New Zealand Law Society - Courts roundup 20 July - 26 July 2023

Courts roundup 20 July - 26 July 2023

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

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New Zealand Supreme Court

Self-represented litigant, judicial review, leapfrog appeal

S (SC 24/2023) v Attorney-General and anor [2023] NZSC 86 (18 July 2023)

Unsuccessful leave application – Self-represented S convicted in 2010 on seven charges of serious sexual offending – Sentenced to 16 years’ imprisonment with 10 years MPI – Brought series of appeals and habeas corpus applications as either direct or collateral attacks on convictions –

Judicial review proceeding subject of this application commenced in HC in May 2022, with S challenging DC (pre-Criminal Procedure Act 2011) decision to commit S for trial – On Attorney-General’s application HC struck out S’s proceedings as abuse of process – HC dismissed S’s parallel application for interim orders asking for (effectively) bail pending determination of judicial review proceeding –

S applied directly to SC for leave to appeal against HC decisions – SC said applicant for leave to appeal directly to SC had to satisfy Court not only necessary in interests of justice Court to hear and determine appeal, but circumstances of case are so exceptional as to warrant bringing direct appeal –

SC said no exceptional circumstances identified here – Nor, given SC twice considered and rejected core complaint, had S established necessary in interests of justice to hear and determine proposed appeal – Application dismissed.

Costs

Zhong Xing v Jicai Li and Fang Yu and ors [2023] NZSC 87 (19 July 2023)

Costs award – Costs order following self-represented ZX’s unsuccessful leave application.

Judicial review, strikeout

O’Neill v Judicial Conduct Commissioner [2023] NZSC 88 (21 July 2023)

Unsuccessful leave application – Self-represented O applied for HC judicial review of Commissioner decisions – HC registrar referred proceeding Judge under r 5.35A High Court Rules 2016 to consider under r 5.35B – Rule 5.35B empowered judge to strike out or make other directions relating to proceeding if satisfied proceeding plainly abuse of Court’s process – Judge issued judgment striking out O’s proceeding as abuse of Court’s process –

O appealed to CA – Appeal set down – After O did not appear, set down again two days later – O again did not appear – CA dealt with appeal on papers, dismissed appeal, giving reasons month or so later – CA upheld HC strikeout –

O applied for leave to appeal to SC – O said process CA adopted flawed, rather than decision being wrong – Said notified CA could not attend on day of first scheduled hearing because of ill health – CA adjourned hearing but required O to appear two days later and also required him to supply medical certificate – O did neither –

SC said requiring medical certificate might be matter of public or general importance, but other matters O proposed to raise related to particular facts of case – Not appropriate to consider medical certificate point – No risk of miscarriage of justice – Application declined.

New Zealand Court of Appeal

Contract, Unit Titles

Body Corporate 406198 v Property Opportunities Limited

Partially successful appeal concerning the validity of a management agreement - Unit title development in central Auckland known as “Bianco Off Queen” - Some units were used as residential apartments, while others were used as part of a hotel/short-term accommodation business - The Body Corporate (BC) issued proceedings challenging the validity of a management agreement entered into when the developer of the project had sole control of both contracting parties - The  BC claimed that the effect of the agreement was to improperly require unit owners to cross subsidise the running of a hotel and short-term accommodation business on the site, in breach of the Unit Titles Act 1972 – The HC found the agreement was valid, specific provisions were found to be ultra vires, but severable - The BC appealed the finding that the agreement was valid, and also challenged the Judge’s finding that a clause which required BC to pay a contribution to a unit used as the hotel reception was not ultra vires – HELD: The contribution clause was ultra vires – The clear purpose of the clause was to compensate the Manager for rental costs associated with the ultra vires exclusive letting services - A clause requiring the BC to pay for an ultra vires purpose must also be ultra vires and void ab initio - The Management Agreement was not ultra vires as whole – All of the ultra vires provisions of the Agreement could be removed without consequence for the balance of the BC scheme. This part of the appeal was dismissed – The matter of unjust enrichment was referred back to the High Court for reconsideration. 

Law Practitioners

Zhong v Li [2023] NZCA 300

Unsuccessful application to remove counsel and solicitors for the first to nineteenth respondents – HELD: The Court has jurisdiction to disqualify counsel at the instance of an opposing party where their very involvement risks injustice or brings the Court’s processes into disrepute, but it was very sparingly exercised  – The appellant presented unsupported allegations of conflict of interest, breach of professional standards, dishonesty, and vexatiousness.

