New Zealand Law Society - Courts roundup 3 July - 9 July 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
New Zealand Tramways and Public Passenger Transport Employees’ Union Wellington Branch Inc v Tranzurban Hutt Valley Ltd [2025] NZSC 69 (2 July 2025)
Unsuccessful leave application – Union represented bus drivers Tranzurban employed – Many rostered on single workday to work for period in morning and period in afternoon, with extended time between where not rostered to work – Known as “split shift” – Union and Tranzurban disagreed on whether each split shift one “work period” or two for Employment Relations Act 2000 (Act) purposes –
SC said given nature of Tranzurban’s business, cl 8 Collective Agreement contemplated possibility of multiple work periods in day, or shift – Did not appear to be inconsistent with terms of s 69ZC(a) Act here – In future case s 69ZC effect in particular employment context might raise matter of general or public importance, or general commercial significance – Outcome here turned on distinctive facts – Not necessary in interests of justice for SC to hear and determine Union’s proposed appeal – Application dismissed.
Fuller v Fraser [2025] NZSC 71 (2 July 2025)
Unsuccessful leave application – Self-represented PF’s proceeding against District Court Judge GF struck out on filing in HC as plainly abuse of process – Decision on papers under r 5.35B High Court Rules 2016 –
CA dismissed appeal after oral hearing where PF appeared, but GF did not – CA described claim as collateral attack on Judge personally, ruling Judge’s pleaded actions protected by absolute immunity under s 23 District Court Act 2016 – Allegations concerned conduct of hearing before Judge – PF’s attempts to evade immunity by repleading his claim, for example in contract and under New Zealand Bill of Rights Act 1990, all rested on plainly incorrect proposition Judge acting “ultra vires” and lost immunity –
In SC said judicial immunity did not extend to malicious, coercive or deceptive conduct – SC said Judge undoubtedly acting in judicial capacity and accordingly immune from liability – Application dismissed.
Fuller v Patel [2025] NZSC 72 (2 July 2025)
Unsuccessful leave application – F objected to New Zealand Police Eagle helicopter flying over F’s residential properties in Auckland, contending amounted to repeated aerial surveillance – Said campaign via police harassment of helicopter surveillance began immediately after his conviction and sentence of community work set aside in Waitakere District Court– Said helicopter’s surveillance linked to litigation activity –
F brought claim in HC – Named as defendant P, Waitakere Area Controller for Police Eagle helicopter – Claim struck out under r 5.35B High Court Rules 2016 as abuse of process – F appealed to CA, which held hearing at which he appeared – P took no steps and did not appear – CA ruled all claims untenable and proceeding unsalvageable – Dismissed appeal –
SC said proposed appeal did not meet leave criteria; causes of action did not exist, did not apply or were plainly untenable – Application dismissed.
Tamati v R [2025] NZSC 70 (3 July 2025)
Unsuccessful appeal from CA – Judgment concerned whether alleged deficiencies in trial counsel’s closing address gave rise to miscarriage of justice – Ordinarily required appellant to show counsel acted unreasonably, assessed in overall trial context and reasonably possible deprived them of more favourable verdict – Judgment also addressed whether Judge ought to have given reliability warning –
T guilty of five charges of sexual offending against 15-year-old complainant: two charges of sexual violation by rape, two charges of sexual violation by unlawful sexual connection and one charge of doing indecent act on young person – Also convicted of one representative charge of supplying methamphetamine to her –
T and H picked up complainant and two of her friends, of about same age – Complainant and T knew each other through her family – Travelled to H’s house, where consumed cannabis, alcohol and methamphetamine – T, tattoo artist, tattooed complainant – Sexual violation charges arose from two incidents said to have occurred during night, the first in back of car (car incident), and second on couch in bedroom (bedroom incident) – H and F were in room at time of bedroom incident, engaged in sexual activity –
At trial, Crown called H and F as witnesses – H said had not seen T having sex with complainant but had seen them “cuddling up” earlier in night and looking “cosy” on couch – F gave confused account, diverging in some respects from statement to police – Initially told police had not been aware of what happened at time and complainant told her later – Said during cross-examination had walked in on T and complainant, saw rape taking place – When challenged, reverted to original account, saying did not remember “that actual … rape scenario happening” –
In closing address, T’s defence counsel did not mention F’s evidence or bedroom incident more generally – Instead, chose to advance fabrication defence (that complainant falsely accused T) referring to, among other things, sequence of events following party –
Jury returned verdicts of guilty on all six charges – CA dismissed T’s appeals against conviction and sentence –
T granted leave to appeal to SC against conviction – Questions before SC: (a) whether trial counsel errors may have caused miscarriage of justice; and (b) whether reliability warning required –
SC unanimously dismissed appeal – Said fabrication reasonably available defence here – Agreed failure to address bedroom incident in closing misjudgment, but not likely to cause miscarriage of justice – Reliability warning not required here – Appeal dismissed.
