New Zealand Law Society - Courts roundup 8 December - 14 December 2022

Courts roundup 8 December - 14 December 2022

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

Auckland High Court 2

New Zealand Supreme Court

Waitangi Tribunal, resumption powers, standing

Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Ltd and ors [2022] NZSC 142 (7 December 2022)

Partly successful appeal direct from HC - In 2010 Waitangi Tribunal released report on historical claims of Ngāti Kahungunu and Rangitāne of the Wairarapa region - Tribunal largely upheld claims -  Despite this, two entities affiliated to Ngāti Kahungunu ki Wairarapa applied to Tribunal for compulsory resumption of certain land in which they claimed Treaty interest - Wairarapa Moana ki Pouākani Inc (Wairarapa Moana) comprised descendants of southern Wairarapa hapū communities - Early 20th century, hapū agreed with Crown to exchange customary rights in Lakes Wairarapa and Ōnoke for Crown land at Pouākani (Pouākani land) - Land in traditional rohe of Raukawa and Ngāti Tūwharetoa - In 1949 Crown compulsorily acquired 787 acres of that land as site for Maraetai Power Station - Mercury NZ Ltd owned and operated station –

Wairarapa Moana applied to Waitangi Tribunal for resumption of 787 acres - Mercury applied to Tribunal for leave to adduce evidence and make submissions - Tribunal said s 8C Treaty of Waitangi Act 1975 precluded it from hearing from Mercury –

Tribunal delivered “preliminary determinations” on resumption applications on 24 March 2020; that is, determinations that were to feed into continuing iterative process to finally resolve applications –

In HC Mercury sought judicial review of Tribunal determination that it lacked standing - Raukawa (supported by Ngāti Tūwharetoa) and Crown each sought judicial review of Tribunal’s preliminary determinations on resumption and related forest compensation - HC said : (a) Tribunal misinterpreted resumption powers - Could not use resumable land as remedial “land bank” for unrelated Treaty breaches (b) Tribunal breached tikanga and Treaty principles when determining Pouākani land could be resumed to iwi without mana whenua as would conflict with rights of iwi that had mana whenua (c) When Tribunal set trigger date for liability to pay interest on compensation for resumed Crown forest land, did not take into account all relevant matters and took into account irrelevant matters (d) Tribunal correct to determine Mercury had no standing in Pouākani resumption applications –

SC granted Wairarapa Moana and Ngāi Tūmapūhia-ā-Rangi leave to bring direct appeals - Court addressed five issues: (a) Did Tribunal determination (albeit preliminary) that Wairarapa Moana not suitable recipient for resumption of Pouākani land, render appeal moot? (b) Did fact that Ngāti Kahungunu ki Wairarapa lacked mana whenua regarding Pouākani land, count decisively against resumption in favour of any Ngāti Kahungunu interests, however configured? (c) What historical Treaty prejudice relevant to exercise of Tribunal’s resumption jurisdiction? (d) Did Tribunal take into account all relevant matters when it determined (for the purposes of the Crown’s interest liability) that post-1992 delay in resolving the Ngāumu forest claim entirely attributable to Crown? (e) Did  Tribunal correctly apply s 8C Treaty of Waitangi Act when refused to hear from Mercury?

SC majority allowed Wairarapa Moana’s appeal in part - Court unanimously dismissed Ngāi Tūmapūhia-ā-Rangi’s appeal and Mercury’s cross-appeal.

Court unanimously agreed Pouākani applications not moot - On mana whenua issue majority allowed appeal in part – Said HC wrong to say granting resumption to iwi without mana whenua over land inconsistent with tikanga and Treaty principles – Here no final determination on whether mana whenua should prevail over other tikanga considerations – Regarding Crown interest liability, SC unanimously agreed with HC - Tribunal’s approach to amount calculation in error – On Mercury’s standing, SC agreed unanimously with HC - Mercury did not have standing - Section 8C Treaty of Waitangi Act, considered in light of legislative history, Act purpose, and preamble, Treaty of Waitangi (State Enterprises) Act 1988, clearly precluded entitlement to be heard – appeal partly allowed.

