New Zealand Law Society - Courts roundup 24 August - 30 August 2023

Courts roundup 24 August - 30 August 2023

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

High Court Coat of Arms

New Zealand Supreme Court

Proposed regional ports policy, NZ Coastal Policy statement

Port of Otago Ltd v Environmental Defence Society Inc [2023] NZSC 112

Successful appeal from finding that there was no conflict between the New Zealand Coastal Policy Statement (NZCPS) ports policy and the avoidance policy – Issues concerning the relationship between the policies in the NZCPS and how such policies should be reflected in lower-order planning documents – Validity of proposed regional ports policy contained in a proposed Otago Regional Policy Statement – Regional policy statements had to give effect to any national policy statements – HELD: CA erred in finding that the NZCPS ports policy was subordinate to the avoidance policies – The avoidance policies and the ports policies were all directive – Reconciliation of any potential conflict between the NZCPS avoidance policies and ports policy should be addressed at the regional policy statement and plan level as far as possible – Where potential conflict between the policies with regard to a particular project, decision-maker had to be satisfied work required for safety and efficiency reasons, all options evaluated, and any breach only to extent required to provide for safe and efficient operation of the ports – Appeal allowed – Council directed to consult with appropriate parties on a redrafted policy.

Company law, directors’ duties

Yan v Mainzeal Property and Construction Ltd (in liq) [2023] NZSC 113

Unsuccessful appeal against findings of liability under s135 and s136 Companies Act 1993 – MPCL was a major NZ construction company placed in receivership and liquidation in 2013 – Shortfall owed to unsecured creditors was approximately $10M – Whether the directors had breached s135 and s136 – Quantification of loss and compensation orders – HELD: Directors had breached their duties under both s135 and s136 from the dates and in the manner determined by the CA – Order directors to contribute $39.8M to the assets of MPCL (with interest) – Liabilities of S, T and G each limited to $6.6M (and interest) – Y liable for the entire amount – Directors to pay costs to the liquidators of $65,000.

New Zealand Court of Appeal

Severance, historic sexual offending, propensity evidence - Login Required

R v [S] [2023] NZCA 376

Conviction and sentence appeal

N (CA 28-2023) v R [2023] NZCA 378

Unsuccessful appeal against conviction on charges of sexual violation by unlawful sexual connection (x3), sexual conduct with a young person (x2), and common assault – Unsuccessful appeal against sentence of 6.5 years imprisonment – N (aged 24 years) and victim (aged 13 years) became involved through sport – Massages initially designed to assist with a calf injury became sexual – Whether trial Judge erred in jury directions/instructions, or prosecutor misused counter-intuitive evidence – Whether starting point of 7 years imprisonment too high – HELD: No risk to outcome of trial or miscarriage of justice due to opinion evidence direction, use made of counter-intuitive evidence, way in which “no reason to lie” issue was dealt with, or reasonable belief in consent direction – Starting point was well within available range once determined N’s offending fell within the mid-range of band two of R v AM – Appeals dismissed.

Securities Act, Fair Trading Act, Companies Act

Banks v Farmer [2023] NZCA 383

Unsuccessful appeal from High Court decision dismissing B’s causes of action being breaches of s37 Securities Act 1978 (SA), s9 Fair Trading Act 1986 (FTA), and directors’ duties under the Companies Act 1993 (CA) – B had made various unsecured advances to MNL, a company that developed and patented an innovative network security management system – MNL was placed in receivership and liquidation owing creditors more than $30M, and B lost all the money he had invested – Whether HC erred in its decision – HELD: MNL did not engage in misleading or deceptive conduct in breach of the FTA – Directors did not breach s135 or s136 CA – Directors did not breach the SA – Award of indemnity costs was appropriate – Appeal dismissed.

Contract law, authority

Kingsbeer Transport Ltd v Martin-Brower New Zealand [2023] NZCA 385

Successful appeal from failed breach of contract and repudiation of contract claims – Appellant company (KTL) was a small trucking company and respondent (MBNZ) was one of its clients (and part of a global logistics company that serviced McDonalds restaurants in NZ) – KTL brought a proceeding against MBNZ asserting a partly-written, partly-oral contract for a 5 year term covering additional runs, and for payment of short-term costs – Whether Judge erred in finding M lacked the authority to bind MBNZ or make representations to KTL, or failed to take all the evidence into account – HELD: Viewed in the context of KTL’s overall relationship with MBNZ, the structure MBNZ put in place for the selection and management of new contractors meant M had the ostensible authority to secure a binding agreement on behalf of MBNZ – Weight of the evidence was to the effect that when KTL and MBNZ negotiated the terms on which KTL would assume additional runs, they both intended to be bound from 29 Jan 2018 and they reached an agreement on that basis – KTL took reasonable steps to try and continue the business before ceasing to trade (mitigating losses) – Appeal allowed and case remitted to HC for determination of quantum.

