that might be erected on that land – Whether HC erred in refusing to exercise its power under s317 Property Law Act 2007 to remove the covenants – Synlait Milk Ltd v New Zealand Industrial Park Ltd leading authority – HELD: determinative factor was fact H consented to the registration of the covenants with full knowledge of their nature and effect, and received competent legal advice throughout – Judge correct to conclude it would not be just and equitable to make an order extinguishing the covenants – Appeal dismissed.

Company law, share valuation

Smalley v Williamson [2023] NZCA 174

Unsuccessful appeal against order for summary judgment requiring S to specifically perform his obligation to transfer shares in two companies at the amounts fixed in an Ernst & Young (EY) valuation report – S held 30 percent of the shares in two related companies – Triggering event in 2018 required S to sell his shares to the continuing shareholders – Parties unable to agree a price for the share transfers which led to agreed terms of reference for EY report – Whether S had a reasonably arguable defence to summary judgment application on the basis that EY breached its mandate in a number of ways – HELD: issue of whether EY conducted its valuation in accordance with its mandate was not a matter for expert evidence, was a matter of contractual interpretation for the Court – Any errors in EY’s analysis did not amount to a breach of the mandate – Appeal dismissed.

Sentence appeal, manslaughter

French v R [2023] NZCA 176

Successful appeal against sentence of 3 years imprisonment – Manslaughter charge laid following a successful appeal by F from his conviction for murdering the deceased LS, a patched member of the King Cobras gang – F one of three defendants at trial and was convicted as a party to a murder committed by co-defendant C, but errors in summing up meant real risk outcome of trial affected  and F’s conviction appeal allowed and retrial ordered – F pleaded guilty to manslaughter charge, and a number of other charges – Overall sentence imposed 10 years 2 months imprisonment – no grounds for granting recall application (Uhrle v R) – HELD: sentence for manslaughter not excessive prior to adjustment for totality – Extent of uplift for previous firearms offending, and point at which sentencing Judge adjusted sentence for totality meant it was appropriate to make some further adjustment to manslaughter sentence in the interests of ensuring the overall sentence not excessive – Further discount of 6 months appropriate – Appeal allowed – Manslaughter sentence reduced to a cumulative term of 2 years 6 months.

Māori Land Court, jurisdiction

Tāmati Kruger on behalf of Tūhoe Te Uru Taumatua Trust v Paki Nikora on behalf of Te Kaunihera Kaumātua o Tūhoe [2023] NZCA 179

Discretionary trust for the benefit of present and future Tūhoe iwi members and post-settlement governance entity established by Ngāi Tūhoe to receive redress from the Crown for breaches of Te Tiriti o Waitangi/The Treaty of Waitangi – Sole issue whether the Māori Land Court had jurisdiction to hear claims in relation to the administration of the Trust – Turned on whether the Trust was a “trust constituted in respect of any General land owned by Māori” for the purposes of s236 Te Ture Whenua Māori Act 1993 (Māori Land Act 1993) – HELD: at the time the Trust was established, it was contemplated that it would acquire land as a result of a Treaty settlement, but was established for very broad purposes – The Trust was not established to hold one or more identified parcels of land – Relevant lands were not held on the same trusts, and did not form part of the assets of the Trust – Appeal allowed – Māori Land Court orders set aside.

Conviction appeal, murder

Kaitai v R [2023] NZCA 184

Unsuccessful appeal against conviction – Murder – Argued that at trial, Judge’s summing up lacked neutrality, failed to properly put the whole defence case and left the jury with the impression K bore the onus of proof – Whether miscarriage of justice established – HELD: when the summing up was read a whole and in particular alongside the question trail, the defence was fairly presented – Jury properly directed on issue of causation – Not accepted causation direction unbalanced – Judge fairly identified what evidence would be relevant to inquiry of K’s actual knowledge and intentions – Not persuaded Judge’s comments were improper or created risk of a miscarriage of justice – Appeal dismissed.

