New Zealand Law Society - Courts roundup 19 June - 25 June 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
BW (SC 22/2025) v Commonwealth of Australia [2025] NZSC 66 (16 June 2025)
Successful leave application – Approved question whether CA correct to allow appeal and rule HC erred in law when concluded would be oppressive to extradite BW to Australia.
Siemer v Attorney-General [2025] NZSC 65 (17 June 2025)
Unsuccessful review application – Self-represented S applied for review of Deputy Registrar’s decision declining to waive filing fee – Review decided under s160 Senior Courts Act 2016 –
S disputed asking for review – SC Judge said was review, if S wished to pursue would have to pay filing fee.
Mills v Dalzell [2025] NZSC 67 (17 June 2025)
Unsuccessful leave application – Self-represented M and P applied for leave to appeal CA striking one appeal (served out of time) out for want of jurisdiction and declining extension of time for second appeal (filed out of time) –
SC said both appeals attempts to continue proceeding HC struck out in 2022 – Appeal to CA struck out for failure to pay security for costs in 2023 and leave to appeal to SC refused in 2024 – Applications dismissed.
[M] v R [2025] NZCA 247
[N] v R [2025] NZCA 250
[T] v R [2025] NZCA 251
[S] v R [2025] NZCA 254
[T] v R [2025] NZCA 256
[D] v R [2025] NZCA 257
Turkington v R [2025] NZCA 252
Unsuccessful appeal against DC decision declining to award JTL and T costs under the Costs in Criminal Cases Act 1957, and awarding S $15,000 – Appellants charged under the Resource Management Act 1993 (RMA) of various offences related to commercial forestry harvesting operations in three forests - All relevant charges dismissed or resulted in acquittals -
DC had not erred in finding there was no evidential foundation for the charges - Council should have called evidence from a forestry harvesting expert to say how the trees should have been harvested in a way that minimised the impact on the stream - Questions involved matters of fact and degree, and in the absence of some basis upon which the jury could make the required assessment, the charges could not be established beyond reasonable doubt – DC had not erred in his costs decisions - In relation to T’s company, discharge applications largely unsuccessful, supporting view there was proper basis to bring prosecutions - There were reasonable concerns arising from adverse environmental effects caused by forestry harvesting activities - Open to DC to conclude prosecution not commenced or continued in bad faith or unreasonably - In relation to T, no material inconsistency in the grant of an s147 Criminal Procedure Act 2011 discharge application and conclusion there was sufficient evidence to support the conviction at the commencement of the proceeding - In relation to S, partial award appropriate - Proper evidential basis to conclude S personally involved with allegedly contravening activities – Appeal dismissed.
Trustees of the Samoan Independent Seventh Day Adventist Property Trust v Toailoa [2025] NZCA 261
Unsuccessful appeal by Trustees against Beddoe decision except that the prospective costs order is amended to provide for counsel’s certification and an Associate Judge’s approval of costs incurred - Successful appeal against decision appointing manager of Trusts allowed - Appeal against continuation of preservation order dismissed except that terms adjusted to reflect appeal against the appointment of a manager being allowed - Samoan Independent Seventh Day Adventist Church (SISDAC) a charitable trust, closely related to the Samoan Independent Seventh Day Adventist Property Trust (SISDA Property Trust) - Cogent evidence presented in an interlocutory context to suggest management structure of Trusts operated without proper regard to legal principles underpinning charitable trusts, had limited commercial competence and, at least indirectly, continued to be influenced by a pastor whose inappropriate conduct had led to his disqualification from being an officer of the entities -
Intended proceeding was reasonable and appropriate step for the applicants to take, and one which was in the best interests of the Trusts – There were issues in respect of the proper trust deed of the SISDA Property Trust, the transfer of SISDAC properties to a company, and the governance and administration of the Trusts - Appropriate for the applicants to invoke the High Court’s supervisory responsibilities - Prospective costs orders did not include sufficient costs-fixing mechanism having regard to the quantum of costs involved - Steps ordered had not included requirement for certification as to the reasonableness of the quantum of costs, nor scrutiny by a judicial officer experienced in assessing such reasonableness - Costs order amended to provide for counsel’s certification and an Associate Judge’s approval - Judge erred in finding appointment of an interim manager (under s60(1)(d) Charitable Trusts Act 1957) was reasonably necessary or just and equitable - Issues identified by Judge did not require response by way of interim management - Actions of those trustees responsible for governance and management of Trusts would be under the continuing scrutiny of the Court, and any failures to strictly comply with the rules of Trust would be identified - Combination of preservation orders and Pastor fulfilling his confined role should address most interim issues - Preservation order to remain in place due to risk of dissipation.
