New Zealand Law Society - Courts roundup 24 November - 30 November 2022

Courts roundup 24 November - 30 November 2022

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

Supreme Court

New Zealand Supreme Court

Self-represented litigant, child custody payment

P v High Court at Auckland and ors [2022] NZSC 136 (22 November 2022)

Unsuccessful leave application – Self-represented P applied for leave to appeal CA decision – Proposed appeal arose in context of ongoing complaint about Commissioner of Inland Revenue (Commissioner) child support assessment – Appeal essentially reprised arguments raised in CA –

SC said how events transpired potentially created issue about inter-relationship between s 56 Senior Courts Act 2016 and s 124 of Human Rights Act 1993 – However, this was not appropriate case to consider issue because proceeding abuse of process – Leave not in interests of justice – Application dismissed.

New Zealand Court of Appeal

Trusts, undue influence

Hingston v Hingston [2022] NZCA 568

Family dispute concerning a transaction in 2009 providing for the sale and occupation of father’s (K’s) house, and the transfer of his assets and superannuation payments to a trust associated with son (D) – At the time, transaction allowed K to pay ex-partner her relationship property entitlement – Subsequently D considered K had breached Agreement to occupy – Finding of undue influence challenged – Whether independent legal advice sufficient – As documented, the transaction appeared completely one-sided and in favour of the Trust – Transaction called for an explanation and evidential burden on D and the Trust to show it was not the result of undue influence – HELD: no evidence to suggest the legal advice was not competent – No suggestion K not fully competent at the time transaction concluded or did not understand the consequences – D produced sufficient evidence to show transaction did not result from undue influence – Appeal allowed.

Property development ventures, verbal agreements, recovery of “investments”, equity

Mo v Yang [2022] NZCA 573

Between 2015 and 2018, appellants provided funding for a number of property development ventures undertaken by respondents – Developments did not proceed as planned, and relationships between the parties soured – None of the relevant dealings in relation to any of the five properties were documented in writing – At issue was the legal or equitable basis on which appellants were entitled to recover their “investments”, and quantification – Restitutionary remedy of “money had and received” – Resulting or constructive trusts – Interest payable – Accepted the cultural context made no difference to the issues now for determination – HELD: imposition of a constructive trust on property H gave appellants a 40 percent beneficial interest and no need to resort to money had and received – Concluded agreement found in relation to three of the properties – Assessment of contributions to fifth property remitted back – Not an appropriate case for a s18 Interest on Money Claims Act 2016 exception – Appeal allowed in part. 

Criminal procedure, appeal against conviction, separation of charges - Login Required

Delamare v R [2022] NZCA 578

D convicted by jury on charges of assaulting a constable with intent to obstruct him in the execution of his duty (x2) – D found not guilty of three other charges arising from the same incidents, in a courtroom – Charge 2 alleged D assaulted Constable H and assault comprised D pushing at Constable H when he attempted to restrain D “and/or” grabbing the inside of Constable H’s thigh – At issue was whether Charge 2 should have been split into two separate charges – Section 17(1) Criminal Procedure Act 2011 – Mason v R (SC) relevant – HELD: there were two different assaults incorporated into Charge 2, and were capable of being separated from each other because of clear difference between pushing at arm, and grabbing inside of thigh – Although part of the same melee, they were discrete and different events that should have given rise to separate charges – Jury not correctly instructed on the need to be unanimous about the separate elements of the offending – Miscarriage of justice established – Retrial ordered.

New Zealand High Court

Judicial review, climate change

Lawyers For Climate Action NZ Inc v The Climate Change Commission and anor [2022] NZHC 3064 (23 November 2022) Mallon J

Unsuccessful judicial review application – Lawyers for Climate Action New Zealand (LCANZ) incorporated as non-profit group to advocate for New Zealand to meet its commitments under Paris Agreement – Brought judicial review proceedings against Climate Commission and Minister of Climate Change to challenge advice Commission gave Minister under Climate Change Response Act 2002 (Act) – Challenged two parts: Nationally Determined Contribution (NDC) Advice; and Emissions Budgets Advice - NDC Advice concerned whether New Zealand’s 2016 NDC consistent with global effort to limit warming to 1.5˚C above pre-industrial levels – Commission advised 2016 NDC not consistent with global 1.5˚C effort – Advised commitment level that would be compatible with that effort – Budgets Advice concerned emissions budgets for all New Zealand’s greenhouse gases for consecutive periods with view to putting New Zealand on track to meet domestic 2050 Target and global 1.5˚C effort, as set out in Act –

