New Zealand Law Society - Courts roundup 9 May - 15 May 2024

Courts roundup 9 May - 15 May 2024

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

Book on stand in Wellington High Court

New Zealand Supreme Court

Judicial review, ultra vires, Corrections Regulations

Obiaga v Attorney-General [2024] NZSC 49 (6 May 2024)

Unsuccessful leave application – O applied for judicial review, saying reg 48(c)–(e) Corrections Regulations 2005 (Regulations) went beyond empowering legislation, Corrections Act 2004, because they allowed Ara Poutama Aotearoa | Department of Corrections (Corrections) to fix security classifications, applying factors not strictly confined to risk prisoner posed – Relief sought in statement of claim declarations that relevant sub-regulations ultra vires and relevant Prisons Operation Manual provisions and associated forms and processes (together, Review Policy) unlawful –

HC and CA dismissed application – CA relied on presumption of validity of subordinate legislation and empowering provisions breadth – Said Regulations responded to policy directives in legislation and allowed for appeals and reviews – Dismissed as misconceived O’s argument reg 48(c)–(e) ultra vires because Corrections “can do better” – Said Review Policy lawful for similar reasons –

O sought leave to appeal – Attorney-General accepted issue intrinsically important but appeal had insufficient prospect of success to warrant leave –

SC said security classification system important – Had major impact on prisoners’ conditions, access to rehabilitation and duration of imprisonment – Classification decisions might well justify appeal to SC appropriate case – Not this one – Application dismissed.

Preventive detention, conditions on parole

Grinder v Attorney-General [2024] NZSC 50 (6 May 2024)

Successful leave application – Approved question is whether CA correct to allow appeal and in particular proper approach to imposition, variation or discharge of special conditions when person subject to preventive detention granted release on parole – Leave granted.

Relationship between ESOs, CCOs

R (SC 64/2022) v Chief Executive of the Department of Corrections [2024] NZSC 47 (7 May 2024)

Successful appeal from CA – Concerned relationship between extended supervision orders (ESOs) and compulsory care orders (CCOs) under relevant legislation – ESO allowed parole-like conditions on high-risk sexual or serious violent offenders – CCO provided for compulsory care in designated facility for certain individuals with intellectual disability, including those declared unfit to stand trial – R subject to both orders – Challenged ESO legality – Three questions arose for SC to consider – First, did statutory scheme permit concurrent ESO and CCOs – Secondly, could GPS monitoring be imposed under CCO – Thirdly, how might New Zealand Bill of Rights Act 1990 (NZBORA) affect courts’ powers to review continuation of ESO – Procedural issues arising in appeal limited full examination –

Under s 107RA Parole Act 2022, HC had to review R’s ESO every five years and, following review, either confirm ESO or cancel it – On 31 August 2021, confirmed R’s ESO saying he continued to pose high risk of committing further sexual offences and ESO needed if CCO ended –

On 29 March 2022, CA dismissed R’s appeal and upheld ESO, but on different grounds to HC – Said although ESO was not strongly justified by future protection it offered, provided important flexibility in R’s care arrangements, allowing conditions not available under CCO alone – Orders’ coexistence could therefore be justified by combination of public safety measures and broader care options it enabled – On 11 April 2023, SC granted R leave to appeal – Approved question how NZBORA affects exercise of court’s discretion to renew ESO when individual also subject to CCO –

SC unanimously allowed R’s appeal – ESO review remitted to HC for reconsideration in light of SC judgment and any further evidence adduced HC – Said possible electronic monitoring under ESO might practically allow R greater freedom than would be available under CCO alone, counter-intuitive though that might appear – However, objective might not fall within purpose for which ESO regime enacted, to protect public from risk of further serious sexual or violent offending – Restrictions imposing ESO created had still to be demonstrably justified in free and democratic society, given s 5 NZBORA – Ultimately, issues needed to be evaluated against background of properly tested facts – Appeal allowed.

