New Zealand Law Society - Courts roundup 30 March - 5 April 2023

Courts roundup 30 March - 5 April 2023

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

Coat of arms

New Zealand Supreme Court

Sentencing, methamphetamine

Kulu v R [2023] NZSC 26 (27 March 2023)

Unsuccessful leave application – K and co-offender F guilty of methamphetamine offending – Trial Judge found were equal partners, playing complementary leading roles – Amount imported substantial (around 20 kg) –

Trial Judge sentenced K to 18 years’ imprisonment (from 20-year starting point) and F to 17 years (from 19 year starting point) – Both subject to 50 per cent MPI –

F appealed to CA – CA said 19-year starting point was out of step with previous CA ruling and reduced to 17 years – Also increased allowance for personal factors from 10 to 15 per cent, leading to end sentence of 14 years five months – Reduced MPI from 50 to 40 per cent –

K sought time extension to appeal to CA against sentence – Case essence was parity demanded sentence be reduced commensurately with reduction in F’s sentence – CA did not agree –

K wished to argue, if leave given, in light of sentence reductions in another case his sentence too high – SC said specific to case facts – Application dismissed.

Judgment recall, UNHRC

Thompson v Attorney-General [2023] NZSC 27 (27 March 2023)

Unsuccessful recall application – On 7 October 2016, SC declined Ms T’s application for leave to appeal against CA dismissing T’s appeal against HC decision dismissing claim for, among other things, declaration of a breach of s 22 New Zealand Bill of Rights Act 1990 (Bill of Rights) and public law compensation –

After SC judgement issued, T communicated with United Nations Human Rights Committee (UNHRC), under first optional protocol to International Covenant on Civil and Political Rights (ICCPR) – Alleged breaches of arts 2(3), 9(1) and 9(5) ICCPR by New Zealand as a result of being arbitrarily arrested and detained and being provided with no effective remedy – UNHRC adopted Views upholding communication on 2 July 2021 – New Zealand Government formally responded to Views, but did not make any commitment to provide compensation to T –

T said leave judgment be recalled because UNHRC’s Views is decision of unquestionable high authority (albeit one not binding on SC) relevant to case and wider human rights in New Zealand –

SC said Views not judicial body decision and decision in T’s own case – Not authority in another case that came to light shortly after judgment delivery that might have had precedent value affecting judgment reasoning – No very special reason justifying recall – Application dismissed.

New Zealand Court of Appeal 

Criminal procedure, name suppression

LF (CA 596-2022) v R [2022] NZCA 656

Partially successful appeal from refusal of permanent name suppression for applicant (LF) and his sister (E) – LF convicted and sentenced for serious sexual offences against six victims, committed when he was aged 14 to 17 – Most charges laid in the Youth Court (with statutory name suppression), but some laid in the District Court and others transferred to DC for sentencing – Leave application brought on the basis that the CA should consider the interplay between name suppression principles and youth justice, in particular at the discretionary stage of the test – Whether miscarriage of justice – LF had autism spectrum disorder (ASD), compounded by use of alcohol and cannabis – Media publicity focused on the victims’ perspectives – DV (CA 451-2021) v R distinguished – Risk of self-harm – Open justice principle – HELD: offending was serious despite LF’s personal mitigating circumstances – No error in assessment of risk justifying a second appeal – Harm publication would cause E did not reach the level of extreme hardship – Appropriate there be an order for permanent suppression of E’s name in connection with her brother’s offending, and to that extent appeal allowed – LF’s application for leave to appeal declined.

Conviction appeal

H (CA 225-2022) v R [2023] NZCA 83

Unsuccessful appeal against convictions on charges of indecent assault on a young person under 16 years (x3), sexual violation by unlawful sexual connection (x3), and rape (x2) – Complainant was H’s stepdaughter who was 12 years old at the time – Whether the trial Judge ought to have given the jury a direction pursuant to s122 Evidence Act 2006 as to the reliability of the complainant’s evidence regarding retraction of her complaint and any motivations she might have had for making a false complaint against H – HELD: key issue at trial was complainant’s credibility and whether, based on her evidence, the jury were satisfied beyond reasonable doubt that she was telling the truth – Quintessential jury issue – Reliability warning likely would have confused the jury and been of no assistance – Was for the jury to assess the evidence themselves – Judge’s direction appropriately instructed the jury as to how they should approach the issues of credibility and reliability of evidence – Appeal dismissed.

Evidence, search warrant – Login Required

Peters v R [2023] NZCA 84

Evidence, warrantless search – Login Required

Ronaki v R [2023] NZCA 85

Negligence, fire damage

Leisure Investments NZ Ltd Partnership v Grace [2023] NZCA 89

Unsuccessful appeal from decision finding appellant (LIP) liable for damages following events in 2017 when a large number of residential properties located in the Port Hills of Christchurch were badly damaged by fire set by an arsonist – LIP was owner and operator of a nearby adventure park which contained a chairlift with chair seats coated in plastic – Spot fires were caused by the plastic melting onto considerable quantities of dry slash underneath the chairlift – LIP found liable under s43 Forest and Rural Fires Act 1977 (the Act), of negligence and nuisance – Whether the Judge erred in his analysis of the evidence, and his interpretation of the Act – HELD: not necessary for LIP to have knowledge of relative ignition temperatures and melting points before it could be held liable to meet the standard of a reasonable chairlift operator – Common knowledge plastic melts when exposed to excessive heat and burns – Common knowledge dry slash highly flammable – Pre-requisites to liability under s43 made out – LIP liable in nuisance as well as negligence – Damages were appropriate – Appeal dismissed.

