New Zealand Law Society - Courts roundup 6 July - 12 July 2023

Courts roundup 6 July - 12 July 2023

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

court of appeal

New Zealand Supreme Court


Roper v Taylor and anor [2023] NZSC 79 (3 July 2023)

Unsuccessful costs application – T sought compensation for post-traumatic stress disorder caused by R sexually assaulting and falsely imprisoning her in late 1980s while both were employed by Royal New Zealand Air Force (RNZAF) –

SC allowed R’s and Attorney-General’s appeal, ruling T could not sue for compensatory damages for false imprisonment and (tentatively) that s 21B Accident Compensation Act 2001 would, in any event, be engaged –

R sought costs, saying they should follow event in normal manner – T said any entitlement R might have to costs after succeeding on appeal should be offset against exemplary damages awarded against him – T said further that should be entitled to costs on 3B basis in HC and CA –

SC made no costs order – Said while compensatory damages not available, exemplary damages claim still to be decided – Matter ongoing and there had been HC findings of serious misconduct by R – No SC costs order, courts below would deal with costs in those courts.

Trusts, relationship property

Cooper v Pinney [2023] NZSC 80 (2 July 2023)

Successful leave application – Approved question whether CA correct to dismiss C’s appeal essentially over control of trust and whether trust property relationship property – Approved question allowed C to pursue all arguments foreshadowed in submissions in support of leave application – P could also pursue all arguments foreshadowed in submissions in opposition – P directed to serve copy of judgment on trustees of MRW Pinney Family Trust – Application granted.

Self-represented litigant, Family Court issues

D (SC 42/2023) v Family Court at Manukau and anor [2023] NZSC 81 (4 July 2023)

Unsuccessful leave application – Self-represented D applied for leave to appeal from CA decision declining to grant extension of time to appeal from HC judgment dismissing claim for judicial review –

Context was ongoing Family Court proceedings between D and second respondent – Dismissing judicial review application, HC rejected D’s allegations of bias against Family Court Judge – CA said delay (more than a year from appeal period expiry) substantial and not adequately explained –

SC said CA applied settled principles – D did not challenge those principles – Rather, case that CA misapplied them – No question of general or public importance arose – Also, nothing D raised gave rise to appearance of miscarriage of justice – Application dismissed.

Time extension leapfrog appeal

Estate of Ruru and anor v Attorney-General and ors [2023] NZSC 82 (5 July 2023)

Unsuccessful time extension application – R and H applied for leave to appeal out of time directly to SC from HC decision – Also filed appeal in CA –

SC satisfied leave criteria not met – In circumstances is no point in granting time extension – Application dismissed.

Self-represented litigant, judicial review

D (SC 41/2023) v Auckland District Court and anor [2023] NZSC 83 (7 July 2023)

Unsuccessful leave application – Self-represented D applied for leave to appeal CA dismissing her appeal from HC decision and minute various applications connected to judicial review of DC decision –

SC said proposed appeal grounds related only to particular circumstances – No matters of general or public importance arose – Further, nothing D raised suggests CA decision might have been wrong – Nothing suggests that substantial miscarriage of justice might have occurred – Application dismissed.

New Zealand Court of Appeal

Name suppression

H (CA 34-2023) v R [2023] NZCA 240

Unsuccessful appeal against refusal of name suppression – Arson – H sentenced to 2 years 8 months imprisonment – H acted as an advocate for the tenant of a sushi shop in Taupō and the tenant’s elderly parents, and subsequently set the shop on fire – Total estimated cost of damage to the shop and adjoining premises was $2.7M – Psychiatric and psychological reports (expert reports) – HELD: publication of H’s name would not cause extreme hardship to him – No updated medical opinion assessing H’s current mental state or current risk – H now released from prison on parole, and had a wide range of supports in the community – H had failed to establish there was a current appreciable risk of suicide satisfying the extreme hardship threshold in s200(2)(a) or the endangerment of his safety threshold in s200(2)(e) Criminal Procedure Act 2011 – Appeal dismissed.

Criminal procedure, fraud

Chand v R [2023] NZCA 276

Unsuccessful appeals against convictions and sentences – Fraud charges arose out of applications for grants for gaming machine proceeds made by four incorporated societies associated with the appellants – In the interests of justice to hear PC’s appeal despite significant delay in advancing the appeal (filed in 2019) (Court declined to dismiss appeal for want of prosecution) – Applications for leave to adduce further evidence declined – HELD: was for the jury to assess the reliability of BK’s statements to the DIA as tested through his evidence at trial – Reasonably open to the jury to find PC knowingly assisted RC to falsely represent a grant had been used in a particular way – No error in Judge’s consideration of application to discharge PC without conviction – Verdicts were consistent with the jury having understood the distinction between taking steps in connection with grant money on the one hand and the accounting for it and control of it on the other – There was evidence from which a jury could reasonably find that RK had control over the funds – All conviction and sentence appeals dismissed.

Conviction appeals, trial counsel error

Karaka v R [2023] NZCA 283

Successful appeal against convictions for aggravated robbery and receiving entered in 2018 – Appeal on grounds of trial counsel (G) error – G now deceased – Whether miscarriage of justice established – Crown accepted the closing address delivered by G did not meet the minimum standard required – HELD: reasons for delay satisfactorily explained (K a young man, unfamiliar with the criminal justice system, at least initially, and his primary focus was being released from prison, on parole) – Appeal had obvious merit – K’s case was not properly put to the jury, K did not have a fair trial, and a miscarriage of justice had resulted – Finely balanced but conclusion that not appropriate to order a retrial – Application for extension of time to appeal against conviction granted – Appeal allowed – Convictions set aside and no retrial.

