New Zealand Law Society - Courts roundup 12 September - 18 September 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Seafood New Zealand Ltd v Royal Forest & Bird Protection Society of New Zealand [2024] NZSC 111 (12 September 2024)
Partly successful appeal from CA – Appeal concerned process for Minister of Oceans and Fisheries setting fishing quotas to restore depleted fish stocks to suitable level within period appropriate to each stock – Main question whether Minister might consider social, cultural and economic factors when setting period appropriate to stock, as well as minimum probability Minister’s rebuild plan would succeed –
Section 13 Fisheries Act 1996 tries to ensure level of each stock subject under quota management system maintained at or above level that can produce maximum sustainable yield (MSY) – Theoretically, MSY largest long-term average catch taken without impairing renewability – Helped achieve Act’s purpose to provide for utilisation of fisheries resources while ensuring sustainability –
By 2017, East Coast tarakihi fishery depleted to less than half level that could produce its MSY – Section 13 required then-Minister to alter total allowable catch (TAC) to enable stock to recover to at least MSY within appropriate period – In 2018, Minister reduced TAC by 17 per cent – Decision not challenged – In 2019, reduced TAC by further 6.4 per cent and indicated would revisit year later and make further reductions if fishing industry did not live up to commitments in Industry Rebuild Plan –
Royal Forest and Bird Protection Society of New Zealand Inc (RFB) sought judicial review challenging Minister’s 2019 decision – RFB said Minister ought to have adopted recovery period having regard only to scientific (biological and environmental) considerations and based on best information available to him and he was required to consider 70 rather than 50 per cent successful rebuild – Fisheries Inshore New Zealand Ltd, since amalgamated into Seafood New Zealand Ltd (Seafood) and Te Ohu Kai Moana Trustee Ltd were joined as respondents –
On 16 June 2021, HC upheld four of RFB’s claims, including those giving rise to issues in SC appeal – On 10 August 2023, CA majority upheld HC decision – On 24 November 2023, SC granted Seafood leave to appeal – Approved question whether CA correct to dismiss appeal –
SC said appeal raised two issues – First concerned Minister’s determination of “period appropriate to the stock” in s 13(2)(b)(ii) Fisheries Act – Second issue concerned existence and status in law of default probability of successful rebuild of 70 per cent for fish stocks below their “soft limit”, such as East Coast tarakihi fishery – RFB said default probability contained in two Ministry guidelines documents, Harvest Strategy Standard (HSS) and Operational Guidelines – RFB said default probability of rebuild (and reasons for that probability) was mandatory relevant consideration when Minister set TAC for East Coast tarakihi in 2019 –
SC unanimously allowed appeal to some extent – Rejected Seafood’s position that appropriate recovery period only one of several mandatory relevant considerations for Minister – SC said s 13(2)(b) divided into two requirements, indicating that each intended to constrain TAC by reference to sustainability requirement –
However, SC said might be range of recovery periods reasonably available to Minister, because various tools used to construct rebuild plan likely to offer range of possibilities – Where stock’s biological characteristics and environmental conditions allowed for more than one appropriate recovery period, Minister might consider social, cultural and economic factors when selecting among them –
Regarding default 70 per cent success probability, SC first considered whether HSS and Operational Guidelines were mandatory relevant considerations for Minister – SC agreed with Seafood that they were not – Act lists several planning documents that must be taken into account, but not HSS nor Operational Guidelines –
SC said legislation required that TAC decision had to adopt minimum probability of not less than 50 per cent to achieve objective of rebuilding stock within rebuild period – Minister had to adopt probability of success taking account of what might be considerable uncertainty about future stock levels – Appeal partly allowed.
