New Zealand Law Society - Courts roundup 13 March - 19 March 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Jury v R [2025] NZSC 14 (17 March 2025)
Partly successful leave application – Approved questions: (a) whether HC erred admitting RM hearsay statements in evidence, and if so, whether error occasioned miscarriage of justice; and (b) whether trial Judge’s failure to give reliability direction under s 122 Evidence Act 2006 with respect to those statements occasioned miscarriage of justice – Leave application otherwise dismissed.
M v R [2025] NZCA 48
AR v Accident Compensation Corporation [2025] NZCA 49
Whether the HC erred by upholding the DC’s application of the legal test for causation to the facts of AR’s appeal for the purposes of determining whether AR had suffered a treatment injury under s32 Accident Compensation Act 2001 - Incorrect advice given by after-hours medical helpline – Eight hours later same helpline advised to call ambulance immediately – AR suffered from Guillain-Barrē syndrome (GBS) – AR sought cover from ACC – ACC accepted that delay in diagnosing the seriousness of AR’s condition was a failure to provide treatment in a timely manner within the meaning of the Act, however the claim was declined on basis delay did not cause GBS nor increase its severity – HC held DC’s approach to causation had been in accordance with the decision ACC v Ambros and that there had been no error of law –
No data to support conclusion that treatment started 8 or 12 hours earlier would have made difference to outcome – There needs to be sufficient material pointing to proof of causation on the balance of probabilities for a court to draw even a robust inference on causation – Unable to identify any discernible error in DC’s approach to causation including whether relevant factors were ignored or irrelevant factors taken into account - Appeal dismissed.
A v R [2025] NZCA 50
Body v R [2025] NZCA 51
Unsuccessful appeal against sentence of 7 years and 11 months’ imprisonment – Appellant B pleaded guilty to eight charges relating to high-speed police car chase – Breach of parole conditions – Aggravated assault – failing to stop for red and blue flashing lights – Dangerous driving (x2) – Unlawful possession of a firearm – Presenting a firearm at a person – Robbery – B was also found guilty of dangerous driving and conspiring to pervert the course of justice – Whether the sentence was manifestly excessive –
Whether sentence manifestly excessive generally depends on the end sentence imposed, rather than the process by which it was reached - DCJ’s overall starting point appropriately reflected the criminality of B’s offending - Uplift for personal aggravating factors, while on the upper end of the permissible range, was not excessive - Sufficient adjustment was made for personal mitigating factors, namely B’s s 27 report - Very serious nature of Mr Body’s offending necessitated only a limited reduction for such factors – Appeal against sentence dismissed.
H v R [2025] NZCA 52
H v R [2025] NZCA 53
F v R [2025] NZCA 54
T v R [2025] NZCA 55
Z v R [2025] NZCA 56
Commonwealth of Australia v Yunupingu (on Behalf of The Gumatj Clan or Estate Group) and ors [2025] HCA 6
Unsuccessful appeal from Full Ct FCA – Appeal raised three questions of law: First, whether power conferred on Commonwealth Parliament by s 122 Constitution to make laws for government of territory extended to making law with respect to acquisition of property otherwise than on just terms within meaning of s 51(xxxi) Constitution; Second, whether extinguishment by or under Commonwealth law of native title recognised at common law before commencement of Native Title Act 1993 (Cth) constituted acquisition of property within meaning of s 51(xxxi); Third and more specific question whether granting pastoral lease in 1903 by South Australian Governor under Northern Territory Land Act 1899 (SA) had effect of extinguishing any non-exclusive native title rights over minerals on or under subject land –
In application to Federal Court made on their behalf, Gumatj Clan or Estate Group of Yolngu People claimed entitlement to compensation under Native Title Act for "past acts" "attributable" to Commonwealth – Within Native Title Act meaning, "act" included making legislation as well as exercising executive power whether or not under legislation – “Past act" included act which, apart from retrospectively validating Native Title Act operation, invalid to any extent at time it occurred but would have been valid to that extent at time if native title did not exist – Past act "attributable" to Commonwealth if done by Commonwealth Parliament or under Commonwealth law – Gumatj Clan claimed past acts attributable to Commonwealth for which Clan entitled to compensation are specified appropriations to Commonwealth and grants to third parties of interests in land in Gove Peninsula, Northern Territory between, 1939 and 1969 by or under ordinances made by Governor-General under Northern Territory (Administration) Act 1910 (Cth) – Gumatj Clan claimed each appropriation or grant invalid at time occurred to extent inconsistent with native title rights and interests, which must now be accepted Australian common law recognised Gumatj Clan held regarding land –
Gumatj Clan claim founded on two main propositions: First power conferred on Commonwealth Parliament by s 122 Constitution (source, or at least a source, of power to enact Northern Territory (Administration) Act) did not extend and never extended to making law with respect to acquisition of property otherwise than on just terms within meaning of s 51(xxxi) Constitution – Second, law properly characterised as law with respect to acquisition of property within meaning of s 51(xxxi) if and to extent law purportedly before commencement of Native Title Act to appropriate or grant interest in land inconsistent with native title right or interest regarding that land then recognised at common law – Full Court, answering separate questions stated to elicit authoritative determination of correctness or incorrectness of two propositions, accepted both propositions to be correct –
HC said Full Court right to accept both propositions as correct – Answer to third more specific question of law raised in appeal was grant of pastoral lease in 1903 Governor of South Australia under Northern Territory Land Act did not extinguish any non-exclusive native title rights over minerals on or under subject land – Appeal dismissed.
