New Zealand Law Society - Courts roundup 6 June - 12 June 2024

Courts roundup 6 June - 12 June 2024

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

Coat of arms

New Zealand Supreme Court

Passport cancellation, terrorism, briefing paper standard

A (SC 70/2022) v Minister of Internal Affairs [2024] NZSC 63 (5 June 2024)

Open judgment of successful appeal from CA – Concerned lawfulness of Minister’s decision to cancel A’s passport on terrorism-related grounds – SC said cancelling citizen’s passport is serious intrusion on person’s rights – Open judgment addresses process Minister had to follow, as well as standard required for briefing paper from officials containing information Minister relied on coming to his decision to cancel A’s passport –

In May 2016, Te Pā Whakamarumaru | New Zealand Security Intelligence Service (NZSIS) produced briefing paper advising Minister A intended to travel to Syria to join Islamic State of Iraq and Levant (ISIL) for purpose of engaging in or facilitating terrorist act –

NZSIS provided Minister with briefing paper and short oral briefing NZSIS recommended Minister cancel A’s New Zealand passport for 12 months – He did so under cl 2(2) of sch 2  Passports Act 1992 (now repealed) –

HC dismissed A’s judicial review application – CA dismissed appeal – SC granted A leave to appeal on whether CA correct to dismiss appeal –

SC unanimously allowed appeal – First focused on what meant for someone to intend to “facilitate” terrorist act – Differing from HC and CA, SC said Minister lacked reasonable grounds necessary to believe A intended to facilitate terrorist act – Legislative history of cl 2(2) revealed Parliament did not intend to enact a travel ban – Therefore, needed to be evidence A intended not only to travel to ISIL’s caliphate but also to act in way that facilitated ISIL commission of terrorist act –

SC also disagreed with HC and CA approach regarding Bill of Rights Act 1990 – Said although Bill of Rights constrained outcome decisionmaker might reach, decision-maker had to also engage with whether decision’s limits on affected person’s rights reasonable – Here Minister and his advisers failed to do so –

Finally, SC analysed whether process Minister adopted unfair or unreasonable – SC agreed with parties, HC and CA, briefing paper had to be fair, accurate and adequate – However, said “fair, accurate and adequate” depended on context – Here, requirement more stringent because of significant consequences coming from cancelling person’s passport, person not informed of proposed decision before it is made and issues of fairness that arise when classified information is withheld from person – SC said NZSIS required to ensure information contained in briefing paper verified, comprehensive and included all material information, including information suggesting not necessary to cancel passport – Required NZSIS to carefully scrutinise briefing paper throughout preparation and after completion –

SC declared Minister’s decision to cancel A’s passport unlawful and invalid – A also awarded costs – Appeal allowed.

New Zealand Court of Appeal

Name suppression, connected person

Dallison v R [2023] NZCA 282

Unsuccessful appeal against refusal of continued name suppression and unsuccessful application for suppression by connected person – D pleaded guilty to attempted murder, wounding with intent to injure, and unlawful possession of pistols, restricted weapons and magazines – D sentenced to 6 years 10 months imprisonment – HC revoked DC suppression order prohibiting name, address, occupation, and any other details that might lead to the identification of D’s partner, Judge F, as a person connected to him – Judge F had been in a relationship with D since 2012 – Whether grounds for suppression made out – HELD: no new evidence relevant to D’s position since the matter was before the HC and no evidence he had been subject to any threat to his safety in prison – Threshold test for suppression in s202 Criminal Procedure Act 2011 not met for D – Redacted considerations meant that statutory threshold that publication would be likely to endanger the safety of Judge F not met – Judge F had nothing to do with D's offending, but strong public interest in all the surrounding circumstances – Discretionary considerations weighed heavily against suppression – Principle of open justice prevailed – Appeal dismissed and name suppression applications declined.

Sexual offending, retrial, second appeal - Login required

[C] v R [2024] NZCA 197

Cancelled ASP, equitable set-off

Liu v Hu [2024] NZCA 205

Successful appeal against granting of summary judgment – Parties entered into an agreement for the sale and purchase of a property – L failed to pay second tranche of deposit and before settlement date gave notice cancelling the agreement for breach of a condition relating to a resource consent, and misrepresentation relating to statement H’s agent had made – H successfully applied for summary judgment for the outstanding deposit of $128,000 – Whether L had an arguable defence – HELD: L raised a new ground of opposition on appeal, equitable set-off – Question of whether any of L’s defences amounted to an equitable set-off was purely a question of law (no further evidence needed) – L had an arguable right to an equitable set-off in respect of the deposit which constituted a defence to the claim for payment of the deposit – In the circumstances, unjust to allow judgment to be entered in H’s favour without resolving merits of L’s claim that was entitled to avoid or cancel the contract – Appeal allowed and HC summary judgment set aside.

Civil procedure, leases, rental clause

Whai Rawa Railway Lands LP v Body Corporate 201036 [2024] NZCA 207

Successful appeal against refusal to strike out statement of claim and dismissing application for summary judgment – WRR was ground lessor of a block of land – Respondent Body Corporate (BC) was current lessee of the land – BC filed proceeding seeking that HC should either set aside or vary a rental clause contained in the lease between the parties on the basis the clause was either harsh or unconscionable, or had been used in a harsh or unconscionable manner – Annual ground rent for first 15 years of term was a “peppercorn rental” but most recent rent review fixed ground rent at over $1M – Appeal turned on whether the HC had jurisdiction to grant the relief sought by the BC – No authority directly on point – No inherent or common law power vested in the HC to set aside or vary terms of a lease – Distinction between a stratum estate in freehold and a stratum estate in leasehold – HELD: nothing in the Unit Titles Act 2010 which suggested a dispute between a lessee and a lessor about the terms in a ground lease was a dispute in relation to a unit title development – HC did not have the jurisdiction to grant relief sought by the BC – Appeal allowed and proceeding struck out.