Moore v Māori Land Court [2024] NZSC 113 (12 September 2024)
Unsuccessful leave application – M applied for leave to appeal CA decision dismissing appeal from HC decision rejecting judicial review claim – Both CA and HC said Chief Māori Land Court Judge’s power under s 44(1) Te Ture Whenua Māori Act 1993 related to correcting errors and omissions in Māori Land Court or Registrar orders – Both said as M’s claim did not in substance challenge relevant (partition) Māori Land Court order, correction application outside scope of s 44(1) –
SC said CA approach reflected careful consideration of s 44(1) text and legislative context – Nothing M raised indicated appearance of error in approach – Leave criteria not met – Application dismissed.
Christian Congregation of Jehovah's Witnesses (Australasia) Limited v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions [2024] NZSC 114 (13 September 2024)
Unsuccessful leave application – Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (Jehovah’s Witnesses) sought leave to appeal from CA upholding HC decision dismissing Jehovah’s Witnesses judicial review challenge to activities of Royal Commission of Inquiry into Historical Abuse in State Care and in Care of Faith-based Institutions (Commission) –
SC said appeal grounds 1 to 5 turned on specific facts of case – No appearance of miscarriage of justice – No question of general or public importance on ground 6 – No good reason to exceed ten-page submission limit – Application dismissed.
Marong v R [2024] NZSC 115 (13 September 2024)
Unsuccessful leave application – Self-represented M convicted after trial in 2018 of murdering D – Sentenced to life imprisonment with 18 years MPI – Applied for leave to appeal against conviction – CA dismissed appeal on 28 November 2018 –
SC agreed with Crown that application for leave should be dealt with as application to set aside earlier abandonment of appeal to SC against conviction – Application dismissed.
Edubase Ltd v Minister of Education [2024] NZCA 430
Successful appeal by Edubase against a HC finding it had affirmed a contract with Ministry of Education and that offer from Ministry was reasonable price for services provided - Edubase provided home-based childcare services to essential workers during COVID-19 lockdown - Began providing services to Ministry of Education before funding finalised - Edubase disappointed with terms and informed Ministry it was seeking different terms and never signed a contract -
Edubase had not affirmed contract - Affirmation can only arise if there is a concluded contract - Edubase made it clear that it did not agree to price offered by Ministry and fact it provided services did not mean there was a concluded contract - Ministry accepted services knowing there was no agreement on price – Price offered by Ministry not reasonable - Quantum meruit available, dispute is level of entitlement it can quantify - Proper starting point is market value of services - Taking account of benefits Edubase had from its usual funding and wage subsidy, together with incomplete evidence of its costs in providing services, $50,000 was a price a reasonable person in Ministry’s position would have had to pay.
Xu v Meng [2024] NZCA 436
Unsuccessful appeal by X against HC decision which ordered X return deposit to purchaser, M – Sale was conditional on M obtaining finance – Pending settlement M took possession of property and paid weekly amount calculated to cover X’s mortgage repayments, to be offset against purchase price - Transaction did not settle, M remained in possession – X obtained order granting vacant possession - M successfully counterclaimed for return of $200,000 deposit - In respect of weekly payments HC noted that principal repayments were refundable, while interest payments were not -
X estopped from asserting any claim to damages for unpaid rent - X granted possession of property on ground M unlawful occupier, and expressly not tenant - Not open to X to contend M was tenant – Fact M received income from property does not amount to claim of unjust enrichment - X had expressly allowed M to use any income from property - Contract between parties did not come to an end as a result of repudiation and cancellation but because finance condition had not been satisfied - HC was correct to order X return deposit less amounts payable while M remained in possession – X obliged to repay mortgage, and mortgage principal was not a cost associated with property, which M was liable to pay.
