New Zealand Law Society - Courts roundup 2 July - 8 July 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Dotcom v Minister of Justice [2026] NZCA 284 (1 July 2026)
Unsuccessful appeal by D against Commissioner of Police’s decision not to charge D in NZ – Scope of review for prosecutorial discretion limited, but rational and proper basis existed regardless – Dotcom's position differed from co-defendants who pleaded guilty and offered assistance – Trial not feasible given volume of evidence located in US – US unwilling to withdraw extradition request – Unilateral domestic prosecution inconsistent with Treaty and Extradition Act, undermining comity – Prosecution Guidelines not engaged given extant extradition proceeding – HC held right not to be subject to disproportionately severe treatment or punishment under s9 NZBORA not engaged, any US punishment too remote from Commissioner's decision –
Minister's surrender decision not unreasonable and did not breach right under s9 NZBORA concerning disproportionately severe treatment or punishment – No error in Minister's assessment of likely 30-year US sentence as effective life sentence – Shocked conscience test correctly applied – Comparison between likely sentence in requesting country and likely sentence in requested country, not actual co-defendant sentences – Approach consistent with Canadian, UK and European authorities – Irreducible life sentence pathway available in law but not established on facts – Reducibility depends on existence of genuine review mechanism at sentencing, not likelihood of individual benefit – Appeal dismissed.
Director-General of Health v New Health New Zealand Inc [2026] NZCA 279 (29 June 2026)
Successful appeal by D-G against ruling that water fluoridation directions unlawful – D-G directed 14 local authorities to fluoridate water supplies under pt 5A Health Act – Mandatory statutory criteria addressed but no express reference to NZBORA, despite directions engaging s11 right to refuse medical treatment – HC held actionable process obligation existed requiring public decision-makers to turn their mind to NZBORA whenever a protected right engaged, breach of which rendered decision unlawful independently of substantive rights consistency – D-G ordered to reconsider; on reconsideration found fluoridation substantively justified limit on s11 right – Whether actionable procedural obligation to consider NZBORA when making decisions –
HC erred – Actionable process obligation not part of current NZ law – Absent express statutory requirement, NZBORA not generally a mandatory relevant consideration – Substantive compliance with NZBORA, not process by which decision reached, touchstone of illegality – Any benefits of recognising stand-alone procedural duty outweighed by concerns of practicality, undue formalism, doctrinal confusion and uncertainty – D-G did not act unlawfully by failing to expressly undertake NZBORA assessment before issuing directions – Appeal allowed – Ruling Director - General's decision unlawful set aside.
R v Templeton [2026] NZHC 1870 (29 June 2026)
Sentencing – T pleaded guilty to manslaughter and driving with excess blood alcohol causing injury after crashing vehicle while driving home from tavern with two friends – T's blood alcohol estimated at 189mcg per 100ml at time of crash – Speed of 113-127km/hr on bend with 75km/hr advised speed – Vehicle rolled, ejecting T and front passenger – Front passenger died at scene, rear passenger seriously injured –
HC adopted starting point of 5 years 9 months' imprisonment – Aggravating factors: consumption of alcohol; driving in breach of restricted licence conditions (zero-alcohol limit); deliberate decision to drive despite alternative transport options; excessive speed; driving while distracted, including bravado and "showing off"; injury to second victim –
Starting point 5 years 9 months' imprisonment – 20 per cent deduction for guilty plea – 15 per cent deduction for youth and no prior driving convictions – 20 per cent deduction for rehabilitative steps and remorse – No discrete deduction for good character due to overlap with youth and rehabilitation – Imprisonment not disproportionately severe – Net deduction of 55 per cent – End sentence 2 years 7 months' imprisonment on manslaughter charge, concurrent 1 year imprisonment on driving with excess blood alcohol causing injury charge – Disqualified from driving for 2 years 6 months – Ordered to pay $233.29 costs of blood analysis.