Extension of time, counsel error

ECTCH Ltd v Dennis & Leo Brady Construction Ltd [2024] NZCA 212

Successful application for extension of time under R43(2) Court of Appeal (Civil) Rules 2005 to file case on appeal – Construction contract litigation – Indemnity costs awarded after ECTCH unsuccessfully applied to set aside statutory demand – ECTCH filed appeal against costs decision within statutory timeframe but unable to meet timeframe to file case on appeal (even with initial extension) – Whether interests of justice required extension of time – HELD: delay was modest – Sole reason case on appeal not filed within time was counsel oversight or error (failure to appreciate need to hyperlink the case on appeal until a very late stage) – Arguably unfair for ECTCH to lose right of appeal due to oversight on part of its counsel – Further delay should not materially prejudice BCL – Overall interests of justice strongly favoured extension – Application granted.

High Court of Australia

Foreign state entity, immunity, company law

Greylag Goose Leasing 1410 Designated Activity Company and Anor v PT Garuda Indonesia Ltd [2024] HCA 21 (5 June 2024)

Unsuccessful appeal from New South Wales CA – Concerned immunity from Australian court jurisdiction conferred of foreign state separate entity under ss 9 and 22 Foreign States Immunities Act 1985 (Cth) (Immunities Act) – Question on appeal whether exception from immunity in s 14(3)(a), read with s 22 Immunities Act, applied to proceeding for winding up under Pt 5.7 Corporations Act 2001 (Cth) (Corporations Act) of foreign state separate entity body corporate registered as foreign company under Corporations Act – Section 14(3)(a) Immunities Act provided "[a] foreign State is not immune in a proceeding in so far as the proceeding concerns ... bankruptcy, insolvency or the winding up of a body corporate" – HC said through s 22 Immunities Act, s 14(3)(a) applied "in relation to a separate entity of a foreign State" as provision applied "in relation to the foreign State" –

PT Garuda Indonesia Ltd (Garuda) incorporated in Republic of Indonesia and Republic’s national airline – Garuda registered as foreign company under Corporations – GG companies incorporated in Republic of Ireland, leased aircraft to Garuda – GG made demands on Garuda for payment of amounts Garuda said to owe GG – In New South Wales SC, GG sought orders Garuda be wound up "on the basis that [Garuda] is unable to pay its debts or otherwise that it is just and equitable to do so" –

Garuda sought order process be set aside because SC lacked jurisdiction, citing ss 9 and 22 Immunities Act – Common ground Garuda agency or instrumentality of Republic of Indonesia and, on that basis, separate entity within Immunities Act – Hence, Garuda entitled to immunity under ss 9 and 22 in winding up proceeding unless exception from immunity applied – GG relied on exception in s 14(3)(a) read with s 22 Immunities Act – Primary judge rejected GG’s argument and set aside process – CA upheld primary judge on appeal – GG appealed to HC –

HC majority said, as s 14(3)(a) applied through operation of s 22 to foreign state separate entity separate entity, separate entity (like foreign State itself) is object of exception from immunity; "body corporate" entity other than separate entity (just as it is entity other than foreign State itself); and winding up of other entity is subject-matter of exception – Accordingly, exception applied to proceeding under Pt 5.7 Corporations Act only if and in so far as proceeding concerns winding up of body corporate that is not same body as separate entity – Appeal dismissed.

Supreme Court of Canada

“Secret trial”, police informer

Canadian Broadcasting Corporation v. Named Person [2024] SCC 21 (7 June 2024)

Partly successful appeal from Quebec CA – NP, police informer, charged with criminal offences – Brought motion to stay proceedings partly based on abusive state conduct regarding charge laying – Because NP’s informer status at centre of relevant factual context and parties’ arguments, judge dealing with motion ordered it be heard in camera – No notice given to media, since judge believed revealing anything about motion, including its existence, would be likely to compromise NP’s anonymity – Motion, content, exhibits and transcripts submitted to judge remained confidential and not in any court record – Motion dismissed in written judgment, which had no file number and could not be publicly consulted –

NP subsequently convicted and appealed conviction – Appeal heard in camera and no notice given to media – CA allowed appeal, stayed conviction and entered stay of criminal proceedings on state abuse of process ground – CA decided to open record at court office, with sealing order, and to make public version of decision in which certain information redacted – In open decision, CA denounced “secret trial” which alarmed public and media – Also expressed disagreement with scope of confidentiality measures put in place for NP’s trial –

Media organisations, Quebec Attorney General and Chief Judge of Court of Québec asked CA to review confidentiality orders – In second decision, CA upheld sealing of all information tending to identify NP – Also refused to partially unseal appeal record by redacting same information as in public version of decision – Media organisations and Attorney General of Quebec appealed second decision to SC –

SC unanimously partly allowed appeal – Confirmed no secret trial here – Said “the very concept of ‘secret trial’ does not exist in Canada. . . . [T]he cardinal principle of court openness may be tempered where the circumstances of a case so require – Various confidentiality orders may be made . . ., up to and including an order that all hearings be held in camera . . . But it is well established that ‘secret trials’, those that leave no trace, are not part of the range of possible measures” –

SC said magnitude of controversy after CA’s first decision released could have been limited if court had not used expression “secret trial” to describe what were actually in camera hearings held in proceeding that began and initially moved forward publicly –

SC said CA correct to dismiss motions to disclose information kept confidential up to that time but erred in upholding order entire appeal record be sealed – Case remanded to CA to make public redacted trial judgment version included in appeal record, after consulting parties concerned – Appeal partly allowed.