New Zealand Law Society - Courts roundup 27 March - 2 April 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Burden v ESR Group (NZ) Ltd [2025] NZSC 18 (26 April 2025)
Successful appeal from CA – Appeal concerned Copyright Act 1994 (1994 NZ Act) – Issue whether copyright owner’s right to issue copies of work to public in New Zealand (first distribution right) exhausted (“spent’’ or “used up’’) in circumstances where copies circulated without copyright licence in New Zealand had previously circulated abroad without copyright owner consent –
B furniture designer and maker – Owned second and third appellants, PGT Reclaimed (International) Ltd and Plantation Grown Timbers (Vietnam) Ltd, which in turn were copyright owners – Referred to collectively as PGT –
Between March 2013 and November 2014, ESR Group (NZ) Ltd (ESR), imported furniture from Vietnam that infringed PGT’s copyright and sold it in New Zealand without copyright licence – ESR knew from 28 August 2014 furniture infringed PGT’s copyright – Common ground relevant furniture copies previously been circulated in Vietnam –
Under ss 29(1) and 31 1994 NZ Act, person liable for primary copyright infringement if issued copies of work to public (breach first distribution right) – Section 9(1) defined issuing copies as “the act of putting into circulation copies not previously put into circulation” – If ESR liable for primary infringement, did not matter whether or not ESR knew copies sold breached PGT’s copyright –
Under s 35, person liable for secondary infringement if import copy of work, which infringed copyright into New Zealand, with knowledge or reason to believe was infringing copy –
At issue in appeal whether expression “not previously put into circulation” in s 9(1) 1994 NZ Act referred to prior circulation abroad or just in New Zealand – Further issue whether expression referred only to prior circulation with copyright owner consent –
HC agreed with PGT “not previously put into circulation” in s 9 (1) referred to prior circulation in New Zealand only – Also agreed with PGT provision related only to prior circulation with copyright owner consent – Ordered ESR pay damages to PGT for primary copyright infringement – CA reached opposite conclusion on both issues – PGT granted leave to appeal to SC –
SC unanimously allowed appeal and reinstated HC order awarding damages against ESR – Appeal allowed.
Rafiq v Auckland Transport [2025] NZSC 19 (26 March 2025)
Unsuccessful leave application – Self-represented R applied for leave to appeal against Judge declining R’s application to review Deputy Registrar’s decision – Deputy Registrar refused to waive filing fee for application for leave to appeal from HC judgment – Not appeal reasonable solvent litigant would pursue and R had history of filing appeals and seeking waivers –
SC said proposed appeal related to particular circumstances – No issues of general and public importance – No risk of miscarriage of justice – Application dismissed.
Piukana v R [2025] NZCA 71
Unsuccessful appeal by P against HC refusal to grant a discharge without conviction for participating in an organised criminal group for his role in commercial importation of methamphetamine – Group imported more than 100kgs - P sentenced to 14 months imprisonment, commuted to seven months’ home detention – Syndicate involved corrupt baggage handlers at international airport – P was a baggage handler but his role in syndicate was as a messenger – Whether HC wrongly treated P as if he were involved as baggage handler and therefore had breached his employer’s trust –
HC considered all relevant factors under s106 and s107 Sentencing Act 2002 – No suggestion HC thought P was engaged in offending as baggage handler or breached trust as employee - No basis for claim HC unduly influenced by amount of methamphetamine imported – P received financial gain – Indirect financial benefit still a benefit - P would have been aware of offending – P’s brother a baggage handler and high up in syndicate – P’s role minor but that didn’t mean his offending was minor – P gave real assistance in role as messenger – Effect of conviction on employment or securing finance were normal consequences of a conviction – Appeal dismissed.
Moala v R [2025] NZCA 79
Successful appeal by M against conviction for assault with a weapon – M also convicted of intentional damage - Sentenced to nine and half months imprisonment in respect of assault with a weapon to be served cumulatively - Convicted and discharged in respect of intentional damage – M appealed on basis question trail provided to jury included material errors regarding the intention required to prove an assault, which resulted in a miscarriage of justice –
Question trail conflated intentional movement (deliberately swinging phone at complainant), with the intention to apply force – Those were separate and distinct elements - The first related to the deliberate (as opposed to accidental) action involved in swinging the phone - The second related to M’s intention at the time the phone was swung – That was, whether M was attempting to apply force to the person of another at time phone was swung - The two forms of intention were not the same – It also did not direct the jury to consider whether M was attempting to strike the complainant –
Instead, it presupposed M was attempting to strike the complainant at the time he swung the phone – Appeal allowed – Retrial ordered.
Te Whata v Chief Executive of the Department of Corrections [2025] NZCA 74
Day v R [2025] NZCA 76
Te Ohu Kai Moana Trustee Ltd together with Te Ohu Kai Moana Trust v Attorney-General [2025] NZHC 657 (27 March 2025) Boldt J
Successful declaration application – Trust said Crown in ongoing breaches of Treaty of Waitangi Fisheries Settlement 1992 – HC agreed – Māori received fishing quota as part of 1992 settlement – Breach arose from Crown's failure to offset losses caused by mandatory confiscation of settlement quota under s 23 Fisheries Act 1996 – HC said Crown and Māori intended transfers of settlement quota would be permanent and not subject to reappropriation without compensation – Obligations under settlement had ongoing legal force – Crown's affirmative defences rejected – Declarations issued.
