New Zealand Law Society - Courts roundup 2 March - 8 March 2023
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Sixtus [2023] NZSC 1
Unsuccessful application for review of Deputy Registrar's decision – Self-represented S applied for leave to appeal from CA decision dismissing application to review Deputy Registrar’s decision declining fee waiver – Leave application also referred other decisions including HC decision striking out statement of claim as abuse of process – On 11 November 2022, SC Deputy Registrar declined applicant’s application for waiver of leave to appeal filing fee of $1,100 –
Application for review of SC Deputy Registrar’s decision canvassed range of matters to support proposition proposed appeal raised matters of genuine public interest – Consistent theme right to petition King under Bill of Rights 1688 (Imp) provided right to petition without being subjected to fees and costs when petitioning HC on questions of law – Application dismissed.
Wu v Stalix Property and anor [2023] NZSC 2 (16 February 2023)
Unsuccessful leave application – Self-represented W applied for leave to appeal CA judge’s decision regarding interlocutory matters – SC said leave criteria not met – Related to particular circumstances – Application dismissed.
Dunstan v Auckland High Court and ors [2023] NZSC 3 (17 February 2023
Unsuccessful leave application – Self-represented D applied for leave to appeal against CA decision – D arrested in 2019 for alleged breach of temporary protection order – Charge subsequently withdrawn and D filed DC proceeding alleging malicious prosecution in respect of her arrest – Unsuccessfully sought summary judgment and matter proceeded to full hearing – While DC proceedings ongoing, D filed mirror proceeding in HC, also seeking summary judgment, against New Zealand Police and Attorney-General – HC struck out mirror proceeding as abuse of process –
CA dismissed D’s appeal against strike out saying:
“… it is plainly an abuse of process for Ms Dunstan to seek to concurrently pursue malicious prosecution proceedings against the New Zealand Police and/or the Attorney-General, arising out of the same facts, in both the District Court and the High Court”.
SC said leave criteria not met – Application dismissed as abuse of process.
D (SC 115/2022) v JDN [2023] NZSC 4 (17 February 2023)
Unsuccessful leave application – Self-represented D sought leave to appeal CA decision – In September 2021, FC declined two applications for protection orders under Family Violence Act 2018 – When issues reached CA it said: “… [the Family Court’s] conclusion that children are safe not only accords with the views of other Judges in the Family Court, but also those of Oranga Tamariki, Police and counsel for the children”.
D had appealed to HC some four months out of time – Declining application, HC also commented on appeal merits, saying FC decision comprehensive – CA said no error in HC approach or reasoning –
SC said points D raised entirely factual – Leave criteria not met – Application dismissed.
D (SC 126/2022) v RMC and ors [2023] NZSC 6 (17 February 2023)
Unsuccessful leave application – Self-represented D sought leave to appeal against CA decision where CA declined application for extension of time to appeal against two HC judgments –
SC said proposed appeal related to D’s particular circumstances and had no wider general or public importance – Nor was there any risk of miscarriage of justice – Application dismissed.
Lambie Trustee Ltd v Addleman [2023] NZSC 7 (17 February 2023)
Successful costs application – In judgment delivered 1 June 2021, with one clarification, SC dismissed Lambie Trustee Ltd (LTL) appeal – Judgment addressed issues arising from A’s application for disclosure of trust documents – In particular, dealt with whether LTL could resist disclosure of legal advice as legal advice or through litigation privilege – SC reserved costs and sought submissions from parties if agreement could not be reached –
SC said L to receive out of Lambie Trust her actual costs of SC appeal plus usual disbursements – Second counsel allowed for A to provide schedule of costs incurred to LTL – Any issue as to reasonableness of costs sought to be determined by Registrar – LTL not entitled to any indemnity for costs and expenses in connection with appeal to SC including both its own legal fees and any solicitor-client costs and disbursements due to A – LTL to reimburse Lambie Trust (from funds not sourced from Trust) costs SC awarded on appeal – SC orders apply to costs award in CA.
Ahmed v R [2023] NZSC 8 (23 February 2023)
Unsuccessful leave application – A convicted, after jury trial, of sexual offending against pupil in school where he worked as caretaker – Sentenced to 11 years’ imprisonment with 50 per cent MPI – CA dismissed appeal against conviction, but MPI quashed – A sought leave to appeal to SC against conviction –
SC said proposed appeal related to particular circumstances and did not raise any questions of general or public importance – Nothing raised suggested CA analysis of consent directions given at trial may have been wrong – No risk of miscarriage of justice – Application dismissed.
