New Zealand Law Society - Courts roundup 23 November - 29 November 2023

Courts roundup 23 November - 29 November 2023

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

Porirua District Court panorama

New Zealand Supreme Court

Resource management, water consent

Cloud Ocean Water Ltd v Aotearoa Water Action Inc and ors [2023] NZSC 153 (20 November 2023)

Unsuccessful appeal from CA – Involved issues arising when resource consent to take and use groundwater transferred to new owner who wishes to use allocated water for different purpose from use permitted under consent –

COW acquired resource consents from other businesses to take and use water – Applied to Canterbury Regional Council (Council) to obtain new “use” consents for commercial water bottling – Council granted use-only consents relying on rule 5.6 Regional Plan, which treated all activities not otherwise classified in Plan as discretionary –

Aotearoa Water Action Inc (AWA) unsuccessfully challenged rule 5.6 application in HC – CA appealed reversed HC decision and set Council’s decision aside – COW appealed to SC –

SC unanimously agreed with CA – Appeal dismissed.

Total allowable catch

Seafood New Zealand Ltd v Royal Forest & Bird Protection Society of New Zealand Inc and ors [2023] NZSC 154 (24 November 2023)

Successful leave application – Related to Total Allowable Catch in inshore fishery – Approved question is whether CA correct to dismiss appeal – Application allowed.

New Zealand Court of Appeal

Set aside of application, Personal mitigating circumstances

McLean v R [2023] NZCA 578

Successful application to set aside notice of abandonment of applicant's appeal against sentence – Applicant sentenced to 11 years imprisonment on convictions for indecent assault (x2), indecent assault on a young person under 16 (x2), and unlawful sexual connection (x2) – No information provided on any personal mitigating factors that might have been relied on to challenge the sentence – Applicant wished to raise personal mitigating factors for consideration on sentencing as background under s27 Sentencing Act 2002 – Late appreciation of factors by applicant - HELD: Application granted - Appeal reinstated for the purpose of taking into account submissions and evidence concerning personal mitigating circumstances.

Sale and purchase agreement, Contract interpretation, Summary judgment

Civic Lane Ltd v Dibble [2023] NZCA 582

Unsuccessful appeal against decision interpreting an agreement for sale and purchase of a new apartment to be constructed within an existing building – Apartments for sale off the plans in central Auckland – Respondent wanted a larger apartment with a bespoke layout - Agreement for sale and purchase was for an apartment comprising the space originally intended for two standard apartments with a layout conforming to “a plan to be provided & agreed with purchaser” - Purchase price was $2,995,000 - Dispute arose on settlement as to whether respondent was liable to meet various costs of approx $155,000 associated with the construction of the redesigned apartment in accordance with his requests – HC found that respondent was not liable to pay extra for the modifications and granted summary judgment on his claim for specific performance of the agreement in accordance with the settlement notice he served – Whether the Judge correct to grant summary judgment - HELD: Respondent did not agree to buy an apartment with the standard layout for two apartments, nor was he buying an empty shell - Standard layout was replaced by an agreed layout which the vendor warranted it would work with respondent to design - Agreement was reached on the design of the final layout without any price adjustment being sought or agreed – Appellant was obliged to construct the apartment conforming to that layout and cannot unilaterally impose a price increase for doing so – Appeal dismissed.

Assault with intent to commit sexual violation, Verdict unreasonable

Dibben v R [2023] NZCA 583

Unsuccessful appeal against conviction for assault with intent to commit sexual violation – Sentenced to 2 years 8 months imprisonment – Whether the jury’s verdict was unreasonable – Sufficient evidence for jury to infer intent – Importance of not drawing adverse inference regarding appellant's GPS monitoring – HELD: Jury did not rush to judgment – Considered the evidence – Appeal against conviction dismissed.