Methamphetamine, sentencing

Berkland v R [2022] NZSC 143 (7 December 2022) 

Two successful appeals from CA heard together – B and H sentenced for various offences related to involvement in separate large-scale methamphetamine operations in New Zealand - Appealed against sentences to SC - Appeals heard together because raised similar issues over CA decision which set out new sentencing guidelines for methamphetamine-related offending – SC said issues before it confined to how previous case should be interpreted and implemented – SC unanimously allowed appeals against sentence – Appeals allowed.

New Zealand Court of Appeal

Trustee appointment, majority verdict

Legler v Formannoij [2022] NZCA 607

As sole remaining trustee of the K Trust, M appointed K Ltd as sole trustee in her place – M was sole director of K Ltd and owned all the shares in K Ltd – K Ltd removed appellants as beneficiaries of the K Trust – Appellants’ unsuccessfully challenged appointment of K Ltd as sole trustee in the High Court– Whether M’s appointment of K Ltd as trustee was void as a fraud on her power of appointment, being for the purpose of evading limits on self-dealing in the K Trust trust deed and to benefit herself – Wong v Burt test – HELD: No error in conclusion appellants failed to demonstrate that in exercising the power to appoint K Ltd M was motivated by an improper purpose – M obtained and acted on legal advice – Appeal dismissed (Cull J dissenting).

Criminal procedure, mental impairment - Login Required

Hanara v R [2022] NZCA 608 

Aged 14 years old, H was convicted of murder and sentenced to life imprisonment (10 year minimum period of imprisonment) – Jury in H’s trial were not made aware of the nature of his mental impairment and the likely effects of that impairment when he gave evidence – H provided a very different account of what of what had occurred in open court from his brief of evidence – Whether miscarriage of justice occurred – H’s cognitive deficiencies included foetal alcohol spectrum disorder (FASD), attention deficit hyperactivity disorder (ADHD), intellectual disability (IQ of 62), and a severe language disorder – HELD: Combined effect of the jury not being told about H’s cognitive difficulties and incomplete explanation about why H needed a communication assistant meant jury deprived of all the evidence needed to properly and fairly assess issue of intent – Appeal allowed, conviction quashed and retrial ordered.

Criminal procedure, sentencing discounts

Salt v R [2022] NZCA 611

S sentenced to 8 years 2 months imprisonment on charges of kidnapping and wounding with intent to cause grievous bodily harm (GBH) – Only later after speaking to other prisoners, that M learnt a cultural report and his age at the time (21 years old) might enable sentence to be discounted further – Sentencing judge gave S a discount of 9 months (6.8 percent) for a combination of youth, family circumstances, and remorse – Whether there was a material error in sentence imposed – HELD: s27 Sentencing Act 2002 report not admitted as fresh evidence on appeal as substantial information about S’s background and family circumstances available to sentencing Judge in pre-sentence report and letter from S’s mother – Preferable for a discrete discount for youth to have been separately identified and 10 percent appropriate – Appropriate discount for family circumstances, including S’s addiction to methamphetamine, would be 10 percent – Separate discount of 5 percent for remorse appropriate – Added to 20 percent discount for guilty plea, appropriate sentence 6 years imprisonment – Appeal allowed.

Animals, “owner” of dog

Low v New Plymouth District Council [2022] NZCA 612

L operated a dog day care service and was walking five dogs when three jumped up at a horse being ridden along the beach, biting the horse’s legs and body – Two of the dogs were owned by L’s clients – Council laid various charges against L being the owner of a dog – District Court dismissed the charges on basis L did not come within the definition of “owner” in relation to the dogs, but High Court allowed appeal by the Council – At issue was whether a person in possession of a dog with the consent of its owner, such as a dog walker, was treated as an “owner” of the dog under the Dog Control Act 1996 – Conflicting authorities – HELD: On a careful analysis, the text of the definition of “owner” in s2, only one reading – Imposing liability on the person who had the dog in their possession, even for a period of less than 72 hours, served the legislative scheme of strict liability for breach of the obligations imposed by the Act – L came within the definition of “owner” – Appeal dismissed.