Criminal Procedure, Name Suppression 

Lee v R [2023] NZCA 305

Unsuccessful appeal against refusal to grant interim name suppression – Lee faced charges of murdering her two children by giving them an overdose of her prescription medicine - Whether the publication of Lee’s name in relation to the proceedings was likely to increase her risk of self-harm or suicide, to be likely to cause extreme hardship to her - Weight accorded to the expert psychiatric opinion - Whether the Judge erred in finding that the publication of  Lee’s name did not demonstrate a real and appreciable risk of her self-harm or suicide, such that continued name suppression was justifiable – Consideration of threshold test - HELD: There was no evidence before the Court that Corrections’ protective measures were inadequate - Any deterioration in her mental state would be attended to by the prison health service - The presumption of open justice underlies the fact of the existence of a threshold requirement in s200 Criminal Procedure Act 2011 – The Judge was not to be taken as saying that step one involved a counterbalancing of the presumption - The threshold required to establish that publication would cause Lee extreme hardship or otherwise endanger her safety was not met on the evidence.

Extended Supervision Order – “pattern” – Login Required

Chakwizira v The Chief Executive of Corrections [2023] NZCA 307 

Criminal Sentence – serious drug offending 

Bird v R [2023] NZCA 308

Unsuccessful appeal by Bird against a sentence of 5 years and 3 months imprisonment for serious drug dealing offences – History of abuse - A discount of 10 percent was given for addiction and the possibility that Bird had a difficult childhood which lessened his overall culpability - Whether the discounts he received for deprivation and addiction were insufficient and he was wrongly denied a discount for time spent on electronically monitored bail – HELD: The end sentence was not manifestly excessive - Any additional allowance appropriate for deprivation and addiction was offset by the generous allowance made for  the guilty pleas – The Judge was not wrong to decline credit for time spent on electronically monitored bail as there was reason to doubt that Bird complied with bail conditions when he returned home, the onus was on him to satisfy the court that he had done so - He had not discharged that onus.

New Zealand High Court

Sentencing, murder

R v Tinei [2023] NZHC 1869 (19 July 2023) Downs J

Sentencing – T murdered W – Poured petrol on victim and set her alight – History of family violence against same victim – Murder committed on bail and while T subject to protection order – Guilty plea only mitigating factor – MPI 19.5 years adopted – Eighteen-month deduction for guilty plea – Sentence: life imprisonment with MPI 18 years.

Veterans’ entitlements

General Manager, Veterans’ Affairs New Zealand v Estate of Lieutenant Colonel Tā Harawira Gardiner KNZM [2023] NZHC 1897 (20 July 2023) McQueen J

Appeal on question of law under s 239 of Veterans’ Support Act 2014 (Act), against Veterans’ Entitlements Appeal Board (Board) decision – Board said Lieutenant Colonel Tā Harawira Gardiner’s claim for glioblastoma to be treated as service-related condition under Act – Appeal unopposed – HC said would not be benevolent in light of s 10(b) to conclude that where not assisted by Statement of Principles, veteran not entitled to benefit from s 15 – Instead, claimant should be treated as if no applicable SOP, and s 15 process should apply – Appeal Board majority did not err to adopt broad approach – Appeal allowed and remitted to Appeal Board for reconsideration.

United Kingdom Supreme Court

Gang-related violence, injunctions against, poof standard, ECHR

Jones (Appellant) v Birmingham City Council and anor [2023] UKSC 27 (19 July 2023)

Unsuccessful appeal from CA – Council applied to County Court for injunctions to prevent J and 17 others from engaging in gang-related violence and drug-dealing – Injunctions requested under s 34 Policing and Crime Act 2009 (2009 Act), alternatively under Part 1 Anti-social Behaviour, Crime and Policing Act 2014 (2014 Act) – Interim injunctions granted in February 2016 – J applied for injunction claim against him to be transferred to HC where he applied for declaration that was incompatible with article 6 European Convention on Human Rights (ECHR) –

HC said proceedings here not related to criminal charge and did not require criminal standard of proof – Injunction trial held in County Court in 2017 – Judge Wall applied civil proof standard (balance of probabilities) to whether J had been involved in gang-related drug-dealing activity and therefore satisfied first condition in section 34(2) of 2009 Act – Concluded condition satisfied and granted injunction against J under ss 34-36 2009 Act, as amended by Crime and Security Act 2010 and 2015 Act – Injunction included provisions preventing J from entering large area in central Birmingham, associating with or contacting ten people named in injunction, and participating in music videos containing material which might relate to gangs operating in Birmingham –

J appealed order of Burton J to CA – CA said proceedings under s 34 2009 Act did not involve criminal charge within article 6(1) ECHR; and standard of proof for proving threshold conditions in s 34 2009 Act injunction applications relating to gang-related drug-dealing and under s 1(2) 2014 Act for injunction applications relating to anti-social behaviour, being balance of probabilities, was compatible with article 6 ECHR –

J appealed to SC – SC unanimously dismissed appeal – Said Article 6(1) ECHR, as given effect by HRA 1998, did not require criminal standard of proof to be satisfied in respect of (a) proof person engaged in or encouraged or assisted gang-related violence or gang-related drug dealing within s 34(2) 2009 Act or (b) proof that person has engaged or threatened to engage in anti-social behaviour within section 1(1) 2014 Act; and under Part 4 2009 Act and Part 1 2014 Act Parliament devised statutory schemes which conformed with fair hearing requirements under article 6 ECHR – Appeal dismissed.

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