Cyclone Gabrielle information and updates for the profession are available here.
The Independent Review Panel's report is now available. More information.
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Smith v Plowman and ors [2022] NZSC 109 (21 September 2022)
Unsuccessful leave application – Self-represented S sought fee waiver for HC appeal from DC – Deputy Registrar declined application – HC Judge declined review application and application for leave to CA- CA also refused leave – CA declined S’s application to recall leave decline – S applied to SC for leave to appeal recall decline –
SC said no jurisdiction to appeal this type of CA decision – No basis for treating as direct appeal from HC – Application dismissed.
Dunstan v Attorney-General [2022] NZSC 111 (21 September 2022)
Unsuccessful leave application – D filed an appeal in CA against HC striking out application for judicial review relating to DC rejecting application to commence private prosecution – CA Judge directed, inter alia, that respondents not required to appear in appeal – D sought leave to appeal against directions –
SC said even if it had jurisdiction regarding Judge’s directions, on which it had no comment, leave criteria not met – Proposed appeal related to D’s circumstances – Not matter of general or public importance – No risk of miscarriage of justice – Application dismissed.
Smith v Paros Property Trust Ltd [2022] NZCA 447
S sought to exercise a right under a lease to acquire the freehold of the property – PPT did not consider S had given valid notice to trigger the freeholding process under the lease – Position of S that PPT’s conduct amounted to a breach and/or repudiation of the lease and he cancelled the lease as entitled – PPT successful in High Court (HC) where held the lease remained on foot and S liable to pay rent – Whether S entitled to cancel, and if lease not cancelled whether full amount of rent claimed and awarded in HC recoverable (alleged defective rent review process) – HELD: clear that the lease remained on foot – Rent review process adopted by PPT did not comply with the process prescribed by the lease – Proceeding remitted back to HC to determine amount of rent payable – HC costs order set aside and to be redetermined as well.
Napier City Council v Local Government Mutual Funds Trustee Ltd [2022] NZCA 422
Respondent insurer insured appellant Council for breaches of professional duty but excluded cover for weathertightness defects – The Council was sued in 2013 by owners of an apartment complex and settled the claim without apportioning the global payment between weathertightness and other defects – The Council then unsuccessfully sued respondent – Whether generally covered liabilities arising from causes unrelated to weathertightness were excluded by a limiting provision in a policy of insurance which referred specifically to weathertightness only – HELD: exclusion contemplated that a claim might incorporate a number of Council liabilities – Claims were within the indemnity but excluded to the extent they were causally attributable to weathertightness defects – Remitted to HC to fix apportionment and amount of insurer’s liability.
Paul v Attorney-General [2022] NZCA 443
Following repeal of the Foreshore and Seabed Act 2004 by the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act), P filed an application “on behalf of all Māori” seeking an order recognising marine title in respect of the entire marine and coastal area of New Zealand – Apparent object was to provide Māori groups, who had not filed an application within the statutory deadline, the ability to do so in the future – Whether High Court Judge erred in striking out the application (original and amended) – HELD: relevant provisions of the Act were not susceptible to a purportedly tikanga-consistent interpretation that an application might be lodge on behalf of “all Māori” – Nationwide application plainly inconsistent with the scheme of the Act – Application was designed to circumvent the limitation period which Parliament had determined was appropriate for claims for recognition orders under the Act – Appeal dismissed.
R v Te Hana [2022] NZHC 2424 (21 September 2022) Eaton J
Sentencing – TH pleaded guilty to G’s manslaughter – TH punched then stomped on G’s head three times after G threatened to assault female visitor then directed racial slurs at TH -
Starting point eight and a half years' imprisonment - Nine month reduction reflecting victim’s conduct - Ten percent uplift reflected significant violent offending history - Twenty percent credit for guilty plea and 15 percent for personal matters detailed in cultural and psychiatric reports - End sentence five years, 11 months – 50 percent MPI 50 appropriate to denounce and deter.