LCANZ challenged Commission’s Advice on four grounds: 1) NDC Advice based on logical or mathematical error; 2) Commission misinterpreted statutory purpose regarding budgets; 3) Commission misinterpreted provisions relating to measuring emissions for purposes of setting and meeting Budgets, specifically, by recommended modified activity-based accounting (MAB); and 4) proposed emissions budgets were irrational, unreasonable and inconsistent with Act purpose –

HC dismissed all review grounds – Said Commission did not make mathematical or logical error in NDC Advice, although it could have set out its approach more clearly – Commission did not misinterpret Act statutory purpose, but correctly understood that emissions budgets set having regard to mandatory relevant considerations and with both 2050 Target and global 1.5˚C goal in mind – Commission did not err in law by recommending MAB as accounting methodology for measuring progress – Legislation did not mandate annual national inventory reporting – Commission did not act irrationally, unreasonably or inconsistently with statutory purpose when recommending emissions budgets – Parliament did not task Commission with particular model – Commission’s approach sufficiently justified by reasoning and information on which reasoning based – LCANZ failed to show Commission’s Advice fell outside its task to provide advice consistent with Act purpose – Application dismissed.

Supreme Court of Canada

Entrapment, under-age sex, prostitution

R v Ramelson [2022] SCC 44 (24 November 2022)

Unsuccessful appeal from Ontario CA – R’s case was one of four unsuccessful appeals following “Project Raphael”, online investigation police conducted between 2014 and 2017 – Targeted people searching online to pay to have sex with girls and boys – Involved police placing fake advertisements on website escort sub-section – People who engaged with ads were led to text message conversations between supposed 18-year-old sex worker, who was actually undercover police officer – Once prospective client and undercover officer agreed to sexual transaction, officer would then reveal they were too young for sex work – Every client who agreed to continue with transaction and showed up to designated hotel room was arrested Project Raphael led to arrest of 104 men, including R –

R charged with three offences: (1) telecommunicating with person he believed under 16, for purpose of inviting sexual touching; (2) communicating to obtain sexual services for consideration from person under 18; and (3) telecommunicating to make arrangements to commit sexual offences against person he believed was under 16 –

R convicted of all three offences, but applied to have proceedings stopped, alleging he was victim of police entrapment – R said officers offered him opportunity to commit crime – To avoid operation being considered entrapment, police investigation had to be “bona fide inquiry” – Here meant police must have had reasonable suspicions that crime was being committed in website escorts section –

Ontario Superior Court of Justice initially dismissed R’s entrapment application in November 2019 – However, after SC May 2020 ruling court invited parties to make additional submissions and ultimately revised its decision, finding that police had entrapped R – Crown successfully appealed to Ontario – R appealed to SC –

SC unanimously dismissed appeal – Said Project Raphael bona fide inquiry because “police had reasonable suspicion in a space defined with sufficient precision” – Space was particular type of ads within York Region website escort subdirectory that emphasised sex worker’s youth – Also said offences police provided opportunity to commit “were rationally connected and proportionate” to offences they suspected were occurring in that space –  

To determine whether investigation, conducted on broad virtual spaces, such as Internet, was precisely defined, courts had to look at space’s function, interactivity and sub-spaces embedded into broader virtual space –

SC said entrapment doctrine strove to balance competing interests: rule of law and need to protect individual’s privacy interests and personal freedom from state overreach, with state’s interest in investigating and prosecuting crime – Requiring police investigations to pass bona fide inquiry test helped to ensure that balance – Appeal dismissed.