Iongi v R [2025] NZSC 73 (3 July 2025)
Partly successful leave application – Approved question whether CA correct to dismiss appeal against conviction – Proposed sentencing appeal predicated on failure of conviction appeal – Application partly allowed.
K (SC 41/2025) v R [2025] NZSC 74 (3 July 2025)
Successful leave application – Approved question whether CA correct to dismiss appeal – Leave granted in general terms, but counsel should focus on whether miscarriage of justice may have been occasioned by trial Judge’s directions in summing up with respect to: (a) source of child complainant’s sexual knowledge; and (b) alternative explanation for evidence about applicant urinating during sexual assault – Application allowed.
Kea Investments Ltd v Wikeley [2025] NZSC 75 (4 July 2025)
Successful leave application – Approved question whether CA correct to discharge permanent anti-suit and anti-enforcement injunctions awarded to Kea Investments Ltd in HC – Appeal scope did not extend to permitting parties to revisit CA findings where W refused leave in separate judgment – Given appeal nature, complexity and W being self-represented, counsel to be appointed to assist – Application granted.
Wikeley v Kea Investments Ltd [2025] NZSC 76 (4 July 2025)
Unsuccessful leave application – Self-represented W and Kea applied for leave to appeal CA judgment – Kea granted leave in separate judgment – SC said dispute background extensive – W’s submissions largely sought to relitigate concurrent findings of fact in Courts below – Proposed appeal did not raise matters of general or public importance, or commercial significance, no risk of substantial miscarriage of justice – Application declined.
Rafiq v Baycorp Ltd [2025] NZSC 77 (4 July 2025)
Unsuccessful application to review Registrar decision – Registrar rejected self-represented R’s documents for non-compliance, including failure to set out appeal grounds – SC Judge agreed – Application dismissed.
[E] v R [2025] NZCA 288
[R] v R [2025] NZCA 291
[L] v R [2025] NZCA 300
Stewart v R [2025] NZCA 290
Unsuccessful appeal by S against sentence of six years' imprisonment for aggravated robbery (lead offence) – Nearly 100 previous convictions – Starting point of six years six months adopted, uplifted by 12 months for other offending - 15 per cent discount each for guilty plea and personal mitigating factors (addictions, background, rehabilitation efforts, remorse and ill health) -
Starting point within range - Consistent with guideline judgment R v Mako, starting point was within the lower limit of the available range - Aggravated robbery involved actual violence using loaded firearms, disguised night-time robbery of commercial premises with at least one member of public present - Moderate planning and premeditation - Higher starting point of 8 years would have been within range - Discounts for mitigating factors within range - Allowance of 30 per cent discounts adequate - Even if larger discount justified, lower starting point effectively offered an additional 7.5 per cent discount on S’s preferred starting point – Appeal dismissed.
Harris v R [2025] NZCA 292
Unsuccessful appeals by H and R against respective sentences of eight years' imprisonment, and six years two months' imprisonment, and with MPIs of 50 per cent – Victim kidnapped and tortured for 24 days to extort cryptocurrency – Starting point of 13 years six months' imprisonment adopted for H - 25 per cent discount for early guilty plea and 15 per cent for personal and background factors – Starting point of eight years six months' imprisonment adopted for R - Uplift of one year for other offending - Reduction for totality of six months - Allowances of 20 per cent given for guilty plea, five per cent for remorse, 10 per cent for personal background factors which had a nexus to offending -
H’s sentence not manifestly excessive - Kidnapping was of most serious kind, despite a lack of permanent physical injuries - Several aggravating factors present, including premeditation, threats of violence, gang affiliation and treating victim with particular cruelty – H a principal offender – Offending warranted close to maximum penalty – Although H completed several courses while on remand, 15 per cent allowance given for H’s personal factors within range, no further allowance required - Effect of an offender’s imprisonment on children relevant factor when considering personal circumstances during sentencing process - No further discount for impact of incarceration on H’s children as no information provided – No error in MPI - R’s sentence not manifestly excessive – R’s role lower level than H but R was willingly involved in both planning and execution of offending – Remorse discount generous - Starting point within range - 15 per cent discount for personal factors appropriate - No error in MPI – Appeals dismissed.