Skatteforvaltningen (The Danish Customs and Tax Administration) (Appellant) v MCML Ltd (previously known as ED&F Man Capital Markets Ltd) (Respondent) [2026] UKSC 19 (1 July 2026)
Whether issue determined in earlier proceedings extended to materially different factual and legal allegations – Supreme Court unanimously allowed the appeal –
Doctrine of issue estoppel was confined to issues which were necessary and fundamental to the earlier judgment and constituted its immediate foundation – It did not extend by inference, deduction, or broad formulation to matters not pleaded or determined in the prior proceedings – 2018 claim against MCML Ltd concerned alleged negligent misrepresentations in tax vouchers and whether such a claim was inadmissible under the Revenue Rule – 2022 claim alleged fraudulent misrepresentations and raised different factual and legal issues which had not been decided in the earlier proceedings –
No issue estoppel arose to bar the 2022 claim, and the Court of Appeal’s strike-out order was set aside.
Commissioners for His Majesty's Revenue and Customs v BlueCrest Capital Management (UK) LLP [2026] UKSC 18 (1 July 2026)
Unsuccessful appeal from CA – Appeal arose from application of salaried members rules under Income Tax (Trading and Other Income) Act 2005 – Rules introduced to prevent individuals who were effectively employees obtaining tax advantages by becoming members of limited liability partnerships (LLPs) – Member treated as employee for income tax purposes if statutory Conditions A, B and C satisfied – Appeal concerned Conditions A and B –
Condition A required member's remuneration to be wholly or substantially fixed, or otherwise not to vary by reference to LLP's overall profits or losses ("disguised salary") – Condition B required member to have significant influence over affairs of LLP – Purpose of provisions to distinguish genuine partners from employees –
BlueCrest LLP carried on the business of providing investment management services – Members managed substantial investment portfolios and received discretionary profit allocations largely determined by individual and team performance – HMRC determined certain members satisfied the statutory conditions and should be taxed as employees –
FTT held remuneration amounted to disguised salary but found certain senior investment managers exercised significant influence over LLP's affairs – UT upheld decision – CA allowed HMRC's appeal on Condition B, holding tribunal had wrongly relied on members' commercial importance and operational responsibilities rather than influence over the LLP's affairs derived from its constitutional and management structure – BlueCrest appealed –
SC unanimously dismissed appeal – Held remuneration remained disguised salary because it was principally determined by individual performance – Existence of overall profit cap did not mean remuneration varied by reference to LLP's overall profits or losses for purposes of Condition A – Court further held significant influence under Condition B meant influence over the affairs of the LLP itself, particularly its strategic or high-level management, rather than that arising from members’ commercial importance or operational responsibilities – Appeal dismissed.
Ubeda and Others v Italy (application no. 9993/24) European Court of Human Rights, 2 July 2026
European Court of Human Rights (ECHR) ordered the Italian state to pay compensation of €60,000 (£51,000) to a woman and her two children who had suffered domestic violence from her partner, who was the children’s father – Court unanimously held the state had failed in its positive obligations by violating Art 3 (prohibition of inhuman and degrading treatment) and Art 8 (right to respect for private and family life) of Convention for the Protection of Human Rights and Fundamental Freedoms –
Proceedings against the alleged perpetrator had not met the requirements of a prompt, thorough and effective investigation as required under the Convention and were aggravated by sexist and stereotypical remarks by the prosecutor which included allegations that repeated rape by her partner be dismissed as “normal” for men who struggle to overcome resistance from “tired” women, leaving the applicant feeling re-victimized – Inaction by the Juvenile Court meant the applicants had to live in a shelter for over three years resulting in the finding that authorities had breached their obligation to adopt proportionate measures and to carry out, on an ongoing basis, an assessment of the adequacy and proportionality of that measure –
ECHR recognised the prolonged stay in the shelter impacted the children’s psychological and physical well-being and had subjected them to a serious restriction of their fundamental rights and freedoms.