Bogan v Estate of Peter John Smedley (Deceased) [2025] HCA 7
Answer to referred question of law – Supreme Court of Victoria group costs order (GCO) in group proceeding commenced under Pt 4A Supreme Court Act 1986 (Vic) relevant to Court's consideration of exercise of power conferred under s 1337H(2) Corporations Act 2001 (Cth) (Corporations Act) – GCO in group proceeding weighed decisively against transferring proceeding to Supreme Court of New South Wales – GCO could not operate after transfer, giving rise to considerable risk proceeding would not be able to continue –
Section 33ZDA Supreme Court Act created exception to prohibition in Victoria against law practice charging contingency fee – Section 33ZDA empowered Victorian SC to make GCO in group proceeding commenced under Pt 4A Supreme Court Act – Section 1337H(2) Corporations Act provided "if it appears to a transferor court that, having regard to the interests of justice, it is more appropriate" for proceeding to be determined by another court that had jurisdiction in matters for determination in proceeding, "the transferor court may transfer the relevant proceeding ... to that other court" –
Arrium class action group proceeding commenced in Victorian SC – Plaintiffs brought proceeding on own behalf and on behalf of members of group of those who or which acquired interest in fully paid ordinary Arrium Ltd shares during relevant period – Plaintiffs applied for GCO (GCO application) – Auditor, retained to audit Arrium's financial accounts in relevant period, applied to transfer Arrium class action to New South Wales SC (transfer application) – Primary judge ordered transfer application determined after GCO application – Another judge determined GCO application and ordered legal costs payable to law practice representing plaintiffs and group members be 40 per cent of any award or settlement recovered in Arrium class action – Primary judge then reserved following questions for Victorian CA to consider: (1) Is fact that Supreme Court of Victoria made GCO under s 33ZDA of Supreme Court Act relevant to exercise of discretion under s 1337H(2) Corporations Act; (2) If proceedings transferred to Supreme Court of New South Wales will GCO remain in force and be capable of being enforced by Supreme Court of New South Wales –
On auditor’s application HC ordered whole of cause pending in CA be removed into HC – HC said on proper construction of s 1337P(2) Corporations Act, provision would not operate to give legal force to GCO were Arrium class action transferred to Supreme Court of New South Wales – Arrium class action remained in Supreme Court of Victoria – Considerable risk Arrium class action would not be able to continue in absence of GCO, meaning plaintiffs' and group members' claims would have to be abandoned.
John Howard Society of Saskatchewan v Saskatchewan (Attorney-General) [2025] SCC 6 (14 March 2025)
Successful appeal from Saskatchewan CA – Inmates charged with disciplinary offences in Saskatchewan’s provincial correctional institutions had to appear before disciplinary panel to answer charges – Section 68 Saskatchewan Correctional Services Regulations, 2013 (Regulations), said standard of proof in these proceedings balance of probabilities – Standard of proof used in all disciplinary proceedings, including major offences for which sanctions could include disciplinary segregation for up to 10 days or loss of up to 15 days earned remission –
John Howard Society of Saskatchewan (Society) challenged regulations, saying presumption of innocence required standard of proof in disciplinary proceedings be proof of guilt beyond reasonable doubt – In lower courts, Society based argument only on s 7 Canadian Charter of Rights and Freedoms, which guaranteed right to life, liberty and security of person except in accordance with principles of fundamental justice – Society could not rely on s 11(d) Charter, which said any person charged with offence has right to be presumed innocent until proven guilty, because of 1990 SC decision ruling inmate disciplinary proceedings in which disciplinary segregation and loss of earned remission were possible sanctions did not engage s 11 –
Application judge said s 68 Regulations did not violate s 7 Charter, ruling neither nature of inmate disciplinary proceedings, nor severity of disciplinary segregation and loss of earned remission necessitated heightened standard of proof of guilt beyond reasonable doubt – CA agreed –
Society appealed s 7 issue to SC – Also raised, as new constitutional issue, question of whether section 68 Regulations infringed s 11(d) Charter –
SC majority allowed appeal – Ruled s 68 Regulations infringe ss 7 and 11(d) Charter as permitted imposition of imprisonment when reasonable doubt as to accused’s guilt might exist – SC previous conclusion disciplinary segregation and loss of earned remission did not engage s 11 because did not amount to imprisonment attenuated by Court’s consistent direction judges interpret Charter in generous, rather than formalistic, manner giving effect to purpose of rights guarantee in question – Infringements of ss 7 and 11(d) could not be saved by s 1 Charter, because impairment to inmates’ Charter rights not minimal – To extent s 68 Regulations permitted imposing disciplinary segregation and loss of earned remission for inmate disciplinary offence on lower standard of proof, inconsistent with Constitution and had to be declared of no force or effect – Appeal allowed.
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