New Zealand Law Society - Courts roundup 4 September - 10 September 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Te Hivaka [2025] NZCA 451
Unsuccessful appeal by H against conviction for murder as a secondary party, on a common purpose basis under s66(2) Crimes Act 1961 – Whether jury had to be satisfied H knew principal offender had taken a weapon (the gun that fired the fatal shot) when they went to meet with victim – H had previously bought drugs from the victim, who was a low-level drug dealer - Before the shooting, H had initiated contact for the purpose of meeting victim to buy drugs - In reality, H and co-offender had formed plan to rob him –
Question trial had not referred to or required jury to be sure that H knew about the weapon – That was unsurprising and could not give rise to a miscarriage; knowledge of a weapon was not an essential element of common purpose liability for murder and the question trail was a jury aid, not a substitute for judicial directions – The Judge’s directions must be seen (and would have been understood by the jury) in light of the Crown and defence cases, both of which stressed the significance of H’s knowledge about the gun – Judge was not required specifically to direct the jury that H needed to know the gun was loaded – Appeal dismissed.
[N] v R [2025] NZCA 452
McKelvy v United States of America [2025] NZCA 436
Unsuccessful application by M for leave to bring a second appeal against extradition eligibility decision declined - Unsuccessful appeal against dismissal of judicial review application - M had been indicted in USA on drug conspiracy charge - M arrested by NZ Police – USA requested his surrender - HC determined M eligible for surrender -
HC had not erred in interpreting meaning of “import” in Misuse of Drugs Act 1975 - Case law established meaning of “import” included drugs in transit - Parliament could not have intended to leave gap in legislation which depended on assessment of a drug dealer’s intended target market – Evidence showed there was clearly a reasonably available inference M knew drugs would be imported into USA en route to NZ – HC had not erred in dismissing judicial review claim - Judge’s approach in dismissing the claim on basis it was duplicative of the appeal was in accordance with approach outlined by SC in Ortmann v United States of America.
New Zealand Independent Community Pharmacy Group v Health New Zealand [2025] NZCA 443
Unsuccessful appeal by ICPG (group of community pharmacies) against HC decision dismissing judicial review of two DHB decisions to grant Independent Community Pharmacy Service Agreements (ICPSAs) to two pharmacies to be operated by the second respondent - Pharmacies were to be located in Countdown supermarkets - Each would waive the $5 co-payment fee ordinarily paid by patients when filling prescriptions – HC held ICPG’s claim had to fail because it had not alleged fraud, corruption, bad faith or analogous circumstances - ICPG’s grounds of review (irrationality and inconsistency with Te Tiriti o Waitangi | the Treaty of Waitangi) were not made out -
HC erred in holding scope of review was limited to bad faith, fraud, corruption or other analogous circumstances - Statutory and factual context of decisions critical – HC had not erred in dismissing judicial review when DHBs had failed to inform themselves properly of the risks to health equity posed by their decisions - Those involved in the decisions could call on their own expertise, experience and assessment models to reach their decisions - Both DHBs had policies, processes and officials with necessary expertise to adequately consider implications for health equity of their decisions – Appeal dismissed.
Wellington Civic Trust v Wellington City Council [2025] NZHC 2522 (1 September 2025) Grice J
Unsuccessful application for judicial review of Wellington City Council (Council) decision to demolish City to Sea Bridge (the Bridge) – Alleged failure to identify and assess all reasonably practicable options for strengthening the Bridge, mistake of law/fact in the classification of the Bridge’s importance level for seismic assessment purposes, and failure to comply with the principles of consultation under the Local Government Act 2002 (LGA) –
Debate on whether Council too conservative in its approach to seismic assessment and risk was wider issue unsuitable for challenge by way of judicial review – Council decision-making committee had the reasonably practicable options before it, as well as adequate information to enable it to understand the issues and risks involved and the factors was required to take into account in making the decision – Option of delaying decision to gather further information and development of other options considered and rejected – No mistake of law – Importance level of the Bridge was matter of professional opinion on which experts differed – No mistake of fact in relation to importance level of Bridge – Public consultation met the statutory requirements under the LGA – Application dismissed.