Self-represented litigant, constructive trust

Patel v Patel [2024] NZSC 51 (7 May 2024)

Unsuccessful leave application – Self-represented JP applied for leave to appeal against CA dismissing appeal from HC – HC dismissed claim properties held by first, third and fourth respondents were held subject to constructive trust –

SC said proposed appeal would reprise arguments in CA subject to factual findings in both HC, CA –

SC said would have to re-assess concurrent fact findings in Courts below – No question of general or public importance – No appearance of miscarriage of justice – Application dismissed.

Methamphetamine, proceeds forfeiture

Slessor v Commissioner of Police [2024] NZSC 48 (8 May 2024)

Unsuccessful leave application – S convicted of methamphetamine offending in 2011 and again in 2021 – At time of original sentencing in 2011, retention of cash seized and later held in police trust account overlooked –

In 2022, HC ordered profit forfeiture of $84,000 against S – Further order money in trust account ($28,778) could be used in part satisfaction of first order – S said money advance from friend to assist in S’s French Bulldog breeding business – HC said money from offending –

S appealed second (but not first) order – CA declined application to adduce further evidence and dismissed substantive appeal –

SC said S wanted re-run argument HC, CA rejected of illegality defence based on police deliberate, unlawful funds retention –

SC said leave criteria not met – No matter of general or public importance raised – Concurrent findings in Courts below on unlawful source of money forfeited and absence of police bad faith – Application dismissed.

Sexual violation, rape

Wright v R [2024] NZSC 55 (8 May 2024)

Unsuccessful leave application – W guilty after jury trial of sexual violation by unlawful sexual connection and sexual violation by rape in relation to complainant, C – CA dismissed both conviction appeals – Sought leave to appeal to SC –

SC said might wish at some point to consider effect of age on reasonableness of belief in consent, but not in this case – Nor did anything raised give rise to appearance of miscarriage of justice in CA assessment of particular facts – Application dismissed.

Self-represented litigant, strike out, abuse of process

O’Neill v Hipkins [2024] NZSC 52 (9 May 2024)

Unsuccessful leave application – Self-represented O’N applied for leave to appeal CA strike out of appeal from HC –

In 2022 O’N began judicial review proceedings against Judicial Conduct Commissioner dismissing his complaints against several judges as vexatious – In 2022, HC struck out proceedings as abuse of process –

On appeal to CA O’N failed to appear because he was apparently isolating after contracting COVID-19 – CA required him to provide medical certificate if he was not going to appear again at rescheduled hearing – Did not appear – CA eventually dealt with appeal on papers –

SC declined leave to appeal – Although accepted requirement to produce medical certificate might be issue of general or public importance, said both HC and CA said underlying proceedings abuse of process – Not suitable case to grant leave on medical certificate issue –

On 4 August 2023, O’N filed documentation in HC purporting to be judicial review claim against then Prime Minister and Attorney-General and claiming Government’s COVID-19 policies impacted his right of access to justice –

On 17 August 2023, HC Registry returned documents to O’N because not compliant with High Court Rules 2016 – O’N returned documents for filing on 21 August 2023 saying they had been wrongly rejected – Also filed interlocutory application without notice, requiring judicial decision on whether documents should be accepted for filing –

Although still did not comply with High Court Rules, Registrar pragmatically accepted documents for filing and referred both applications to judge under r 5.35A of High Court Rules 2016 – Rule allowed Registrar to refer plainly abusive proceeding to judge before service – Judge then empowered under r 5.35B to make orders dealing with proceeding –

Judge struck out proceedings on 18 September 2023, saying “would be manifestly unfair to require respondents to respond to Mr O’Neill’s allegations” – On 17 November 2023 CA struck out O’N’s appeal as abuse of process –

SC said nothing O’N raised suggested Courts below were wrong – Leave application abuse of process had to be dismissed.

