New Zealand Law Society - Courts roundup 14 November - 20 November 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
L (SC 80/2023) v R [2024] NZSC 154 (11 November 2024)
Unsuccessful appeal – Concerned whether statement of proposed witness could be admitted as hearsay evidence when person outside of New Zealand and unwilling to give evidence via audiovisual link – To admit hearsay evidence under Evidence Act 2006, one requirement that “the maker of the statement is unavailable as a witness” – Under s 16(2)(b) Evidence Act, proposed witness will be unavailable if “outside New Zealand and it is not reasonably practicable for [them] to be a witness” –
Key issue raised by this appeal is in what circumstances would it not be “reasonably practicable” for overseas person to give evidence –
L faced 14 charges of sexual abuse of complainant – At trial, L intended to call C, complainant’s relative, to give evidence – Among other matters, C’s brief of evidence said she and complainant were close, complainant had denied any sexual offending against her by L and complainant wanted to find way to get rid of him –
Intention was C would give evidence remotely from Australia via audiovisual link, but L’s trial postponed due to COVID-19 restrictions – By new trial date, became clear C would not give evidence because mental health had declined and her mother told trial counsel she refused to come out of bedroom or see doctor – L’s counsel sought trial adjournment to preserve L’s fair trial rights – Granted, and new trial date set – However, C’s position had not changed and remained unwilling to give evidence via audiovisual link – Application to admit C’s statement as hearsay evidence because C “unavailable as a witness” –
Trial Judge declined L’s application saying not enough evidence that C unavailable – Trial continued without C’s evidence and L convicted on all charges – L appealed against convictions to CA saying C’s unavailable hearsay statement should have been admitted – CA dismissed appeal – SC granted leave to appeal in general terms on whether CA correct to dismiss appeal, but asked counsel to concentrate on applicability of s 16(2)(b) Evidence Act to facts of this case –
SC majority dismissed appeal, saying C not unavailable as witness under s 16(2)(b) – Said correct approach to s 16(2)(b) was contextual inquiry and required court to consider what was reasonably practicable in circumstances of each case – Primarily directed towards practicalities and associated difficulties of proposed witness who’s located overseas giving evidence, but also took account of purposes underlying general exclusion of hearsay evidence –
Applying test here, no real effort, cost or inconvenience to C in giving evidence remotely – Evidence importance finely balanced, reduced because other witnesses and forms of evidence addressed key issues in C’s statement – Appeal dismissed.
Walker v R [2024] NZSC 155 (14 November 2024)
Unsuccessful leave application – Self-represented W found in possession of 42 cannabis plants – Admitted cultivating for personal use – Charged with cultivating cannabis contrary to s 9(2) Misuse of Drugs Act 1975 – Elected trial by jury – Then challenged jurisdiction – Said entitled to diplomatic immunity – Presented Judge with card which said W Kaitiaki Diplomat – Also said W acting under tikanga and in accordance with He Whakaputanga o te Rangatiratanga o Nu Tireni (Declaration of Independence of United Tribes of New Zealand) – For good measure, but less relatedly, claimed also to be Freeman-on-the-Land –
Judge said W lacked diplomatic status and subject to Court’s jurisdiction – W entered guilty plea – Sentenced to 150 hours’ community work with 12 months’ intensive supervision – CA dismissed appeal against conviction and sentence –
W sought leave to appeal his conviction and sentence to SC – Claimed Court had no jurisdiction over him, had diplomatic immunity, invoked tikanga and customary rights and Court had to show proof W compelled to obey Misuse of Drugs Act –
SC said grounds advanced reprised those raised in Courts below – SC not to give leave unless satisfied necessary in interests of justice to hear and determine appeal – Not satisfied here – Proposed appeal raised no matter of general or public importance – No likelihood substantial miscarriage of justice might have occurred or might occur unless proposed appeal heard – Application dismissed.
Toa v R [2024] NZSC 157 (14 November 2024)
Unsuccessful leave application – T sought leave to appeal convictions for sexual violation of woman with whom had sexual connection with at party when she was heavily intoxicated –
T’s primary defence was consent – Trial Judge gave jury intoxication direction about several witnesses, including complainant – After jury sent out, defence counsel invited trial Judge to go further and give jury reliability warning under s 122 Evidence Act 2006 – Judge declined –
CA dismissed T’s appeal, saying complainant’s potential unreliability squarely before jury, not only through witnesses and counsel but also Judge, so warning would not have materially assisted –
SC not persuaded proposed appeal had sufficient prospects of success to justify giving leave – Potential unreliability of complainant’s evidence squarely before jury and they had been told to take into account when considering reliability or accuracy of her account – Application dismissed.