MDP v R [2025] HCA 24 (18 June 2025)
Successful appeal from Queensland CA – After jury trial MDP convicted of sexual offences against stepdaughter – At trial, Crown adduced evidence from complainant's sister MDP smacked complainant "on the bum" when "[w]e weren't doing anything wrong" (smacking evidence) – MDP's trial counsel did not object admission of smacking evidence – Summing up, trial judge directed jury they could only use smacking evidence if "satisfied beyond reasonable doubt [MDP] did act as evidence suggested, and conduct demonstrated he had sexual interest in complainant and was willing to pursue it", and that "[i]f you do not accept this other evidence proves to your satisfaction [MDP] had sexual interest in the complainant, then you must not use the evidence in some other way" – MDP's trial counsel did not oppose direction or seek redirection –
CA dismissed MDP's appeal against convictions – MDP appealed to HC, saying admitting smacking evidence and trial judge's direction about smacking evidence gave rise to miscarriage of justice constituting wrong decision on question of law –
HC unanimously said wrong decision on question of law involved trial judge’s wrong determination or response to question of law having legal effect in trial – Wrong decision on question of law, other than "fundamental" one, could not result in appeal being allowed unless appellant established wrong decision could realistically have affected jury’s reasoning to guilty verdict – HC unanimously ruled no decision on question of law occurred when smacking evidence admitted without objection – HC unanimously ruled trial judge made wrong decision on question of law in directing open to jury to treat smacking evidence as propensity evidence of MDP’s sexual interest in complainant, notwithstanding MDP’s counsel’s failure to oppose direction – HC majority ruled trial judge's direction could realistically have affected jury’s reasoning, not demonstrated that no substantial miscarriage of justice occurred – MDP's convictions set aside and new trial ordered.
Dunmore v Mehralian [2025] SCC 20 (20 June 2025)
Unsuccessful appeal from Ontario CA – Appeal about determining if Ontario courts had jurisdiction (authority) to hear custody application under Ontario’s Children Law Reform Act (CLRA) – Under CLRA, Ontario courts could make custody order if child habitually resided in Ontario at time of application –
Mother (Iranian citizen and Canadian permanent resident) and father (Canadian citizen originally from Ontario) married in Japan in 2015 – Lived in various countries together, generally moving for reasons related to father’s employment – Lived together in Oman from April 2018 until March 2020, then travelled to Ontario – Although originally planned to return to Oman in April 2020, remained in Ontario longer because of COVID-19 pandemic – Child born in Ontario in December 2020 – In January 2021, mother, father and child returned to Oman, but returned to Ontario in April 2021 – In May 2021, mother and father separated – Father returned to Oman, mother and child remained in Ontario –
Father began proceeding in Oman in June 2021, seeking divorce and custody of child – Following day, mother commenced family law proceedings in Ontario Superior Court – Father brought motion challenging jurisdiction of Ontario courts to determine parenting issues and seeking child’s return to Oman – Motion judge dismissed father’s motion, concluding Ontario courts had jurisdiction because child habitually resided in Ontario for CLRA purposes – CA agreed and dismissed father’s appeal – Father appealed to SC –
SC majority dismissed appeal – Said for purpose of determining if Ontario courts had jurisdiction to hear proceeding brought under CLRA, definition of “habitually resident” in s22(2) required court to look to where child was residing at prescribed time – Guiding principle to determine where child residing whether child at home there, not whether parents had settled intention to reside in place – Here, Ontario courts properly took jurisdiction – Motion judge considered all relevant circumstances and concluded family residing in Ontario when child last lived with both parents – Appeal dismissed.
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