Criminal procedure, dangerous driving

McCoy v Police [2022] NZCA 617

Application for leave to bring second appeal against conviction for dangerous driving – Leave to appeal sought on basis Judge erred by relying on irrelevant evidence of M’s aggressive state of mind in assessing whether his driving was dangerous, resulting in a miscarriage of justice – Genuinely arguable question of law of general or public importance – Statutory test for dangerous driving whether a defendant drove a motor vehicle at a speed or a manner which, having regard to all the circumstances, was or might be dangerous to the public or to a person – HELD: Arguable that the courts below erred in taking into account M’s anger and aggression – Seriously arguable that a defendant’s general state of mind not relevant to whether their driving, assessed objectively, was dangerous – Application for leave granted.

Sentence, “third strike” offence

Love v R [2022] NZCA 614

L sentenced to 10 years imprisonment for robbery which was a “third strike” offence under the now repealed “three strikes” sentencing regime – L went to a café and demanded money from the till, taking around $380 – Sentencing Judge took view he had no discretion to impose less than the maximum sentence, otherwise a sentence of 18 months imprisonment would have been imposed – Subsequently Supreme Court held in Fitzgerald v R that where imposing the maximum sentence under the three strikes regime would breach the right not to be subjected to disproportionately severe punishment, the offender should be sentenced in accordance with ordinary principles – HELD: 10 year sentence was grossly disproportionate – L was a recidivist offender, but his offending was generally low level, and his robberies had not involved weapons or any physical harm – Appeal allowed, sentence quashed and sentence of 18 months imprisonment substituted.

Sentence, “third strike” offence

Sheers v R [2022] NZCA 618

S sentenced to 14 years imprisonment in 2020 for aggravated robbery armed with an offensive weapon which was a “third strike” offence under the now repealed “three strikes” sentencing regime – S went to a bakery, pointed a knife at one of the two victims demanding cash from the register, and took $785 – End of sentence of around 2.5 to 3 years was otherwise considered appropriate – S had a foetal alcohol spectrum disorder (FASD) diagnosis – Effect of Fitzgerald v R – HELD: Disproportionately severe implications of S’s sentence were compounded by the fact of his FASD diagnosis – 11 year differential met high Fitzgerald threshold – Appeal allowed, sentence quashed, and sentence of 3 years imprisonment substituted.

New Zealand High Court

Care of Children Act, urgent application

Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283 (7 December Gault J)

Successful urgent application under s 31 Care of Children Act 2004 to place child under Court’s guardianship - Purpose surgery and related medical issues including administration of blood and blood products - Te Whatu Ora, Health New Zealand, Te Toka Tumai sought to have medical specialists appointed Court agents for consenting to surgery and related medical issues - Parents otherwise appointed general Court agents - Parents opposed application – Accepted need for surgery but did not consent to blood transfusion - Concerns blood would contain COVID-19 mRNA vaccine with spike proteins not safe for baby - Overriding issue whether proposed treatment in baby's best interests - Parents sought to join NZ Blood and Organ Service (NZBS) and sought interim order against it – HC said two interrelated factual issues underpinned dispute, whether: (1) clinicians' proposed use of NZBS blood products safe; and (2) parents' proposed use of directed blood safe and viable alternative –

Parents' application to join NZBS declined - Substantive orders: (1) placing baby under Court guardianship from order date until surgery and post-operative recovery completed to address obstruction to outflow tract of right ventricle and at latest until 31 January 2023;
(2) appointing named doctors Court agents for purpose of consenting to surgery to address obstruction and all medical issues related to surgery, including administration of blood and blood products to baby  where administration of blood and blood products accorded with good clinical practice and in best interests of baby as doctors assessed; (3) other than matters in (2), appointing baby's parents general Court agents; (4) directing doctors to keep parents informed at all reasonable times of nature and progress of baby’s condition and treatment; and (5) reserving leave to parties to apply to Court for orders review.