New Zealand High Court

Sentencing, murder, assault with weapon

R v TH and anor [2023] NZHC 630 (24 March 2023) Brewer J

Sentencing ­– Two brothers TH and HH involved in street brawl – TH stabbed man to death – HH kicked and stabbed man after he had fallen to ground – TH 20 at time – Convicted of murder and assault with weapon – HH 17 at time – Pleaded guilty to injuring with intent to injure – Previous case changed law on sentencing young people for murder – Manifestly unjust to sentence to life imprisonment – Sentence 18 years' imprisonment, with 7.5 years MPI imposed – Youth Justice principles applied to younger brother – Convicted and discharged – Permanent name suppression refused.

Judicial review, without notice application

Auckland Pride and ors v Minister of Immigration and anor [2023] NZHC 635 (24 March 2023) Gendall J

Unsuccessful without notice judicial review application – Interim orders and relief (served on pickwick basis but only on Crown) to require Minister of Immigration and Immigration New Zealand to prohibit Ms Keen-Minshull from entering New Zealand to speak at Auckland and Wellington "pro-women/anti-transgender rights" events – Application declined.

Declaration, guarantee

LMCHB (formerly L & M Resources) Ltd v Buller Coal and anor [2023] NZHC 633 (29 March 2023) Isac J

Unsuccessful declaration application – In 2021 SC said Bathurst not yet required to make $40m performance payment to L&M under agreement for sale of mining rights – Here L&M sought declaration that Buller Coal, Bathurst subsidiary, liable for same payment under separate guarantee contract – HC dismissed saying money under guarantee not yet “due” given contract terms, SC judgment and guarantee’s secondary nature – While it refused to find Buller Coal could enforce cl 3.10 under s 12 of CCLA, HC would have found implied term to that effect – HC said L&M should have brought argument under guarantee in first proceeding – Raising in subsequent proceeding abuse of process.

High Court of Australia

Sale of business, “carry on business”, COVID-19

Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd and ors [2023] HCA 6 (8 March 2023)

Successful appeal from New South Wales CA – Concerned construction of contract for sale and purchase of hotel property and assets – L vendor and D purchaser – Clause 50.1 provided, from contract date until Completion, Vendor required to "carry on the Business in the usual and ordinary course as regards its nature, scope and manner" –

Responding to COVID-19 pandemic, Minister made public health order directing pubs "must not be open to members of the public" except for sale of food or beverages to be consumed off premises – Complying with order, hotel sold only takeaway alcohol and food until 1 June 2020 when it re-opened subject to customer number restrictions as directed by subsequent public health orders – Before Completion, Purchaser informed Vendor that it would not complete contract as Vendor not ready, willing and able to complete contract – Was in breach of cl 50.1, amongst other clauses – Vendor maintained ready, willing and able to complete – After Completion Date passed, served notice to complete upon Purchaser – Ultimately, Vendor served notice of termination upon Purchaser for non-compliance with notice to complete – Purchaser commenced proceedings seeking declaratory relief – Said contract frustrated or Vendor not entitled to issue notice to complete –

Primary judge said contract not frustrated and cl 50.1 required Vendor to carry on business in usual and ordinary course so far as it was possible to do so in accordance with law – CA majority, said public health order supervening event rendering Vendor's compliance with cl 50.1 illegal, and suspending contractual obligation – Majority said Vendor’s purported termination repudiated contract –

HC unanimously allowed Vendor’s appeal – Said Vendor "ready, willing and able to complete" and not in default of contractual obligations when it served notice to complete on Purchaser – Appeal allowed.

Judicial Committee of the Privy Council

Conveyancing, rectification for mistake, evidence

Porter and anor v Stokes [2023] UKPC 11 (30 March 2023)

Unsuccessful appeal from Trinidad and Tobago CA – Concerned claim to rectify land deed of conveyance – In May 1982 S (now deceased) entered into agreement for sale of land to Mr and Mrs P – Agreement was for sale of two parcels: main parcel and second smaller strip between main parcel and road described as "right of way” – Executed a deed of conveyance on 18 August 1982 – However, deed only conveyed main parcel to P – Smaller strip not conveyed to P but deed purported to reserve right of way across strip in favour of S –

In 2006 P claimed deed contained mistake – Said true intentions of deed parties to convey both parcels, in accordance with May 1982 agreement – Sought rectification of deed for common mistake – S’s son (as personal representative of his late father's estate) denied mistake in deed – Said S never intended to sell smaller strip – Said that May 1982 agreement contained mistake, which had been corrected when deed made – HC dismissed Ps’ claim – Said S intended to convey main parcel and rejected Ps’ evidence on parties' intentions – Ps appealed –

CA said judge made several errors when considering evidence – Said judge focussed too much on oral evidence, given after a substantial passage of time, and paid insufficient heed to documentary evidence, in particular deed itself – Said able to look at matter afresh – Said sale agreement and deed taken as whole, including in particular reservation of right of way to S over strip, led to conclusion that parties' common intention to convey both parcels of land – Allowed Ps’ appeal –

S granted leave to appeal to PC on 21 February 2021 – PC dismissed appeal but based on slightly different reasoning from CA – PC analysis included review of law on rectification for mistake, importance of documentary evidence – Appeal dismissed.

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