Re Taueki (Ngāti Tamarangi) [2025] NZHC 2554 (4 September 2025) Grice J
Applications for protected customary rights (PCRs) under the Marine and Coastal Area (Takutai Moana) Act 2011 in the common marine and coastal area, or the takutai moana – Customary marine title subject of a separate judgment – Hearing area ran from the northern bank of the Rangitīkei River to Whareroa (north of Paekākāriki), often referred to as the Kapiti Coast, as well as covering Kapiti Island and its islets –
Evidence supported the grant of PCRs in relation to certain applications and activities – Before PCRs granted, locations and details in some cases needed to be identified with further specificity - Imprecision in many of the locations of the activities, resource gathering, and further mapping and checking to take place before final orders made – If an activity not in the takutai moana, a PCR could not issue.
Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 (3 September 2025)
Unsuccessful application for writ of certiorari quashing a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to revoke the mandatory cancellation of plaintiff’s Temporary Protection (Class XD) (subclass 785) visa (TVP) under s501CA(4) Migration Act 1958 (Cth) and a writ of mandamus requiring the Minister to make a decision under s501CA(4) whether to revoke the cancellation of the plaintiff's TPV according to law – Plaintiff a 65 year old citizen of Iraq who arrived in Australia in 2012 – Post-traumatic stress disorder diagnosed – Protection finding made – 2022 plaintiff convicted of the offence of specially aggravated detaining of a person for advantage and sentenced to 5 years 9 months imprisonment – TVP mandatorily cancelled under s501(3A) – Plaintiff incorrectly believed cancellation of TVP revoked when released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") – BVR ceased pursuant to s76AAA when Republic of Nauru granted plaintiff permission to enter and remain –
Non-revocation decision not affected by jurisdictional error – Delegate’s use of legal advice plaintiff provided to Department neither unreasonable nor irrational in the circumstances – Application dismissed.
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 (3 September 2025)
Appeal on question of statutory construction concerning the temporal operation of s14(1) Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act) – Whether s14(1) rendered liable to forfeiture, upon importation into Australia after the commencement of the Act, a protected object of a foreign country unlawfully exported from that foreign country before the commencement of the Act – Artefact unlawfully exported from Bolivia before commencement of Act – Appellant purchaser commenced action for recovery of artefact under s37 – Act enacted to bring Australia into conformity with obligations of State Party to UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) prior to Australia acceding to Convention –
In using the present perfect tense, s14(1)(a) and s14(2)(a) each expressed criterion of operation that an object which was at the time of importation into Australia a protected object of a foreign country was also an object that was previously exported from that foreign country – Use of the present perfect tense indicated no further temporal limitation as to when the object was exported from that foreign country – Appeal dismissed with costs.
La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 (3 September 2025)
Appeal concerning scope and operation of s36 Aboriginal Land Rights Act 1983 (NSW) (ALR Act) – Purposes of the ALR Act expressed to include "to provide land rights" for Aboriginal persons and "to vest land" in Aboriginal Land Councils – Whether lands vested in the Crown in right of New South Wales are "used" within the meaning of s36(1)(b) merely by reason of those lands being the subject of an existing lease from the Crown – If so, then the prior grant by the Crown Lands Minister of a lease from the Crown under an Act sufficient to prevent lands vested in the Crown from being claimable Crown lands, irrespective of the purpose of the lease and irrespective of whether the purpose of the lease is being fulfilled –
Lands vested in the Crown not "used" within the meaning of s36(1)(b) merely by reason of the existence of an unexpired lease of those lands from the Crown – "Use" of "lands" vested in the Crown in right of New South Wales to which s36(1)(b) referred limited to physical deployment of physical lands – Appeal allowed.
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