Minute relating to urgent application

Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283 (8 December 2022, Gault J Minute)

Minute followed memorandum from parent’s counsel indicating, among other things, parents had prevented steps to prepare baby for surgery – HC said position parents adopted meant ancillary orders required.

Successful judicial review against finding of unsatisfactory conduct

G N Gallaway v National Standards Committee and New Zealand Law Society Te Kāhui Ture o Aotearoa [2020] NZHC 3384

Lawyer Garth Gallaway successfully judicially reviewed the decision of a Standards Committee that he had engaged in unsatisfactory conduct in the context of professional indemnity proceedings.  In summary, the Court held that the Committee’s decision involved a material error of law as it failed to recognise that Mr Gallaway had a dual retainer (as opposed to just acting for the insured).  The Court also found that the Committee had breached the requirement for natural justice by failing to give Mr Gallaway fair notice of the contention that he was appointed by the insurer to act for the insured, but not the insurer.  The Court quashed the decision of the Committee.


“P” was a registered valuer facing disciplinary charges before the Valuers Registration Board.  P held professional indemnity insurance with a large insurer.  Mr Gallaway was appointed by the insurer to represent P in defence of the charges. 

At one point in the proceeding, P considered making an application for judicial review of a procedural decision of the Board.  The insurer asked Mr Gallaway to provide advice on whether the policy covered judicial review proceedings.  Before Mr Gallaway provided the advice, however, the insurer decided such a collateral proceeding was outside the scope of the insurance policy.  Mr Gallaway reviewed a draft of the email and provided editorial amendments before it was sent to P.  

Later in the proceeding, Mr Gallaway advised P and the insurer that the evidence did not support P’s case, and that the Board would find against him.  P disagreed.  The insurer decided it would not fund a defended hearing but would pay for costs of negotiation and a penalty hearing.  Mr Gallaway communicated the insurer’s position to P on the day before P was due to file evidence.  P instructed Mr Gallaway to negotiate a settlement, but also indicated he felt he was being forced to plead guilty because of the insurer’s decision.

Following this development, Mr Gallaway required P to obtain independent legal advice.  P confirmed he had done so, and then reiterated the instruction to negotiate a settlement.  P entered guilty pleas and faced a fine and costs.  P then complained to the Law Society about the Mr Gallaway’s conduct.  

The Standards Committee decision

The Standards Committee made a finding of unsatisfactory conduct against Mr Gallaway.  The Standards Committee considered that the practitioner was instructed only to act on behalf of P and was not engaged by the insurer as well (i.e., that he did not have a dual retainer). The Standards Committee found several breaches of the rules by Mr Gallaway.  These included that:[1]

  1. he had accepted instructions from the insurer to advise on the scope of cover, in an area where P’s interests were in conflict with the insurer’s and without informed consent from P;
  2. he withheld his reports and advice to the insurer from P, despite requests for disclosure;
  3. he failed to protect P’s interests and preferred the insurer’s interests in providing advice and assistance to the insurer; and
  4. when the insurer declined to cover the cost of a defended hearing, Mr Gallaway advised P he would no longer act for him unless he pleaded guilty.

The judicial review application

Mr Gallaway applied for judicial review of the Standards Committee’s decision. The Law Society was appointed as intervenor as the Standards Committee abided the decision of the Court and P did not wish to take part. One of the principal grounds of review which the Court accepted was that the Standards Committee had made a material error of law in concluding that Mr Gallaway was only acting for P rather than acting for both P and the insurer.  The Court found that Mr Gallaway had a dual retainer with both the insured and insurer, noting there was an express contract of retainer between Mr Gallaway and the insurer, that both parties subsequently treated the ongoing relationship as a lawyer-client relationship and that the wording of the insurance policy supported a traditional tripartite relationship between the insurer, the insured and the solicitor. The Court held that the Committee’s error in this regard was material as it drove the Committee’s subsequent analysis of the relevant issues.