Murder, Minimum period of imprisonment

Phillips v R [2023] NZCA 588

Unsuccessful appeal against part of sentence for murder – Sentenced to life imprisonment with a minimum period (MPI) of 14 years – Whether the Judge erred in concluding s104(1)(g) Sentencing Act 2002 was engaged because the victim was ‘particularly vulnerable’ when killed – Whether 14 years MPI manifestly excessive – HELD: Threshold of vulnerability engaged – 17 year MPI starting point – Personal circumstances discounts taken into account – Sentence not manifestly excessive – Appeal dismissed.

Drug charges, EM bail - Login Required

[F] v R [2023] NZCA 592

Appeal against conviction, Evidence, Counsel error

Mitchell v R [2023] NZCA 593

Unsuccessful appeal against conviction for charges of making an objectionable publication (x5), distributing an objectionable publication (x2), burglary (x2), committing an indecent act on a child under the age of 12 years (x5), and a representative charge of possession of an objectionable publication – Sentenced to 9 years imprisonment with minimum period of imprisonment (MPI) of 6 years – Initially appealed against conviction and sentence – Whether decision of the Court was against the weight of the evidence and a miscarriage of justice had occurred – Whether evidence was inadmissible because a number of factors made the search warrant invalid – Whether trial counsel made a number of errors – HELD: Appellant abandoned first ground of appeal – Validity of search warrant and whether a second was required was addressed at trial – Second ground of appeal dismissed - None of the complaints raised, either separately or taken together, identified any counsel error or irregularity and there had been no miscarriage of justice – Third ground of appeal dismissed – Appeal dismissed.

Judicial review, Preventive detention, Variation

Attorney-General v Grinder [2023] NZCA 596

Successful appeal against HC decision granting application for judicial review – Respondent subject to a sentence of preventive detention and on release on parole was subject to special conditions – Parole Board declined respondent’s application to vary the conditions – Respondent granted application for judicial review in the HC, holding that the wrong test had been applied and the decision should be reconsidered – Whether the HC applied the wrong test and decision should be set aside – Under the Parole Act 2002 special conditions can be imposed or maintained even if they are not necessary for the purpose of taking a parolee down from an undue risk to something less than that for five reasons only - As the HC found that a special condition can only be maintained if, without that condition, the person will be an undue risk, and that the purpose of special conditions was to take an offender from undue risk to something less than that, the decision was in error - HELD: Appeal allowed – HC decision set aside.

New Zealand High Court

Sentencing, manslaughter

R v Hart [2023] NZHC 3364 (24 November 2023) Venning J

Sentencing – Manslaughter (11 years, 4 months’ imprisonment) and attempting to pervert course of justice (5 ½ years), concurrent.

United Kingdom Supreme Court

Collective bargaining rights, Deliveroo riders, ECHR

Independent Workers Union of Great Britain v Central Arbitration Committee and anor [2023] UKSC 43 (21 November 2023)

Unsuccessful appeal from CA – Appeal concerned collective bargaining rights of Deliveroo riders working in London – Deliveroo riders became members of Independent Workers Union of Great Britain (IWGB) – In November 2016, IWGB formally requested Deliveroo to recognise union for collective bargaining on behalf of riders –

Deliveroo rejected request – IWGB applied to Central Arbitration Committee (CAC) under Schedule A1 Trade Union and Labour Relations (Consolidation) Act 1992 (1992 Act) – Schedule set out procedure followed when employer did not agree to recognise and bargain with union –

Having analysed nature of relationship between riders and Deliveroo, CAC accepted Deliveroo’s argument that riders in question not workers within definition in s 292, 1992 Act – Rejected additional IWOB argument that refusing to recognise Union would breach riders’ rights under article 11 of European Convention on Human Rights (ECHR), which protected freedom of peaceful assembly and association –

HC rejected argument CAC decision breached riders’ human rights under ECHR and dismissed IWGB’s claim – IWGB appealed to CA who upheld HC – IWGB appealed again to SC –

SC unanimously dismissed IWGB’s appeal – Said riders not in employment relationship for article 11 purposes and provisions protecting trade union activity do not apply to them – Appeal dismissed.