Protest to jurisdiction, tort claims

Body Corporate Number DPS 91535 v 3A Composites GMBH [2024] NZSC 53 (9 May 2024)

Unsuccessful leave application – Applications for leave to appeal and cross-appeal in dispute relating to cladding product (Alucobond PE) installed on buildings – Alleged was material risk that, in event of fire, flammable core of cladding would cause or contribute to rapid spread and severity of any fire –

3A Composites GmbH, German corporation (3A) manufactured Alucobond PE – Filed protest to jurisdiction regarding Body Corporate (BC) HC proceedings – HC set aside protest to jurisdiction regarding three tort claims but upheld protest regarding claim under Consumer Guarantees Act 1993 (CGA) and two under Fair Trading Act 1986 (FTA) – CA upheld HC on CGA, although reasoning differed in some respects from HC – Allowed appeal regarding FTA –

BC sought seek leave to appeal against CGA finding – 3A sought leave to cross-appeal against FTA finding –

SC said proposed appeal and cross-appeal related to interlocutory decision, meaning s 74(4) of Senior Courts Act 2016 applied – Regarding cross-appeal, did not consider it necessary to hear proposed appeal on FTA claims before trial, particularly as tort claims proceeding to trial – Regarding CGA claims, prospects of success not sufficient to mean in interests of justice to grant application – Applications dismissed.

Sexual offences, consent

Heke-Gray v R [2024] NZSC 54 (9 May 2024)

Unsuccessful leave application – H-G convicted of sexual offences against complainant – CA allowed H-G’s appeal against sentence – Dismissed appeal against conviction – Sought leave to appeal conviction to SC –

In CA, H-G had applied to adduce further evidence on how Foetal Alcohol Spectrum Disorder (FASD) may have impacted his belief in consent – CA said while evidence credible, not fresh – Said evidence could not have affected outcome –

SC rejected appeal grounds – Application dismissed.

Property Relationships, copyrights

Alalääkkölä v Palmer [2024] NZSC 56 (9 May 2024)

Successful leave application – Approved question is whether CA correct in answers Court gave to questions of law: (a) Are Copyrights “property” for purposes of Property (Relationships) Act 1976 (the Act)? Yes; (b) If Copyrights are property, how should they be classified in terms of Act? Copyrights should be classified as relationship property –

CA said Copyrights should remain in A’s exclusive legal ownership, with P receiving compensatory adjustment from other relationship property to ensure equal division – Leave grant extended to question of orders to be made consequential upon answers given to questions set out above – Application granted.

New Zealand Court of Appeal

Judicial review, Ministerial decision, Climate change

Students for Climate Solutions Inc v Minister of Energy and Resources [2024] NZCA 152

Unsuccessful appeal to review the decision, by the delegate of the Minister of Energy and Resources, to grant two petroleum exploration permits – The appellants challenged the decision to grant the permits in the HC arguing that the decision-maker was obliged and failed to consider the climate change implications of the decision — either as a mandatory relevant consideration or in having regard to the principles of the Treaty of Waitangi | Te Tiriti o Waitangi, rendering the decision unlawful - These arguments remain substantively the same on appeal - Whether the climate change implications of granting the permits were a mandatory relevant consideration – Whether the decision-maker failed to have proper regard to the principles of the Treaty of Waitangi – HELD: Although the seriousness of climate change is beyond argument that does not mean that the Courts can strain legislation to the point that it no longer gives effect to Parliament’s intention – The decision-maker had given regard to the relevant principles, and in line with requirements, affected iwi and hapū had been consulted and actions taken in response to this consultation – Appeal dismissed.