Noda v R [024] NZCA 433
Successful appeal by N against sentence four years and 10 months imprisonment for aggravated robbery – N and co-offenders drove to residential address and demanded drugs and money - From starting point of seven and a half years N received total of 35 per cent in discounts (20 per cent for guilty plea, 10 per cent for youth, rehabilitation and remorse, and five per cent for alcohol and drug addiction) to reach end sentence – Failure of counsel to advise he could seek a s27 Sentencing Act 2002 report -
Section 27 report should be admitted as fresh evidence - Information within report was not fresh, but N not advised of option of obtaining one - Report credible and cogent - Report discussed factors in N’s background likely to be causative of offending, including cultural deprivation, normalisation of violence and crime due to exposure from young age and mental health difficulties - Risk of disproportionate sentencing outcome if report excluded - Judge sentenced N on erroneous basis he had good upbringing - Additional 10 per cent discount appropriate - Sentence of four years and one month imprisonment substituted.
Bevin v R [2024] NZCA 432
Unsuccessful appeal by B against a sentence of 10 years imprisonment for possessing methamphetamine (x24), possessing cannabis for supply, supplying methamphetamine, receiving stolen property, and unlawfully possessing a firearm – Section 27 Sentencing Act 2002 report referred to his ignorance of the te ao Māori aspects of his heritage, ADHD diagnosis, physical abuse and drug addiction – Judge referred to B attending rehabilitation as part of a standard tactic with aim of delay and then seeking discount for addiction and rehabilitation potential –
Even if a DCJ addresses a claim of remorse and rehabilitation potential in a robust way, in the present case the Judge went further than was fair – Grounds to be sceptical about effects of B’s background, addiction, and rehabilitation potential – B given previous chances at rehabilitation – Starting point of 13 to 14 years with uplift for previous offending appropriate - Ten-year term involved calculation error – Discounts of more than 25 per cent for guilty plea inappropriate – Discounts for personal mitigating circumstances such as addiction and rehabilitation potential could not have been greater than a further 5 to 10 per cent – Sentence not manifestly excessive – Appeal dismissed.
Attorney-General for the State of Tasmania v Casimaty [2024] HCA 31 (11 September 2024)
Successful appeal from Tasmania Full Supreme Court – Concerned s 16(1) Public Works Committee Act 1914 (Tas) (Act), which stipulated conditions precedent to commencing public work by Tasmanian Government department or State authority – Conditions precedent that public work had been referred to and reported upon by Parliamentary Standing Committee on Public Works (Committee) – Question in appeal was whether observing conditions precedent were obligation court could enforce –
Tasmanian Government Department of State Growth (Department) proposed new interchange be constructed at road junction near Hobart Airport – Proposal referred to Committee and reported on in 2017 – Department subsequently engaged Hazell Bros Group Pty Ltd (Hazell Bros) to construct new interchange – C claimed to have interest in land adjacent to site and commenced proceedings against Hazell Bros – C said commencing work contravened s 16(1) as work different from proposed road work referred to and reported on –
Attorney-General for Tasmania joined as defendant – Attorney-General filed interlocutory application seeking order that statement of claim be struck out or proceeding dismissed, either because statement of claim failed to disclose cause of action in that there was "no justiciable issue before the Court", or because adjudication by Supreme Court of issues of fact raised on pleadings would "offend the principle that parliamentary proceedings are absolutely privileged" –
Primary judge persuaded that for Supreme Court to adjudicate would necessarily contravene privilege of Tasmanian Parliament – Statement of claim struck out and proceeding dismissed –
Full Court majority allowed appeal, construing s 16(1) as creating "a public obligation enforceable under the general law" – Said comparison would not necessarily contravene any Tasmanian Parliament privilege –
HC said observing conditions precedent here was not obligation court could enforce – Act’s purpose to strengthen political accountability in accordance with conventions of responsible government – Statutory consequence of non-compliance with conditions precedent best seen to lie exclusively within province of political accountability mechanism – Appeal allowed.
