New Zealand Law Society - Courts roundup 6 October - 12 October 2022

Courts roundup 6 October - 12 October 2022

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

court of appeal

New Zealand Court of Appeal

Epidemic notice, COVID-19, immediate modification order, collective bargaining

Idea Services Ltd v Attorney-General [2022] NZCA 470

Appeal concerning immediate modification order (IMO) modifying aspects of the collective bargaining provisions of the Employment Relations Act 2000 (ERA) – Clause 8 of IMO modified s53(3) ERA by providing a 12 month extension period did not start to run while the epidemic notice was in force – IMO made under s15(1) Epidemic Preparedness Act 2006 (EPA) – Validity of IMO – HELD: s53(3) ERA did not contain a requirement or restriction capable of being modified by an exercise of the power contained in s15 EPA – s53(3) merely extended the life of an existing agreement for a period of 12 months – Proposition the IMO only had a 3 month life rejected – High Court Judge’s focus on importance of the lack of any review provision, and any review, was correct – Appeal allowed – Declaration clause 8 of IMO was invalid because it modified a statutory provision that did not fall within the scope of s15 EPA.

Sentence appeal, cultivating cannabis

Anderson v R [2022] NZCA 472

Appeal against sentence of 3 years 1 month imprisonment for cultivating cannabis – A participated in the cultivation of cannabis at three addresses – Appeal on three grounds: (a) A had a limited role in two of the operations; (b) the cannabis was cultivated solely for medicinal use, with very low levels of the psychoactive ingredient (THC); and (c) A’s participation was not for monetary gain, but to obtain high quality medicinal cannabis for the purposes of pain relief and to help manage his mental health issues – A was diagnosed with ADHD, and oppositional defiant disorder but did not like the drug he was prescribed (carbamazepine) because of the its side effects – A also had pain from an enduring shoulder injury he sustained in a machinery accident – HELD: starting point of 3 years 4 months imprisonment was excessive – Category 1 of R v Terewi applied – 18 month starting point appropriate – Appeal allowed – Sentence replaced with 12 months imprisonment.

Sale of land, Māori freehold land, Māori Affairs Act 1953

Trustees of the Totoro Trust, Re [2022] NZCA 469

Appeal from Māori Land Court determination that certain land (Puketiti 2B2B1) was Māori freehold land and not General land – Trustees unable to sell Puketiti 2B2B1 when a Land Information New Zealand pre-validation report identified the land as potentially Māori freehold land – Previous transfer of the land in 1980 had been governed by the since repealed Māori Affairs Act 1953 – At issue was interpretation of provisions of the 1953 Act and their application to the 1980 memorandum of transfer – HELD: in 1980 only L’s interest in land was transferred, not the entire legal estate in Puketiti 2B2B1 – The transfer was erroneously registered as a transfer of the entire fee simple estate which was a breach of s224(1) and the transfer was therefore of no force or effect under the 1953 Act – Subsequent transfers were breaches of s233 and therefore of no force or effect – Appeal dismissed.

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