Indefeasibility of title, Easement, Estoppel

Thornley v Ford [2024] NZCA 154

Successful appeal concerning the purported termination of an equitable easement granting the right to convey water where the pipes for that conveyance were located in a different position from that described in the registered legal easement – The HC held that there was an equitable easement created when the pipes were laid, but that it "did not survive" transfer of title to the independent trustees and also rejected claims of estoppel and rectification - Following the filing of the appeal in this Court, the burdened land was sold to new owners who agreed to vary the legal easement so that it applied to the route of the pipes as laid - The first respondents pleaded that the appeal was moot because of this development - The second respondent, by this time in liquidation, took no part in the appeal – HELD: Appeal allowed - It was appropriate to consider the appeal because its outcome could be financially important to the appellants; - Part of the appellants' claim was not directly addressed in the HC; - And the case could have general importance - The claim of estoppel by silence was not established.

Sexual offending, Sentence, Minimum period of imprisonment

Green v R [2024] NZCA 155

Partially successful appeal against a sentence of 10 years 4 months, with a minimum period of imprisonment (MPI) of 5 years 2 months, for 5 charges of sexual offending – Appellant appeals on the basis an excessive starting point and inadequate discounts for personal mitigating factors, combined with the imposition of an MPI, has resulted in a manifestly excessive sentence – Appellant is a transgender women, but had not yet transitioned at the time of the offending for which she was convicted, which occurred over a 10 year period between 2006 and 2016 - Final starting point of 13 years did not fall beyond the range available to the Judge in the exercise of her sentencing discretion – Considering denial of offending, discounts appropriate - An MPI was neither required nor necessary for the purposes of meeting the stipulated statutory purposes of sentencing – MPI not warranted - HELD: Sentence allowed in part – MPI is quashed – Sentence otherwise stands.

New Zealand High Court

Customary marine title

Ngā Hapū O Tokomaru Ākau v Ngā Whanaū O Hauiti [2024] NZHC 682 (1 May 2024) Cull J

Reissued judgment from 25 March 2024 –  Two Tokomaru Bay hapū met test for customary marine title (CMT) and protectory customary rights (PCRs) under Marine in Coastal Area (Takutai Moana) Act 2011 – Court sought further information before final CMT orders leave granted to address issues relating to wāhi tapu protection and further PCR claims in Stage Two hearing.

High Court of Australia

Crown immunity, body corporate liability

Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 (8 May 2024)

Successful appeal from Full Court Northern Territory SC – Question whether Director of National Parks (DNP) could be criminally liable for breaching s 34(1) Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act), which prohibited "person" from carrying out work on or using "sacred site" within meaning of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) –

Gunlom Aboriginal Land Trust held Gunlom Falls, within Kakadu National Park, in fee simple for Jawoyn people – Gunlom Aboriginal Land Trust leased Gunlom Falls to DNP on condition it be Commonwealth reserve under Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) – In March 2019, DNP engaged contractor to realign walking track – Area sacred site under Sacred Sites Act – DNP caused works to be undertaken without permission of "Authority Certificate" or "Minister's Certificate" under Sacred Sites Act – Chief Executive Officer Aboriginal Areas Protection Authority (Authority) charged DNP with offence against s 34(1) (charge) –

Section 34(1) Sacred Sites Act prohibited "person" carrying out work on or using sacred site –Interpretation Act 1978 (NT) defined "person" to include "a body politic and a body corporate" – DNP established as corporation sole under s 15 National Parks and Wildlife Conservation Act 1975 (Cth) and continued in existence as body corporate under ss 514A and 514E EPBC Act – Statutory functions included administering, managing and controlling Commonwealth reserves –

Before Northern Territory Local Court, DNP pleaded not guilty to charge, saying could not be convicted of s 34(1) offence – Local Court stated special case for opinion of Northern Territory SC, which was referred to Full Court – Full Court said DNP, as government instrumentality, enjoyed “Crown” Commonwealth executive government, privileges and immunities, including presumption against imposition of criminal liability on Crown – Full Court said offence and penalty in s 34(1) did not apply to DNP as matter of statutory construction –

HC unanimously said DNP could be criminally liable for breaching 34(1) Sacred Sites Act – Said presumption was against construing statute to impose criminal liability on body politic – Not presumption against construing statute to impose criminal liability on natural person or body corporate, such as DNP – Appeal allowed.