Director of Public Prosecutions v Smith [2024] HCA 32 (11 September 2024)
Successful appeal from Victoria CA – Concerned operation of provisions of Pt 8.2A Criminal Procedure Act 2009 (Vic) (Act), which applied to criminal proceedings for sexual offences if witness (including complainant) under age of 18 years – Issues in appeal were: whether introductory meeting between complainant, judge and counsel for both prosecution and accused on day before judge presided over special hearing to take complainant's evidence authorised by s 389E Act; and whether meeting gave rise to fundamental irregularity – Section 389E(1) provided "[a]t a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding" –
S charged with sexual offences against child under 16 years – At "ground rules hearing", County Court Judge directed, purportedly under s 389E, that judge and counsel meet with and be introduced to complainant (who was minor at time) before complainant gave evidence at "special hearing" – S not present at meeting and meeting was not recorded – Meeting followed recommendation in report of intermediary, appointed under s 389J(1) Act, which recorded complainant had told intermediary it would assist her confidence to meet counsel and judge in person on day she gave evidence if possible – Prior to meeting, judge said purpose was for complainant to "say hello" – Counsel for S confirmed he had no objection to meeting and content to introduce himself to complainant at same time –
After special hearing, in another case, Victoria CA set aside accused’s conviction on ground that substantial miscarriage of justice occurred because judge conducting special hearing met with complainant "privately" (in presence of intermediary, but in absence of counsel for prosecution or accused) – In S’s case, after prosecution application, County Court judge reserved questions of law for CA determination regarding introductory meeting – CA said meeting not authorised under s 389E and inconsistent with open justice principles – CA also said only remedy was for complainant's evidence to be taken at further special hearing before different judge –
Allowing appeal, HC majority said s 389E(1) included power for judge, counsel for both prosecution and accused, and intermediary, to meet with complainant before special hearing – Problem in other case was judge attended meeting with complainant privately – Neither meeting occurrence nor admission into evidence of special hearing recording constituted, or would constitute, fundamental irregularity – In circumstances, could not be concluded that fair-minded lay observer might reasonably apprehend judge might not bring impartial mind to resolution of any issue in proceeding – Appeal allowed.
Morgan v Mcmillan Investment Holdings Pty Ltd [2024] HCA 33 (11 September 2024)
Unsuccessful appeal from Full Court, Federal Court – Concerned requirement under s 579E(1) Corporations Act 2001 (Cth) to make "pooling order" for two or more companies – Section 579E(1) provided gateways before court could consider whether satisfied was just and equitable to make pooling order – Gateway in s 579E(1)(b)(iv) required "one or more companies in the group own particular property that is or was used, or for use, by any or all of the companies in the group in connection with a business, a scheme, or an undertaking, carried on jointly by the companies in the group" –
M was liquidator of two companies (SAP and SAM) that operated colour printing business – Under finance facility between SAP, SAM and first respondent (MIH), receiver and manager appointed to SAP and SAM – Receiver, SAP and SAM entered agreement to sell, as going concern, SAP and SAM assets and business to purchaser – Correspondence from MIH's lawyer suggested that purchaser had made much stronger offer, but purchase price reduced at last minute – M also tendered invoice from company associated with MIH to purchaser for $330,000 – M alleged invoice represented payment that would otherwise have been included in purchase price due to SAP and SAM –
On 10 June 2018, ASIC deregistered SAM – Primary judge reinstated SAM and made pooling order in respect of SAP and SAM – Primary judge said gateway in s 579E(1)(b)(iv) permitted order – Said "particular property", SAP and SAM jointly and severally owned, was chose in action to seek recovery of monies alleged to have been wrongfully paid, that would be able to be used in connection with their joint undertaking to "discharge their debts and conduct recovery of their assets" – Full Court majority allowed appeal saying s 579E(1)(b)(iv) required relevant property to be used with respect to past or present joint undertaking, not future joint undertaking to enforce debts –
HC said whether "use" of property satisfied requirement in s 579E(1)(b)(iv) depended on whether identified use had sufficient "connection" with carrying on of joint business, scheme or undertaking – Even if alleged chose in action property available for use, would not have sufficient connection with carrying on joint business that was sold – Rather, would have direct and substantial connection with disposal of business – HC also said s 601AH(5) Corporations Act, which provided "[i]f a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered", only had limited effect of deeming SAM to have continued to exist – Did not affect fact that no business, scheme or undertaking took place during period of deemed existence – Appeal dismissed.