Herlund v R [2023] NZSC 9 (28 February 2023)
Unsuccessful leave application – H convicted of (a) two charges (one representative) of performing indecent act on a young person; and (b) two charges (one representative) of sexual connection with a young person – Initially faced 11 charges, including sexual violation by rape, performing indecent act on a young person, sexual violation by unlawful sexual connection and supplying methamphetamine – Remaining charges withdrawn after he accepted sentence indication from Judge given on second day of trial –
When he appealed, CA, among other things, rejected submission that trial counsel pressured H into accepting sentence indication –
SC said H would essentially have Court reconsider arguments before CA – No point of general or public importance – All arguments related to particular circumstances here – Also nothing raised suggested CA analysis wrong – No risk of miscarriage of justice – Application dismissed.
Poihipi v R [2023] NZSC 10 (28 February 2023)
Unsuccessful leave application – P convicted in HC of murder of his girlfriend – P had some level of cognitive difficulty – Not been formally diagnosed but suspected he had foetal alcohol syndrome – Poor comprehension and struggled to read and write – At trial, common ground P assaulted girlfriend – Disputed issue whether he knew death likely – Appeal to CA based around trial counsel failing to prepare, investigate and advance key elements of defence case and had erred by advising P not to give evidence – CA rejected arguments – Also said nothing to indicate to trial counsel P unfit to plead or participate in trial –
SC said P applied on grounds that trial counsel failed to tailor his approach to accommodate vulnerable defendant and failed to provide adequate advice on giving or calling evidence – Said CA rightly recognised counsel had duty to tailor communications to account for any vulnerabilities of their client – Issues raised here related to applying requirement to particular circumstances of case therefore proposed appeal raised no matter of general or public importance – Also, nothing raised indicated CA wrong to say trial counsel appropriately adjusted approach to account for P’s impairment, that advice appropriate and P understood and accepted advice given – No risk of miscarriage of justice – Application dismissed.
T (SC 108/2021) v R [2023] NZSC 12 (1 March 2023)
Unsuccessful leave application – T sought leave to appeal against CA dismissing appeal against conviction for sexual offending against young relative – T initially convicted in 2016 but CA ordered retrial – Arman T’s counsel for appeal and he remained counsel for retrial, which took place in February 2018 –
T found guilty at retrial and sentenced to total of 16 years 10 months’ imprisonment with 50 per cent MPI – T appealed against conviction to CA – By this time, Arman had been struck off as barrister and solicitor and could no longer be located – CA ultimately found Arman’s input not necessary for appeal purposes and none of alleged counsel errors would have affected trial outcome and did not lead to miscarriage of justice –
SC said T's leave application essentially raised same grounds raised in CA – Related to circumstances of particular case – No matters of general or public importance – Nothing raised indicated CA analysis incorrect – No risk of a miscarriage of justice – Application dismissed.
O’Neill v Commissioner of Police and ors [2023] NZSC 13 (3 March 2023)
Unsuccessful leave application – Self-represented O’N sought leave to appeal against CA dismissing appeal against HC decision striking out judicial review proceeding he brought against Commissioner of Police, Judicial Conduct Commissioner, Chief High Court Judge, Director of Human Rights Proceedings and Attorney-General –
HC had said judicial review application could fairly be described as abusive; appeared to be no proper factual basis for claims and had not identified any decision to review – Judge said he was using Court’s procedures to abuse respondents –
SC said O’N wished to challenge all aspects of HC and CA decisions if leave granted – SC said leave criteria not met – Application dismissed.
O’Neill v New Zealand Law Society and ors [2023] NZSC 14 (3 March 2023)
Unsuccessful leave application – Self-represented O’N sought leave to appeal against CA decision dismissing appeal against HC decision to strike out HC proceeding against Law Society and others –
SC said no appearance of miscarriage here – No matter of public importance – Reason for strike-out depended entirely on unusual facts of case – CA directed Registrar to refer copy of judgment to Solicitor-General for consideration of such further steps as she might consider appropriate, having regard to s 166 of Senior Courts Act 2016 – SC directed direct its Registrar to do same – Application dismissed.
New World (New Zealand) Ltd v Wang [2013] NZCA 35
Unsuccessful appeal from High Court decision excluding property from a charging order and cancelling the registration of the order – Z was employed by New World and was subsequently discovered to have been stealing from it – Z had bought a property in Auckland in 2016 – Purchase price met by bank loan of $826,000 to Z, and $309,000 paid by W – 2017 a Deed of Declaration of Trust and Transfer of Property (the Deed) executed so Z held property on constructive trust for W – New World obtained judgment by default against Z for $329,675, obtained a charging order over the property, and sought an order that the property be sold – HELD: as per the Deed, W acquired Z’s entire beneficial interest upon payment of $70,000 – Arrangement not contingent on calling for the transfer of title – Z had no interest in any capital gain in the property – Appeal dismissed.
Kissling v R [2023] NZCA 37
Unsuccessful appeal against sentence of 4 years 11 months imprisonment – Grievous bodily harm (GBH) – Cumulative terms of 6 months imprisonment imposed on other charges – Second strike offence and K required to serve sentence without parole – Whether credit of up to 15 percent should have been given for K’s background circumstances – New written s27 Sentencing Act 2002 report and report of clinical psychologist evidence adduced on appeal – HELD: 6 year starting point adopted by sentencing Judge was generous – At least three R v Taueki aggravating factors present – Culpability fell in middle of second Taueki band – Judge similarly generous in declining to uplift for previous convictions – Sentence not manifestly excessive – Appeal dismissed.