The Court also found there had been a breach of natural justice in the Standards Committee’s processes because it did not adequately put Mr Gallaway on notice of all the matters in issue. Specifically, it had not given Mr Gallaway fair notice of the contention that he was appointed by the insurer to act for the insured but not for the insurer, and that he did not owe professional obligations to the insurer.  

The Court set aside the Standards Committee’s determination and declined to order that the matter be reconsidered by the Standards Committee.

[1]        At [33]. 

High Court of Australia

Negligence, duty of care, causation

Electricity Networks Corporation t/a Western Power v Herridge Parties [2022] HCA 37 (7 December 2022)

Unsuccessful appeal from Western Australia CA – Appeal concerned whether Western Power (WP) owed duty of care following bushfire in Parkerville, Western Australia, in January 2014 –

WP operated, managed and maintained an electricity distribution system used to deliver electricity to consumers' premises, including that of fourth respondent (C) - Large number of plaintiffs claimed loss and damage resulting from bushfire, caused when wooden point of attachment pole (PA pole) C owned, situated on her land, to which electrical cable and other WP apparatus attached, fell to ground due to fungal decay and termite damage - WP contracted T to undertake works in vicinity of C’s property in July 2013 – Included replacing WP’s service cable between its termination pole and PA pole - T employee did not adequately perform necessary inspection tests on PA pole to identify deterioration –

Trial judge said T and C liable in negligence and nuisance, and apportioned liability as 70 percent to T and 30 percent to C - All claims against WP dismissed - On appeal, CA said WP owed duty to people in vicinity of its electricity distribution system to take reasonable care to avoid or minimise risk of injury to those people, and loss or damage to their property, from ignition and spread of fire connected with electricity delivery through system – CA said WP breached duty by failing to have system for periodic inspection of wooden consumer-owned PA poles used to support system's live electrical apparatus –

 In HC, WP challenged imposing duty of care – Dismissing appeal, HC said no freestanding common law rule which fixed whether and when duty of care upon statutory authority might, or might not, arise - Starting point was terms, scope and purpose of applicable statutory framework - Critical feature here was WP exercised specific statutory powers performing its statutory functions regarding its electricity distribution system - Under powers attached and energised C’s premises to that system - WP exercising powers created relationship between it and all others within vicinity of its system - Critical feature was exercising those powers in manner which created or increased risk of harm to those people, whom it had power to protect - Accordingly,  common law imposed duty of care CA found which operated alongside the rights, duties, and liabilities created by statute – Further, duty not inconsistent or incompatible with statutory framework - Framework gave WP ample power to discharge duty – Appeal dismissed.

Supreme Court of Canada

Murder, Canadian Charter, unlawful detention, confession

R v Beaver [2022] SCC 54 (9 December 2022)

Unsuccessful appeal from Alberta CA – Be and L rented rooms in townhouse from landlord Bo – Bo also lived there - On October 9, 2016, L called 911 to say he and Be arrived home to find Bo dead in blood puddle - L told operator they did not know how Bo died - Admitted three of them argued all week, including night before, when Bo told him and Be to get out of house –

Shortly after arriving at scene, police detained L and Be under non-existent legislation- Breached their rights under Canadian Charter of Rights and Freedoms (Charter) - Police then transported accused to police station for questioning –

At station, homicide detectives realised first officers unlawfully detained them - Detectives tried to make “fresh start”, advising them of their Charter rights - Then arrested men for murder - When questioned separately, they initially denied knowing how Bo died - Eventually, both confessed to killing him during fight, mopping up blood and dragging body to bottom of stairs to make death look like accident –

Trial judge held voir dire to determine if confessions admissible - Accused argued confessions involuntary and inadmissible - Also claimed police lacked reasonable and probable grounds to arrest them for murder - Said confessions had to be excluded because detectives failed to make “fresh start” after unlawful detentions –