High Court of Australia

Judicial bias, reasonable apprehension of bias

QVFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and anor [2023] HCA 15 (17 May 2023)

Successful appeal from Full Court FCA - Issue before HC whether judge sitting as part of Full Court constituted to hear migration appeal should have recused himself from hearing appeal for reasonable apprehension of bias said to arise from the judge's appearance as senior Crown counsel in former capacity as the Commonwealth Director of Public Prosecutions, in opposition to QVFM’s appeal against his conviction for drug importation offence that resulted in cancellation of his visa (conviction appeal) –

On morning of hearing migration appeal before judge's associate informed parties' legal representatives by email of judge's involvement in conviction appeal - At hearing commencement QVFM’s counsel made oral application for judge to recuse himself - Following short adjournment, challenged judge delivered reasons for declining to recuse himself and hearing proceeded - Judge recapitulated reasons in written reasons for judgment - Other Full Court members did not address recusal application either during hearing or in  separate joint reasons for judgment –

HC majority, said judge should have recused himself from migration appeal – Said judge's appearance as counsel against QVFM in conviction appeal gave rise to reasonable apprehension on the part of a fair-minded lay observer that judge might not bring impartial mind to adjudicating issues in migration appeal - Reasonableness of apprehension was reinforced by causal connection between conviction and visa cancellation decision, legality of visa non-revocation cancellation being in issue before Full Court – Result was Full Court as constituted had no jurisdiction to hear and determine QVFM’s appeal – Appeal allowed.

Criminal responsibility, over ten but under 14

BDO v R [2023] HCA 16 (17 May 2023)

Partly successful appeal from Queensland CA - appeal concerned BDO’s criminal responsibility for acts which took place when over ten but under 14 years of age, and whether what required by s 29(2) of the Criminal Code (Qld) (Code) to rebut the presumption of incapacity can be equated with common law requirement - At common law presumption could be rebutted by evidence that child "knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence" - Code said presumption could be rebutted by evidence of child's "capacity to know that [they] ought not to do the act or make the omission” –

BDO charged with 15 counts of rape and one count of indecent treatment of child under 16 - After jury trial in Queensland DC, convicted of 11 counts of rape - Trial judge directed jury in s 29 terms - Explained that child who over ten but not yet 14 years of age could be criminally responsible, but only if prosecution proved, at the time of doing the act, child had capacity to know they ought not to do the act - What was in question was BDO’s capacity as distinct from actual knowledge –

CA dismissed appeal – Said sufficient direction that it was for jury to decide, in relation to each count, whether BDO was 14 years of age when act in question occurred and, if not, if had capacity to know that ought not do act - Said open to jury, on evidence before it, to conclude beyond reasonable doubt that each time BDO did act the subject of count for which was convicted, BDO knew act  wrong according to ordinary principles of reasonable people –

HC allowed the appeal on five counts. For each of those set aside CA decision and entered judgment and acquittal – HC said trial judge and CA did not err in approach regarding s 29 knowledge requirements – Said insufficient evidence to rebut presumption of incapacity beyond reasonable doubt regarding those counts, and even if such evidence could be adduced, retrial not appropriate as prosecution should not be given an opportunity to supplement case – Appeal partly allowed.

Supreme Court of Canada

Family law, property agreement without legal advice

Anderson v Anderson [2023] SCC 13 (12 May 2023)

Successful appeal from Saskatchewan CA – A and A married in Saskatchewan for three years and separated in 2015 - Ms A prepared an agreement that said each would keep their own property and give up rights to other’s property except for family home and household goods, owned jointly - Both parties signed agreement before two friends who acted as witnesses - Neither party benefited from independent legal advice before signing agreement - Ms A filed for divorce - Mr. A countered to ask court to divide family property, arguing agreement signed without legal advice and under duress –