Shute v R [2024] NZSC 158 (14 November 2024)
Unsuccessful leave application – S sought leave to appeal against two years and two months’ imprisonment sentence following unsuccessful appeal against sentence to CA – S 18 years old at time of offending giving rise to charges of assault with intent to injure, common assault and manslaughter – Co-offender, G also charged with manslaughter – Sought leave to appeal from CA decision, saying proposed appeal raised general question about approach to sentencing for young people convicted of serious offending –
SC said proposed appeal would raise general questions about approach to youth sentencing – However, this case not appropriate to address question – Application dismissed.
Hoeberechts v Commissioner of Inland Revenue [2024] NZSC 156 (15 November 2024)
Unsuccessful application for review of Registrar’s decision – Self-represented H applied for review of Registrar’s declining filing fee waiver of $1,430.00 –
SC Judge prepared to accept proposed appeal met reg 5(2)(b)(i) as matter of genuine public interest for Supreme Court Fees Regulations 2003 purposes, though not meeting threshold for leave in s 74 Senior Courts Act 2016 – However, H provided nothing confirming cumulative requirement of reg 5(2)(b)(ii) regarding inability to pursue appeal without fee waiver – Application dismissed.
[W] v R [2024] NZCA 555
[T] v R [2024 NZCA 579] (Redacted)
[M] v R [2024] NZCA 582
[K] v R [2024] NZCA 590
[H] v R [2024] NZCA 594
Holtz v R [2024] NZCA 585
Unsuccessful appeal by H against sentence of seven years 10 months' imprisonment - Possession of methamphetamine for supply and representative charge of supply of methamphetamine - H’s offending fell into band four of Zhang v R – DC held lesser culpability could not arise because of dealing in larger quantities - Level of commercial gain – Starting point of 11 years and six months – Uplifts for other charges – 35 per cent discount for totality, guilty plea and personal factors –
Starting point within range - Must be a gross and unjustifiable disparity with co-offender to warrant appellate interference – None was shown – Background of deprivation, no connection to his Māori heritage – H’s background exhibited factors generally accepted to causally contribute to criminal behaviour – Discounts appropriate for serious drug offending – Appeal dismissed.
Keith Bullock Contracting Ltd v Genesis Residential Ltd [2024] NZCA 577
Successful appeal by KBC against HC decision declining application for summary judgment against GRL - appeal related to KBC’s Payment Claim issued under s20 Construction Contracts Act 2002 (CCA) and GRL’s Payment Schedule issued in response - Whether the judgment under appeal misconstrued the “buy now pay later” provisions of the CCA -
KBC brought a claim under s24 CCA not s23 - Section 24 CCA did not apply - There were other errors that meant the appeal should be allowed - Whether GRL validly terminated the contract could only properly be determined at trial - Determination of the timing issue did not require determination of whether GRL validly terminated the contract - No factual dispute about the timing - Whether Payment Schedule was served in time depended on the application of the proper statutory interpretation of s22(b) CCA to clear facts - Plain meaning (and purpose) of s22(b) CCA was to provide a statutory timeframe for a payment schedule if the contract did not provide a timeframe - Subparas 22(b)(i) and (ii) were mutually exclusive alternatives – Appeal allowed.
Bains v Singh [2024] NZCA 584
Partially successful appeal by B against HC decision which refused to strike out S’s defences of qualified privilege and honest opinion – S posted comments on Facebook page, which B alleged defamed him – Whether reasonably arguable publications were published on occasion of qualified privilege – Whether reasonably arguable pleaded meanings were expressions of opinion –
Qualified privilege may exist even when those with an interest in receiving the information were quite numerous – S had prominent position in Sikh community - Qualified privilege was reasonably arguable - Two of the relevant publications were poems - Reading each as a whole, with the use of metaphor and imagery throughout, the publications were clearly opinions - The other relevant publication was rhetoric rather than attempt to state facts - Pleaded meaning in relation to B being corrupt was based on B making charitable donations - Not sufficiently obvious to readers that donations were the basis of the opinion, as opposed to other possible reasons S might believe B had obtained the award corruptly – Defence of honest opinion was struck out in respect of some publications.