Trial judge admitted confessions - Accused submitted agreed statement of facts where admitted roles in killing - Asked judge to convict them of manslaughter - Judge agreed and sentenced each to four years in prison – L and Be appealed unsuccessfully to Alberta CA before appealing to SC - Only Be appealed confession voluntariness - L and Be claimed confessions should be excluded -

SC majority dismissed appeals – Agreed with lower courts Be’s confession voluntary and admissible - Also agreed police had reasonable and probable grounds to arrest men for murder - However, homicide detectives had made “fresh start” from Charter breaches for L, but not Be – L confessed after he consulted counsel, understood his rights, and appreciated had been arrested for murder - Be had not - Be confession obtained in breach of charter –

Section 24(2) Charter said when court concluded evidence obtained in manner breaching Charter-guaranteed rights or freedoms, evidence had to be excluded if, having regard to all circumstances, admitting would bring justice administration into disrepute -

Here, admitting Be’s confession would not bring justice administration into disrepute – men’s manslaughter convictions confirmed – Appeal dismissed.

United Kingdom Supreme Court

Abortion, safe access to facilities, human rights

Reference by Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 (7 December 2022) 

Northern Ireland Assembly (Assembly) passed Abortion (Safe Access Zones) (Northern Ireland) Bill (Bill) on 24 March 2022 - Bill primarily designed to protect women’s right to access abortion and associated sexual and reproductive health services - Prohibited anti-abortion protests and other specified behaviour within “safe access zones” around abortion clinics and related premises -

Reference to SC concerned clause 5(2)(a) which made it a criminal offence “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of… influencing a protected person, whether directly or indirectly” - People clause 5(2)(a) protected included patients, people accompanying them, and staff who worked at premises where abortion services provided –

Under Northern Ireland Act 1998, Assembly power to make legislation (or its “legislative competence”) limited – Bill provision outside Assembly’s legislative competence and therefore not law if incompatible with any right protected by European Convention on Human Rights (Convention) (sections 6(1) and 6(2)(c)) -

Attorney General for Northern Ireland (Attorney) concerned that, because clause 5(2)(a) Bill did not provide any defence of reasonable excuse, disproportionately interfered with anti-abortion protesters’ rights to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly - Articles 9, 10 and 11 Convention protected rights  - Attorney asked SC to decide whether penal sanction with no provision for reasonable excuse in Bill clause 5(2)(a) outside Assembly legislative competence because involved disproportionate interference with article 9, 10 and 11 rights of those who sought to express opposition to provision of abortion treatment services in Northern Ireland –

SC unanimously said clause 5(2)(a) compatible with Convention rights of those who sought to express opposition and within Assembly legislative competence – Among other things, said provision of devolved legislation such as clause 5(2)(a) only outside legislative competence if would give rise to an unjustified interference with rights –

SC said restricting exercise of Convention rights prescribed by law - Secondly, clause 5(2)(a) pursued legitimate aim - Sought to ensure women had access to advice and treatment relating to lawful pregnancy termination under conditions which respected privacy and dignity, thereby protecting public health - Also designed to enable staff who worked at abortion clinics and related premises to attend work place without being intimidated, harassed or abused - Aims fell within qualifications in Convention articles 9(2), 10(2) and 11(2), which permitted restriction of rights to prevent disorder, protect health and protect rights and freedoms of others – Further, right to access health care in conditions of privacy and dignity, and right to pursue employment, protected by Convention article 8 - That right entailed positive obligation which required states to enable pregnant women to exercise right of access to lawful abortion services effectively, without being hindered or harmed by protesters in ways described in the evidence before the Court –

Thirdly, SC said restrictions clause 5(2)(a) imposed were proportionate – Clause aim sufficiently important to justify restricting anti-abortion protestors’ rights under articles 9, 10 and 11, and restrictions clause imposed have rational connection to that aim - Clause 5(2)(a) not unduly restrictive: rather, rational and necessary if Bill io achieve intended aims – Reasonable excuse defence would render clause 5(2)(a) less effective - Clause itself struck fair balance between competing rights.

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