Real estate agents, contract cancellation 

Goldline Properties Ltd v Marsh [2023] NZCA 285

Circumstances in which a vendor may cancel a contract to sell property when the real estate agent acting for the vendor is to acquire an interest in the property (via joint venture in this case) – Section 134 Real Estate Agents Act 2008 applied – Requirements of s134(3) not met – GPL purported to cancel the contracts pursuant to s134(4) and M responded by lodging caveats – Sole issue for determination whether the HC was correct in finding that a contract was “made” or “brought about” for the purposes of s134(4) only when the contract was entered into – HELD: not considered that the overall scheme of s134, or its purpose, limited the right of cancellation (or the prohibition on recovery of commission) to circumstances in which a real estate agent either acquired or intended to acquire an interest in the land or business concerned at the time the contract was entered into – Appeal allowed – Caveats deemed to have lapsed.

Preventive detention, ESO

Moore v R [2023] NZCA 286

Successful appeal against sentence of preventive detention – Doing an indecent act on a girl under 12 – Conviction following jury trial and transferred to HC for sentence – HC considered that under ordinary principles, a sentence of 26 months imprisonment would have been justified, but in the circumstances sentence imposed was preventive detention with minimum period of imprisonment (MPI) of 5 years – Whether Judge erred in concluding M posed a significant and ongoing risk to the community – HELD: pattern of offending was established – Index offending and prior offending were of serious concern – Expert evidence that without appropriate oversight and support, there was a high risk M would commit serious offences in the future – Court satisfied that if M released without supervision he would be likely to commit another qualifying sexual offence if released at the expiry of the finite sentence of 26 months imprisonment, but reality was that when M was released from prison he would still be subject to the ESO – Finely balanced – Preventive detention not the least restrictive outcome – Appeal allowed – Sentence of preventive detention quashed and replaced by sentence of 26 months imprisonment.

New Zealand High Court

Financial Markets Authority, Stop order

Validus FZCO v Financial Markets Authority [2023] NZHC 1701 (4 July 2023) Jagose J

Unsuccessful appeal – V appealed under s 532(g) Financial Markets Conduct Act 2013 against Financial Markets Authority's (FMA) issuing stop order against V prohibiting it from offering financial products, as wrong in law – V claimed denied natural justice as order grounds and terms differed from that notified prior, FMA could not make order where financial products did not yet exist, and FMA could not make order where not apparently satisfied Act contravention would occur –

HC dismissed all appeal grounds – First, said natural justice shaped by prior and post-order statutory notice requirements, which only required FMA to provide notice and receive comment on prospective exercise of power and reasons for, not consequences – Said afforded to appellant – On remaining grounds HC said FMA had not necessarily accepted there were no financial products or V would not contravene Act – In any event not requirements to issue order under Act's correct construction – Appeal dismissed, suppression orders ended.

United Kingdom Supreme Court

Police conduct, investigation standard

R (on the application of Officer W80) (Appellant) v Director General of the Independent Office for Police Conduct and ors [2023] UKSC 24 (5 July 2023)

Unsuccessful appeal from CA – W80, armed police officer, shot B dead in police operation – B implicated in plot to snatch two individuals from custody – Police intelligence indicated plotters would possess firearms – W80's account was during intervention, B’s hands moved quickly to shoulder bag on his chest – Fearing for his life and those of his colleagues, W80 fired one shot – No firearm found in bag, but imitation firearm in car’s rear –

Independent Office for Police Conduct (IOPC) predecessor, Independent Police Complaints Commission (IPCC) investigated – IPCC concluded W80's belief in imminent danger honestly held, but unreasonable – W80 had case to answer for gross misconduct based on civil law test that mistake of fact could only be relied upon if reasonable mistake – Sent report and recommendation to Metropolitan Police Service (MPS), appropriate authority for misconduct proceedings against W80 – MPS view was IPCC incorrect as matter of law applying civil law test as opposed to criminal law test of self-defence (which looked to whether belief honestly held) – IIPCC became IOPC in January 2018 – After MPS indicated it would not follow (now) IOPC's recommendation to bring misconduct proceedings against W80, IOPC directed MPS to do so – That decision challenged in this judicial review –

Divisional Court said criminal law test applied – CA said neither criminal nor civil law test applied but tribunal in police disciplinary proceedings should simply apply test contained in wording of use of force standard in Schedule 2 to Police (Conduct) Regulations 2012 (2012 Regulations), whether force used necessary, proportionate and reasonable in all circumstances –

Officer W80 appealed against CA decision saying criminal law test applied in police disciplinary proceedings – Police Commissioner agreed – Issue before SC was whether open to reasonable disciplinary panel to find misconduct if officer's honest, but mistaken, belief that his life was threatened was found to be unreasonable –

SC unanimously dismissed appeal, saying test to be applied in disciplinary proceedings relating to use of force by police officer in self-defence was civil law test – IOPC applied correct test when directing MPS to bring disciplinary proceedings against W80 – Appeal dismissed.