Chief Commissioner of Police v Crupi [2024] HCA 34 (11 September 2024)
Successful appeal from Victoria SC – Concerned Commissioner’s objection to disclosure of documents concerning police informer on public interest immunity grounds under s 130(1) Evidence Act 2008 (Vic), Victorian legislative equivalent of common law doctrine of public interest immunity – Issue before HC whether primary judge's reasons for rejecting claim were inadequate – Section 130(1) provided "[i]f the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence" –
In November 2018, C charged with murder – Commissioner disclosed substantial number of documents to C but sought to resist disclosure of additional material (PII material) on public interest immunity grounds, saying disclosure might reveal informer’s identity or enable identity to be ascertained – Application to resist disclosure heard and dismissed by Supreme Court in November 2022 – Primary judge said information included in submissions of amici curiae (who had access to PII material) derived from PII material "likely to be of substantial assistance" to C and "therefore" disclosure was required – Primary judge’s reasons were extremely brief, consisting of five paragraphs – Primary judge ordered production of all documents identified as "possibly being of substantial assistance" with limited redactions – As Commissioner not party to proceeding, unable to bring appeal from primary judge's decision and sought instead to have primary judge reserve questions of law for Victoria CA – On two occasions, CA said questions not questions of law and CA had no jurisdiction to answer them –
Commissioner sought special leave to appeal to HC directly from primary judge's decision – Granting special leave and allowing appeal, HC upheld Commissioner’s complaint concerning inadequacy of primary judge's reasons – HC said primary judge's reasons ought to have, but did not, disclose any reasoning about whether public interest in production or redaction of PII material outweighed by public interest in preserving their secrecy or confidentiality as required by s 130(1) – Reasons also inadequate as left parties and amici curiae to speculate regarding orders – Matter remitted to primary judge or another judge at first instance for reconsideration – Appeal allowed.
Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers [2024] UKSC 28 (12 September 2024)
Successful union appeal from CA – Concerned whether Tesco Stores Ltd (Tesco) could terminate employees’ employment contracts, for specific purpose of depriving them of “retained pay” (RP), financial contractual entitlement which agreed to be permanent – Appeal raised fundamental questions about employer’s right, under contract law, to terminate employment contract by giving requisite notice to employee and about employee’s remedies for employment contract breach –
In 2007, Tesco decided to close some distribution centres, to expand or restructure others, and to open new sites – Tesco sought to incentivise existing employees at centres being closed to relocate to another site – Tesco and its recognised trade union, Union of Shop, Distributive and Allied Workers (USDAW), made collective agreement under which Tesco agreed to provide RP to employees who agreed to relocate –
Right to receive RP incorporated into relevant employment contracts as express term – RP term said RP would “remain a permanent feature” of employee’s contractual entitlement, subject to certain qualifications – Separate employment contract term gave Tesco contractual right to dismiss employee without cause, on provision of specified notice –
In 2021, Tesco sought to end RP – Informed employees that, if they did not consent to removal of their right to receive RP, they would be dismissed and offered re-engagement – Re-engagement terms would be identical, except for removal of RP term – Together with USDAW, several employees in receipt of RP applied to HC, seeking declarations as to true meaning of RP term and injunction to restrain Tesco from terminating their employment to remove RP term – HC allowed claim and granted injunction – CA unanimously allowed Tesco’s appeal – Claimants appealed to SC –
SC unanimously allowed appeal and restored injunction granted – SC said employment contracts contained implied term with effect that employer’s right to terminate could not be exercised for purpose of depriving employees of their right to RP – Appeal allowed.
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