Movement v Waka Kotahi and ors [2023] NZHC 342 (1 March 2023) Grice J
Unsuccessful judicial review application – HC said when preparing National Land Transport Programme 2021-2024 (NLTP), Waka Kotahi NZ Transport Agency did not fail to ensure NLTP contributed to purpose of Land Transport Management Act 2003 (LTMA) or give effect to Government Policy Statement on land transport 2021-2024 (GPS) including by failure to quantify greenhouse gas emission baseline and predicted impact of programme – Waka Kotahi not required to undertake quantitative assessment of emissions, relied on expert advice and overall qualitative assessment met relevant LTMA and GPS requirements, including climate change strategic priority, which did not take primacy over other requirements – Applications failed.
Doney and ors v Adlam [2023] NZHC 363 (1 March 2023) Harvey J
Successful application for substitution of judgment creditor and leave to issue enforcement proceedings – Savage Papakāinga Land Trust trustees applied against A – $10 million judgment sealed against A – Leave required as new trustees appointed – Trustees sale order regarding A's two residential properties – A opposed enforcement saying injustice and delay and claims enforcement contrary to tikanga –
HC granted substitution: no opposition and consistent with Māori Land Court's decision on appoint replacement trustees – Application for leave to issue enforcement proceedings granted – Enforcement delay not unreasonable nor fault of one party – Trust position 'consistently expressed in correspondence” to A – One trustee's personal opinion that would not like to see A homeless not sufficient for estoppel –
Tikanga considered: Tikanga applied to ownership and whakapapa; management of whenua; and dispute resolution – Traditional concepts including hara, muru, utu as relevant as whakapapa, whanaungatanga, tino rangatiratanga and manaakitanga here – Given extent of A's improper benefit from trust breach, recompense to trust required to restore state of ea (balance) – Tikanga principles when correctly applied supported granting trustees' applications – Insufficient evidence to establish tikanga argument that enforcement would sever A's mana whenua and turangawaewae – Applications granted.
R v Metzger [2023] SCC 5 (3 March 2023)
Successful appeal from Alberta CA – M convicted of offences arising from home invasion robbery 2017 – Neither victim clearly saw perpetrators – Prosecution relied on two pieces of evidence to identify M – First, M’s DNA was on cigarette butt found in stolen truck – Second, victim testified that he may have heard someone say “Metzger” during robbery – M did not testify at trial –
Trial judge concluded M participated in robbery – Alberta CA dismissed M’s appeal – Said trial judge correct – One judge disagreed – M able to appeal his case to SC as of right –
SC majority allowed appeal, set aside convictions and substituted acquittals – Said M’s guilty verdicts were unreasonable based on evidence totality – First, DNA evidence on its own insufficient to establish guilt beyond reasonable doubt – Only established M’s presence in stolen truck at some point, rather than participation in actual robbery – Second, victim’s testimony about name “Metzger” fraught with frailties – Had been struck on head at beginning and was fading in and out of consciousness throughout – During testimony questioned own recollection of what he heard –
SC said M’s decision not to testify at trial could not be raised against him – Evidence here not such that “cried out for an explanation that only [his] testimony could provide” – “No trier of fact, acting judicially, could reasonably be satisfied that accused’s guilt was only reasonable conclusion available” – Appeal allowed.
Attorney General v Jamaican Bar Association [2023] UKPC 6 (9 February 2023)
Successful appeal from Jamaica CA – Appeal related to whether Jamaica’s anti-money laundering legislation, as it applies to lawyers (also known as attorneys), compatible with Jamaican Constitution – In 2013 Jamaica extended anti-money laundering regime to include attorneys carrying out certain activities, such as purchasing and selling businesses or real estate or creating companies or trusts – Aim to address national security concerns and comply with international standards in respect of prevention of money laundering and terrorist financing –
Extended regime gave General Legal Council, Jamaican legal profession regulator, powers to monitor attorney compliance with anti-money laundering regime – Included inspections, examining and copying documents, and potentially sharing information with other authorities – Also extended, to attorneys, requirement to disclose suspicious transactions to Ministry of Finance and Planning Financial Investigations Division –
Jamaican Bar Association represented attorneys – Brought challenge to extended regime as unconstitutional on several grounds – Attorney General Legal Council resisted challenge –
Jamaican SC said relevant legislation lawful and dismissed challenge – CA declared certain aspects invalid as they contravened constitutional rights to privacy, liberty and freedom from search of property without demonstrable justification –
Attorney General and General Legal Council appealed to PC – PC said regime did not contravene constitutional rights – Appeal allowed.