R v Manuel [2025] NZHC 1787 (1 July 2025) Gault J
Sentencing – SM pleaded guilty to murder – With brother, attacked victim – SM stabbed victim in chest, then punched head six times and kicked head when appeared unconscious – Life imprisonment – Starting MPI set at 12 years' imprisonment to reflect violence, use of weapon and multiple offenders – Six months uplift for previous convictions – Six months reduction for guilty plea – 18 months reduction for personal circumstances – Final MPI 10 years 6 months' imprisonment –
BM pleaded guilty to causing grievous bodily harm with intent to injure – Instigated attack by punching victim in face – Also dragged victim along ground and dropped face down onto concrete – Starting point three years' imprisonment imposed to reflect violence, attack to head, multiple attackers and victim vulnerability when unresponsive – 20 per cent reduction for guilty plea – 10 per cent reduction for personal circumstances – Five per cent reduction reflecting remorse and rehabilitative efforts/prospects – Four months reduction for time spent on electronically monitored bail – Final sentence 19 months' imprisonment.
Standish v Standish [2025] UKSC 26 (2 July 2025)
Unsuccessful appeal from CA – Arose from proceedings brought under Matrimonial Causes Act 1973 for court to make division of parties’ assets upon divorce – What has been termed “big money” case and concerned scope and application of “sharing principle” – Dictated certain types of property be shared between parties on divorce –
Husband aged 72 and wife 57 – Husband had very successful career in financial services industry – Acquired considerable wealth – Second marriage for both husband and wife – Began living together in 2004 in Switzerland where husband then working, married in 2005 – Had two children together – Marriage broke down early 2020 –
Appeal concerned portfolio of investments (2017 Assets) husband transferred from sole name into wife’s sole name in 2017 – By trial time, 2017 Assets worth approximately £80 million – Transfer to wife part of tax planning scheme – Husband’s intention for wife to place 2017 Assets in trusts for children thereby negating inheritance tax – Wife did not set up trusts, continued to hold 2017 Assets in sole name – Trial judge ruled, pre-transfer, most 2017 Assets “non-matrimonial property” (NMP) – But, by virtue of transfer, NMP portion of 2017 Assets became matrimonial property (MP) – Meant sharing principle applied: all 2017 Assets should be shared between parties – Because source of 2017 Assets primarily husband rather than wife, Judge decided appropriate division not 50/50 but rather 60/40 in favour of husband –
Both husband and wife appealed to CA – CA said husband entitled to 75% of 2017 Assets plus half of 25% of 2017 Assets – This was because only 25% of 2017 Assets was MP subject to sharing principle – Bulk of 2017 Assets ordered to be returned to husband – Wife appealed to SC – Said CA placed too much weight on husband being primary source of 2017 – Said, properly analysed, transfer effective as gift to her of 2017 Assets –
SC unanimously dismissed appeal and upheld CA decision – Said overall aim of court making financial order on divorce to achieve fair outcome – In so doing, courts guided by certain key principles – This appeal concerns, in particular, “sharing principle” –
Applying principles to present case, no reason to interfere with CA assessment (prior to any matrimonialisation) 25% of 2017 Assets MP and 75% NMP – 25% should be shared equally – Question whether 75% that was NMP had been matrimonialised – It had not – Nothing to show, over time, parties were treating 2017 Assets as shared between them – Transferring 2017 Assets to wife to save tax and for children’s benefit, by saving inheritance tax, not for wife’s benefit – Therefore, 75% of 2017 Assets that was NMP had not been matrimonialised – CA correctly decided (although SC did not agree with all its reasoning) husband entitled to 75% of 2017 Assets plus half of 25% of those Assets – Appeal dismissed.
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