Casata v Minister for Land Information [2024] NZCA 592
Unsuccessful appeal by C against HC decision declining compensation for land required for public work (roading project) - C contended shadow cast by announcement cost it opportunity to sell or redevelop properties which were later acquired under the Public Works Act 1981 (PWA) - Whether landowner could claim compensation for loss attributable to inhibiting effect of proposed acquisition during “shadow period” (time between announcement of proposed public work for which land was to be acquired and completion of acquisition) -
Loss alleged was not compensable under PWA – Section 60(1)(c) PWA required physical interference with land - Difficult to see how loss caused by damage to C’s property rights during shadow period could be compensable other than in relation to the value of the land - Section 66 PWA required disturbance to land, C’s claim for loss alleged to be caused by the shadow period essentially went to value – Appeal dismissed.
Burns-Wong-Tung v R [2024] NZCA 597
Unsuccessful appeal by BWT against conviction for murder and sentence of life imprisonment with MPI of 15 years – BWT and two brothers driven to location - Deceased brought there in back of a car – BWT stabbed victim multiple times - Brothers gave statements to the police, in which they implicated BWT - At trial, both brothers contradicted their police interviews and were both declared hostile- BWT applied for mistrial on grounds brothers were not “witnesses” in terms of Evidence Act 2006 (EA) - Police interviews of brothers admitted in evidence -
Definition of witnesses in EA required that witnesses be able to be cross-examined, not that the cross-examination was effective - Witnesses were not intractably hostile from start, information favourable to BWT elicited through cross-examination - Witnesses’ hostility was matter for jury when assessing their reliability - Police interviews rightly admitted - Statements had high degree of probative value considering role of brothers - That outweighed any prejudice from their admission - Imposition of 15-year MPI correct - Starting point available - Discount provided for youth also appropriate - Dickey v R not authority for proposition that discounts of 20 per cent were available for young adults convicted of murder - BWT (23 years old) nearing end of age range where youth relevant - Appeal dismissed.
Bird v DP (a pseudonym) [2024] HCA 41 (13 November 2024)
Successful appeal from Victoria CA – In 1971, DP sexually abused by priest in Roman Catholic Diocese of Ballarat (Diocese) during pastoral visits to parents' home – Priest not Diocese employee or "agent", actions not within Diocese express or implied authorisation – Relationship between priest and Diocese, under Canon Law, permitted Diocese to exercise control over priest – Integral part of priest's role of pastoral visits to parishioners' homes –
Principal issue on appeal to HC whether relationship between priest and Diocese, in absence of employment relationship, could give rise to Diocese vicarious liability for assaults priest committed – HC said vicarious liability confined to employment relationships – HC repeatedly refused to extend doctrine boundaries to include independent contractors, or by reference to policy considerations – Said expanding doctrine to accommodate relationships "akin to employment" would produce uncertainty and indeterminacy – As priest not employee, Diocese could not be vicariously liable –
HC said Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) did not provide basis for imposing vicarious liability – Act remedied historical impediment to redressing abuse occurring in unincorporated associations, being lack of legal person capable of being sued – Did not alter substantive vicarious liability law – Employment still required –
HC unanimously declined to consider DP's further contention Diocese owed DP non-delegable duty of care – Contention not pleaded at first instance or raised in courts below and Diocese would be irremediably prejudiced if advanced for first time on appeal to HC – Appeal allowed.
Willmot v Queensland [2024] HCA 42 (13 November 2024)
Successful appeal from Queensland CA – W born in 1954 – When infant, was placed in State-operated dormitory – Between 1957 and 1959, placed in foster care, before returning to dormitory – W made four allegations – First, foster father sexually abused her on weekly to fortnightly basis between 1957 and 1959 and both foster parents regularly beat her – Second, when resident in dormitory, she was subjected to severe physical abuse – Third, when given permission to leave dormitory to visit grandmother's house at about age of six, uncle "NW" sexually assaulted her – Fourth, during similar visit at about age 13, cousin or great uncle, known as "Uncle Pickering" sexually assaulted her – W said State owed her non-delegable duty giving rise to liability in respect of each allegation –
Section 11A(1) Limitation of Actions Act 1974 (Qld), which came into force in March 2017, said action for damages relating to personal injury resulting from sexual abuse or serious physical abuse of person when child could be brought at any time and not subject to limitation period – Key issue in HC whether, in light of burdensome effect of passage of time, trying allegations would be necessarily unfair –
HC said onus of proving permanent stay should be granted lay on defendant and stay should only be ordered in exceptional circumstances – Right to fair trial deeply rooted common law right and not changed by s 11A – Section 11A created new legal context in following ways: First, no longer time bar on personal injury claims for child sexual abuse; Second, plaintiff not required to explain delay in bringing proceedings; Third, inevitably, proceedings would be commenced long after events in question; Fourth, mere passing of time, in and of itself, did not enliven power to stay proceedings for abuse of process –
HC majority said allegations concerning foster father’s sexual abuse should not be stayed, but allegations of foster parents’ physical abuse should be stayed –
HC unanimously said allegations of physical abuse at dormitory and allegations concerning NW should not be stayed, but allegations of Uncle Pickering’s sexual abuse should be stayed.
RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 (13 November 2024)
Successful appeal from Western Australia CA – Section 6A(2) Limitation Act 2005 (WA), said no limitation period applied in respect of child sexual abuse action in Western Australia –
RC commenced proceedings in 2018 alleging he was sexually assaulted and abused by officer of Salvation Army in 1959 and 1960 while resident in home Salvation Army operated – Alleged he reported abuse, whilst resident, to another officer at home –
RC said Salvation Army breached non-delegable duty to take reasonable care for his safety, as well as statutory duty of care under Child Welfare Act 1947 (WA) that he would not be harmed because of breach of Act and its regulations by Salvation Army, its servants or agents – Also said Salvation Army vicariously liable for officer's intentional torts inflicted on RC – Salvation Army applied for permanent stay of proceedings saying could not meaningfully defend proceedings because of death of potential witnesses, including alleged perpetrator before allegations raised, absence of other officers who could give relevant information and absence of documentary evidence –
Issue in HC whether Salvation Army had discharged its onus to establish there could be no fair trial of proceedings – HC allowed appeal – Applying principles addressed in Willmot case to unique facts of RC's claim, HC majority said proceedings should not be stayed – Appeal allowed.
R v T.J.F [2024] SCC 38 (15 November 2024)
Successful appeal from Nova Scotia CA – Addressed whether evidence of past violence might be relevant to offence of trafficking in persons in criminal prosecution –
From 2004 to 2012, complainant and accused in common law relationship plagued by violence and financial difficulties – Complainant, said accused persuaded her to have sex on webcam for money, dance for men and offer sexual services for money, which she did because of accused’s violence and threats towards her – Also claimed accused deeply involved in sexual services, including posting ads offering sexual services and received all money – Said this continued until she left accused in 2012 – Accused charged with trafficking in persons and receiving material benefit from it, contrary to ss 279.01(1) and 279.02(1) Criminal Code –
At trial, complainant and five other witnesses provided evidence of accused’s violence towards complainant – Trial judge acquitted accused – Accepted complainant in violent relationship with accused, but said her testimony lacked credibility – Also had reasonable doubt about accused’s ties to any prostitution enterprise – Judge considered evidence from other witnesses as backdrop, but not related to alleged offences, saying related to “past discreditable conduct” – Evidence of past discreditable conduct related to accused’s past misconduct going beyond prosecution allegations regarding offence and not normally admissible –
Crown appealed acquittals to CA saying trial judge should have considered other witnesses’ evidence about accused’s violence towards complainant – CA majority confirmed acquittals – Said trial judge wrong to conclude that accused’s violence past discreditable conduct but said error did not have significant impact on acquittals – Also said trial judge did not fail to consider all evidence – Dissenting judge would have ordered new trial, saying trial judge failed to consider all evidence and treating accused’s violence as past discreditable conduct misapprehended its nature and relevance to elements of both offences Crown needed to establish – Crown appealed to SC –
SC majority allowed appeal, set aside acquittals and ordered new trial – Said trial judge assessed evidence based on wrong legal principle by determining evidence of violence and threats of violence by accused towards complainant evidence of past discreditable conduct – This error of law hindered evidence assessment and considerably diminished evidentiary foundation relevant to essential elements of trafficking in persons offence and exploitation definition set out in s 279.04 Criminal Code – Trial judge’s error might have had material bearing on acquittals – Should be set aside and new trial ordered – Appeal allowed.