R v RA [2025] SCC 7 (20 March 2025)
Unsuccessful appeal from British Columbia CA – In August 1978, RA babysitting then five-year-old complainant and other children at RA’s home – In statement to police, RA asked complainant if she wanted to touch him and she did so, then RA pulled away – Told complainant not to tell anyone what happened – RA charged with one count of indecently assaulting complainant contrary to s 149 Criminal Code, R.S.C. 1970, c. C-34, as section existed in 1978 –
Following Provincial Court trial RA acquitted – Trial judge said only issue was whether Crown proved “assault”, essential element of offence – Trial judge said to prove “assault”, Crown required to prove direct, intentional application of force to complainant – Because RA did not touch complainant or make any threats, Crown had not proven element of offence beyond reasonable doubt –
Crown appealed, saying trial judge misinterpreted elements of assault when saying sexual touching to be physically initiated by accused – CA unanimously allowed appeal and set aside acquittal – Said trial judge wrong to conclude no direct and intentional application of force to complainant treating case as if complainant had not been touched – Also said any intentional contact with child by adult committed in circumstances of sexual nature is assault, regardless of whose physical movement initiated contact – Since only issue whether RA’s conduct amounted to assault, CA set aside acquittal and entered conviction for indecent assault – Sent back to Provincial Court for sentencing –
RA appealed to SC, saying element of assault required proof of action by RA beyond passive reception of complainant touching – Also said CA incorrect to apply different test for determining whether assault committed where complainant child initiated contact – SC dismissed appeal and confirmed conviction – Appeal dismissed.
R v PB [2025] SCC 8 (21 March 2025)
Unsuccessful appeal from Saskatchewan CA – PB charged with sexual assault – Complainant only witness called to testify at trial – Said spent New Year’s Eve at friend’s house, where they drank, socialized and smoked marijuana – Said PB, friend’s boyfriend, then sexually assaulted her three times throughout night –
PB said complainant’s testimony not sufficiently credible or reliable to prove case against him beyond reasonable doubt – Particularly said evidence unreliable because complainant said memory relevant events based on “flashbacks” – Trial judge accepted complainant’s evidence and found PB guilty –
PB appealed conviction, saying trial judge failed to give sufficient reasons for decision – Said judge failed to make concrete factual findings about parts of complainant’s evidence accepted or not – Also said trial judge erred evaluating credibility and reliability of complainant’s evidence, notably “flashback” memory –
CA majority dismissed appeal – Said trial judge’s reasons sufficient – Reasons contained enough detail to permit review for error on appeal – On second issue, majority said trial judge’s conclusion on credibility and reliability one reasonable view of evidence supported – No proper basis to interfere –
SC dismissed appeal and confirmed conviction – Appeal dismissed.
R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets [2025] UKSC 11 (26 July 2025)
Unsuccessful appeal from CA – Appeal concerned with way local authorities determine applications for planning permission – Application may be considered by councillors at series of meetings before final decision made – Issue whether provision in local authority’s standing orders lawful if restricted voting at final meeting to those present at meetings where application previously considered –
Planning application to redevelop old brewery in Spitalfields made in May 2020 to London Borough of Tower Hamlets (Council) – Spitalfields Historic Building Trust (Trust) opposed to application –
Application came before Council’s Development Committee (Committee) at meeting on 27 April 2021 – Five members present – Committee voted unanimously to defer application consideration – Committee next considered application 14 September 2021 – By then, committee composition had changed – Council’s standing orders provided where planning application deferred, only members present at previous meeting able to vote on application – Meant only three of previous five Committee members voted on application – Committee resolved to grant planning permission by two to one vote –
Trust applied for judicial review of planning permission grant, saying unlawful to exclude Committee members from voting at September meeting if had not been present at April meeting – Trust said if more Committee members permitted to vote, application might have been refused – HC dismissed claim – CA dismissed Trust appeal – Trust appealed to SC –
SC unanimously dismissed appeal – Local Government Act 1972 (LGA 1972) conferred powers on Council to make standing orders regulating committee proceedings including power to regulate circumstances where member entitled to vote – No basis for interpreting these powers in narrow way so as to make provisions in Council’s standing orders unlawful –
SC said also common law rules regulated ability of councillors to vote – For example, councillor could not vote on matter if biased as decision would be unlawful – Existence of these rules showed right of councillor to vote not fundamental in sense Trust proposed – Also councillor participation in local authority business not apt to be analysed in terms of councillor’s personal rights – Relevant rights those of everyone in local authority’s area, who were entitled to expect local authority to take effective and lawful actions –
SC said LGA 1972 provisions dealing with meetings and voting to be interpreted in this context – Did not confer right to vote, as Trust suggested – Instead, stipulated majority required for resolution to be carried – Provision assumed councillors had general entitlement to vote, just as previously assumed under common law – Appeal dismissed.
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