Evidence, anonymity orders - Login Required

[M] v R [2023] NZCA 386

Pretrial appeals

W (CA 624-2022) v R [2023] NZCA 397

Unsuccessful application for leave to bring a pretrial appeal under s217 Criminal Procedure Act 2011 – Proposed appeal would challenge decision that propensity evidence was admissible at W’s pending trial for injuring a child with intent to injure – Opportunity to revisit, in light of experience, the 2015 approach the CA adopted to leave in Hohipa v R – Jurisdiction and process to hear pretrial appeals – Legislative policy toward pretrial appeals – R v Leonard, and Hohipa criteria – Recent experience included doubling of leave applications per year, with leave and merits still argued together in most cases (contrary to the Court’s expectation) – HELD: Restatement of leave criteria – Proposed appeal arguable, but merits not strong – Propensity evidence was robust, and the propensity sufficiently distinctive – Evidence not illegitimately prejudicial, and its evaluation was a jury question – Application for leave to appeal declined.

Local government, rates, judicial review

New Zealand Forest Owners Association Inc v Wairoa District Council [2023] NZCA 398

Following a special consultation process, respondent Council decided to adopt a new rating scheme which shifted the rating burden among ratepayers, reducing rates for most residential properties and increasing them for farmers and commercial forest owners – Appellant (NZFOA) was incorporated society representing the interests of commercial plantation owners and sought judicial review of decision – Whether decision was unlawful or unreasonable – Appeal turned on the legislation and NZFOA’s claim that a rating differential had to bear a “rational connection” to costs caused by the relevant activity or benefits enjoyed by those engaging in it – Wellington City Council v Woolworths New Zealand Ltd (No 2) and Auckland Council v CP Group Ltd (CA & SC) considered – HELD: To invoke a fiduciary duty here would be to modify the statutory objective and criteria for that decision – Rational connection required the decision be justified by reference to considerations which must or might be taken into account under rating legislation – There did not need to be a direct relationship between costs caused by the forestry industry and the rates it was required to pay – No evidence the Council sought to deter forestry investment – Not persuaded the Council’s decision to discriminate among forestry interests was unfair – Appeal dismissed.

New Zealand High Court

Sentence, manslaughter

R v Tiddy [2023] NZHC 2288

Guilty plea by T to charge of manslaughter and causing the death of B – At time of offending T had never held a driver licence, and had been forbidden to drive by police until appropriate licence obtained – T, with B in the vehicle, was travelling at excess speed, lost control of the vehicle which rolled once before hitting a tree – Neither T nor victim wearing a seatbelt – B suffered catastrophic head injuries and was killed instantly – T had been drinking alcohol and smoking cannabis earlier in the evening – Blood alcohol level 141microgm per 100ml of blood – Appropriate sentence – No guideline case for manslaughter sentencing – R v Millar comparable – HELD: Starting point of 6.5 years adopted with 10 percent uplift for aggravating factors (previous convictions) – Discounts of 25 percent for guilty plea, 5 percent for attendance at restorative justice and remorse, and 10 percent discount for background and cultural circumstances – Sentence imposed 4.5 years imprisonment with minimum period of imprisonment (MPI) of 2 years – Disqualified from driving for 5 years commencing day released from custody.

Sentence, murder, wounding with reckless disregard

R v Bourne [2023] NZHC 2367

B found guilty by jury on charge of murder, and charge of wounding with reckless disregard – B and F went to meet S to buy methamphetamine – B was very intoxicated – F got into S’s vehicle and B shortly after retrieved his firearm and fired into the front of the vehicle – F received wounds consistent with fragmentation – Further shots were fired, one of which killed S – appropriate minimum period of imprisonment (MPI) – HELD: MPI of 10 years would be appropriate but did not take account of the charge of wounding F – Two years added to MPI in consideration of totality – Sentence imposed life imprisonment with MPI of 12 years.

Sentence, murder

R v Wilson [2023] NZHC 2376

Guilty plea by W to charge of murder – W and victim (P) had lived together for some years and relationship was volatile at times – W had been smoking cannabis and methamphetamine, and cut and stabbed P with a knife, inflicting some 39 wounds – P likely to have died within minutes – Appropriate minimum period of imprisonment (MPI) – Comparable fatal stabbing cases considered which involved calculated planning against vulnerable victims – Extensively planned and brutal family violence resulting in murder generally supported starting point in the range of 18 to 20 years – HELD: Presence of s104(1)(b), (e), and (g) factors meant a non-parole period of at least 17 years required – Starting point of 17 years adopted (reflecting more limited planning than comparator cases), with one year discount for guilty plea – Sentence imposed life imprisonment with MPI of 16 years.