Contract breach, anticipation, reliance, damages measure

Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 (8 May 2024)

Unsuccessful appeal from New South Wales CA – Concerned measure of damages for breach of contract – Issue method of proof for plaintiff to establish position that it would have been in if contract had been performed, where plaintiff incurred expenditure in anticipation of, or reliance on, performance of defendant's contractual obligation and defendant's breach of obligation meant expenditure wasted –

As part of initiative to develop Cessnock Airport, council entered into agreement with company where company leased prospective lot at airport – Lease grant required subdivision of part of Council's land – Agreement condition Council would take all reasonable action to apply for and obtain registration of subdivision plan of subdivision by certain date – Council breached condition and repudiated agreement – Company never obtained lease – Had spent considerable sums in anticipation of, or reliance on, agreement, constructing "iconic" aircraft hangar on site of proposed lease – Company’s businesses failed and, following Council's repudiation, agreement terminated –

Company began proceedings in New South Wales Supreme Court to recover damages based on wasted expenditure constructing hangar – Primary judge awarded company only nominal damages, saying: presumption of recoupment only arose if nature of breach rendered it "impossible" to assess damages on usual basis; Council not contractually bound to develop airport (leaving nondevelopment risk with company); and, in any case, Council "rebutted" any presumption of recoupment – CA allowed company’s appeal, saying presumption not confined to cases of "impossibility" of proof and Council had not rebutted presumption as significant possibility of airport development during proposed lease period –

Unanimously dismissing Council’s appeal, HC said where defendant's breach of contract resulted in uncertainty about position that plaintiff would have been in if contract had been performed, discharge of plaintiff's legal burden of proof to prove loss will be facilitated by assuming in their favour that, had contract been performed, plaintiff would have recovered expenditure that they reasonably incurred in anticipation of, or reliance on, performance of contract – Council's breach caused considerable uncertainty about company’s position – In circumstances, respondent to be treated as having established loss in amount of reasonable expenditure on hangar – Expenditure incurred in anticipation of, or reliance on, performance of Council's obligation to take all reasonable action to obtain registration of subdivision plan – Appeal dismissed.

Exercise of power, miscarriage of justice?

Obian v R [2024] HCA 18 (8 May 2024)

Unsuccessful appeal from Victoria CA – Concerned proper construction of 233(2) Criminal Procedure Act 2009 (Vic), which allowed prosecution, with leave of trial judge, to call evidence in reply "[i]f, after the close of the prosecution case, the accused gives evidence that could not reasonably have been foreseen by the prosecution" – Principal issue whether, in the circumstances, exercise of that power involved substantial miscarriage of justice because prosecutor misinformed trial judge about fact relevant to exercising power –

O convicted on three charges in Victorian County Court of trafficking in drug of dependence of not less than commercial quantity – Prosecution evidence for third charge included that of alleged co-conspirator, who said O hired van subsequently used to move drugs – After prosecution closed its case, O gave evidence that: he rented van for friend, A and, after dropped van off at A's house, had nothing more to do with van – Subsequently, prosecution applied for leave to adduce evidence in reply of surveillance operative which inconsistent with O’s account – When applying, prosecutor said (incorrectly) O’s evidence "the first time we've heard that [the appellant] now says he did hire this van" and previously O always denied being at car rental place – E-mail from O’s lawyer and (unsigned) notice of alibi informed prosecution O hired van – Trial judge accepted O gave evidence prosecution could not reasonably have foreseen and granted leave for prosecution to adduce further evidence – O sought leave to appeal convictions but, CA majority refused leave – Majority in CA correct to conclude trial judge did not err in exercising power in s 233(2) Criminal Procedure Act to permit prosecution to adduce evidence in reply in circumstances of case – Appeal dismissed.

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