Like other provincial family property laws, Saskatchewan Family Property Act (FPA) provided family property distributed equally unless spouses agreed otherwise through interspousal or other domestic contract - Interspousal contracts presumed binding if met certain requirements under FPA, such as a formal party acknowledgement that understood nature and effect of agreement in presence of different lawyers – FPA said court might still consider domestic contracts that did not meet formalities and be given “whatever weight it considers reasonable” - Since no lawyers involved in As’ agreement, did not qualify as interspousal contract –

Trial judge said agreement not binding, partly because As had not received legal advice before signing domestic contract - Consequently did not give it any weight when crafting property division order - Divided couple’s assets equally and ordered wife to pay husband difference of around $90,000 - Ms. A took the case to Saskatchewan CA - CA set aside trial judge’s order - Relying on earlier SC judgment which created framework to consider spousal support agreements under federal Divorce Act, CA said couple’s original agreement binding and should have been considered in dividing the family property - Ordered Mr. A to pay Ms. A around $5,000, using trial judge’s property valuation at date closest to agreement. Mr. A appealed to SC –

SC unanimously allowed appeal – Said agreement short, uncomplicated and reflected parties’ intention to effect clean break from partnership - Moreover, Mr. A could not point to any prejudice resulting from lack of independent legal advice - Disagreed with CA reliance on previous SC case but arrived at same conclusion trial judge should have given agreement serious consideration –

SC said courts should generally encourage and support domestic contracts, within legal bounds, absent compelling reason to discount them - Deference to such agreements flowed from recognition that self-sufficiency, autonomy and finality were important objectives in  family law context - Moreover, “courts must review domestic contracts with particular sensitivity to the vulnerabilities that can arise in the family law context, without presuming that spouses lack the agency to contract simply because the agreement was negotiated in an emotionally stressful context” –

Court allowed appeal, set aside CA decision and enforced agreement - Divided family home and household goods equally as of trial date, ordering Ms. A to pay Mr. A approximately $43,000 – Appeal allowed.

United Kingdom Supreme Court

Nuisance, liability, limitatation

Jalla and anor v Shell International Trading and Shipping Co Ltd and anor [2023] UKSC 16 (10 May 2023)

Unsuccessful appeal from CA - Appeal concerned tort of private nuisance in context of major oil spill - Question at issue whether there is continuing private nuisance and hence continuing cause of action - Important question because affected when limitation period for the bringing claims (in English law for torts normally six years) started to run -
J and C (claimants) two Nigerian citizens - Defendants and respondents both companies within the Shell group of companies (Shell) –
Bonga oil field approximately 120km off Nigerian coast - On 20 December 2011, at 3:00am oil leak lasting about six hours occurred during cargo operation - Leak was caused by rupture in flowline when crude oil being transferred to waiting oil tanker (Bonga Spill) - Estimated that equivalent of at least 40,000 barrels of crude oil leaked into the ocean - Shell alleged to be liable for operation behind Bonga Spill -
Claimants alleged oil migrated from offshore Bonga oil field to reach Nigerian Atlantic shoreline where said claim had a devastating impact and not been removed or cleaned up - Although Shell disputes claims, maintaining spill successfully contained and dispersed offshore and that did not impact the shoreline, assumed for appeal purposes some oil reached Nigerian Atlantic shoreline within weeks of 20 December 2011 –
Limitation issue arose when the claimants sought to make certain amendments to claim form and particulars of claim over six years after Bonga Spill - Claimants said so long as undue interference with land continuing, because oil on land not removed or cleaned up, there was continuing cause of action for private nuisance accruing afresh from day to day -
Claimants appealed to SC – SC said to accept claimants' submission would undermine the law on limitation of actions, based on important policies principally to protect defendants but also in state and claimant interests, because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up -
SC said not surprising claimants could cite no case directly supporting position advocated - While there might be no authority that directly contradicted position, contrary to principle and would have unfortunate policy consequence of undermining law of limitation – Appeal dismissed.

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