Evidence, statutory privilege, judicial discretion

Canada (Transportation Safety Board) v Caroll-Byrne [2022] SCC 48 (25 November 2022)

Unsuccessful appeal from Nova Scotia CA – In March 2015, Air Canada flight from Toronto had accident landing in wind and snow at Halifax Airport – Flight carried 133 passengers and 5 crew members – Several injured, including 25 taken to local hospitals – Following accident, some passengers brought class action lawsuit in Nova Scotia Supreme Court - Claimed negligence of airline, pilots, aircraft manufacturer, airport and others, caused them harm –

In exercise unrelated to class action, Transportation and Safety Board of Canada (Board) investigated accident – Board was federal government agency mandated to improve aviation safety – Following investigation, Board issued report but did not assign blame as not its role – Board not part of class action –  

As part of its defence, aircraft manufacturer filed motion asking court to order cockpit voice recording release – Said access to recording was necessary for fair trial and to determine what caused accident – Only recording copy with Board who opposed release – So did airline and pilots, who wanted to protect pilot privacy –

Board claimed recording was protected by “statutory privilege”, here, s 28 Canadian Transportation Accident Investigation and Safety Board Act (Act) said no one could be required to produce on-board recording or give evidence related to it in legal proceedings unless authorised by court or coroner – Section 28(6) said judge or coroner had to examine on-board recording “in camera”, and give Board a reasonable opportunity to make observations about recording – Privilege attached to on‑board recording served two purposes: to protect pilot privacy and to promote aviation safety –

Motion judge listened to recording in camera – Decided was reliable, relevant and necessary evidence for resolving class action – Said recording importance to administration of justice outweighed importance of statutory privilege – Judge refused Board request to present observations or arguments about recording, concluding they were unnecessary for him to understand what was at stake – Board appealed unsuccessfully to Nova Scotia CA – Appealed to SC –

SC majority dismissed appeal – Said motion judge made no reviewable errors in deciding to order disclosure – Release decision stood – Act specified test here, whether public interest in proper administration of justice outweighed privilege attached to recording –

Having weighed relevant factors, majority said judge made fact-driven and discretionary decision – Since there was no error of law or palatable and overriding error of fact or proof he abused his discretion, judge’s decision should stand –  

Majority also rejected Board’s claims regarding right to make arguments in camera without other parties present – Said judge had discretion to hear arguments or not – Judge also had discretion to allow other parties to be present or not – Appeal dismissed.

United Kingdom Supreme Court

Scottish Parliament, powers, referendum

REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31 (23 November 2022)

Scottish Government drafted Scottish Independence Referendum Bill which provided for referendum on question, “Should Scotland be an independent country?” – Under Scotland Act 1998 (Scotland Act), Scottish Parliament’s power to legislate (or its “legislative competence”) limited – Bill provision would be outside Scottish Parliament’s legislative competence and therefore not law if it related to matters reserved to United Kingdom Parliament in Westminster (ss 29(1) and (2)(b)) – Reserved matters included “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)) –

Lord Advocate (Scottish Government senior law officer) asked SC whether proposed Bill providing for referendum would be outside Scottish Parliament’s legislative competence because it related to either or both reserved matters of the Union or the United Kingdom Parliament – Legal question about Scottish Parliament’s power to make legislation under Scotland Act – SC not being and could not be asked to give view on distinct political question of whether Scotland should become independent from rest of the United Kingdom –

Scottish Parliament powers not in issue during 2014 referendum on Scottish independence – Was because, in 2013, Order in Council under section 30(2) Scotland Act modified definition of reserved matters to enable Scottish Parliament to pass 2014 referendum legislation – United Kingdom Government unwilling to agree to making of another Order in Council to facilitate another referendum on Scottish independence –

SC unanimously answered questions before it as follows – First, question Advocate General referred was devolution issue, which meant SC had jurisdiction to decide it – Secondly, SC should accept reference – Thirdly, provision of proposed Bill which provided for referendum on question, “Should Scotland be an independent country?” did relate to matters which have been reserved to United Kingdom Parliament under Scotland Act – In particular, related to reserved matters of Union of Kingdoms of Scotland and England and Parliament of the United Kingdom – Accordingly, in absence of any modification of definition of reserved matters (by Order in Council or otherwise), Scottish Parliament did not have  power to legislate for referendum on Scottish independence.

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