SkyKick UK Ltd v Sky Ltd [2024] UKSC 36 (13 November 2024)
Partly successful appeal from CA – Sky claimed SkyKick infringed five of its registered trademarks (SKY marks) using mark SkyKick (or minor variants) for email and cloud storage products and services – Sky chose four European Union (EU) trademarks and one United Kingdom (UK) trade mark as claim basis – EU trademark infringements allegations covered all EU, whereas UK infringement allegations necessarily confined to UK – SkyKick denied infringement and challenged validity of SKY marks –
HC, in four judgments, and following reference to EU Court of Justice, said Sky had applied for SKY marks in part in bad faith – This is because specifications included goods and services for which Sky had never intended to use marks and categories of goods and services which were so broad Sky could not have intended to use marks across their breadth – Also, specifications in some cases drawn so widely as to include all goods and services in particular classes – Sky sought very broad protection regardless of whether commercially justified – Rendered SKY marks partially invalid – Nevertheless, SkyKick's use of “SkyKick” and variations for email migration product and service (Cloud Migration) and cloud storage product and service (Cloud Backup) did infringe registrations for SKY marks so far as validity challenge had failed – HC said where goods or services identical or at least very similar, likelihood of confusion –
CA allowed Sky's appeal in part, saying had not acted in bad faith regarding goods and services on which Sky ultimately relied and so restored specifications of goods and services fully –
CA said procedure Judge adopted had been unfair – SkyKick’s appeal against infringement finding had to be dismissed – Had it been necessary, CA would have allowed SkyKick’s appeal on Cloud Migration infringement but would have rejected for Cloud Backup –
SkyKick appealed to SC – Issues concerned first, challenge to validity of SKY marks because Sky applied in bad faith, whether CA erred to reverse judge on issue and in finding procedure he adopted was unfair – Second group concerned approach HC and CA took to infringement allegation – Third group concerned impact on proceedings of UK withdrawal of UK from EU and transition period coming to end –
SC unanimously allowed appeal in part – HC entitled to find SKY marks applied for in bad faith to extent it did and CA wrong to reverse finding – HC procedure not unfair – CA right to find that because of narrowed specifications of goods and services, infringement by Cloud Migration not established; but no error made regarding Cloud Backup – Also, EU Trade Mark Regulation (EUTM Regulation) continued to have direct effect for proceedings pending before United Kingdom court designated as EU trade mark court prior to transition period end on 31 December 2020 – Appeal partly allowed.
National Union of Rail, Maritime and Transport Workers v Tyne and Wear Passenger Transport Executive T/A Nexus [2024] UKSC 37 (13 November 2024)
Unsuccessful appeal from CA – Raised questions about whether possible to rectify written record of collective agreement being not legally enforceable contract and whether employment contracts which incorporated terms of such collective agreement could be rectified – Also raised questions about appropriate parties to claim and whether employment tribunal had power to decide –
Tyne and Wear Passenger Transport Executive (Nexus), operated Tyne and Wear Metro – Nexus brought claim against two independent trade unions recognised as entitled to conduct collective bargaining on behalf of Nexus employees – Unions were National Union of Rail, Maritime and Transport Workers and Unite Union (Unions) – Collective agreements negotiated between Nexus and Unions not intended to be legally enforceable, but employment contracts between Nexus and employees contained clause which incorporated terms of collective agreements as terms of service –
In 2012, collective agreement reached between Unions and Nexus, recorded in letter saying Nexus would consolidate pre-existing entitlement referred to as “productivity bonus” into basic pay of employees, giving them higher basic salary –
Dispute arose about meaning of letter agreement – In 2015, some employees claimed against Nexus in employment tribunal (Anderson proceedings) – Anderson and other claimants underpaid because, on proper interpretation of letter agreement, effect of consolidating “productivity bonus” into basic pay to increase shift allowances calculated by reference to basic pay – Nexus denied this was correct interpretation of letter agreement – Employment tribunal upheld claim but adjourned consideration of remedy – Nexus appealed but appeals ultimately unsuccessful – No hearing in Anderson proceedings to decide on remedy had taken place because those proceedings, and other similar claims brought by other employees, stayed pending outcome of these proceedings –
In 2020 Nexus began these separate proceedings in HC seeking rectification of letter agreement – Rectification remedy which “puts the record straight” by correcting mistake in document recording transaction – Proceedings against Unions and not against any Nexus employees – Nexus claimed letter agreement as interpreted in Anderson proceedings did not accurately record common subjective intention of Nexus and Unions – Common intention said to have been consolidation of productivity bonus into basic pay would not increase shift allowances – Alternatively, Nexus claimed letter should be rectified because of alleged unilateral mistake made by Nexus to Unions’ knowledge in recording what had been agreed –
Unions applied to have claim struck out or summarily dismissed – Said: (1) Court had no power to order rectification of collective agreement which was not legally enforceable; (2) Appropriate defendants to any rectification claim would be employees, not Unions; and (3) Any claim for rectification ought to have been made in Anderson proceedings and Nexus estopped from pursuing claim, or abuse of process to do so – HC rejected Unions’ applications – On appeal, CA ruled in Unions’ favour and dismissed claim – Nexus appealed to SC –
SC unanimously dismissed appeal – Said CA considered, in seeking to have letter agreement (not legally enforceable) rectified, Nexus aiming at wrong target – Should instead be seeking rectification of individual employees’ employment contracts which incorporated letter agreement terms –
SC disagreed – No scope to say documents recording employment contracts did not accurately record what Nexus and employees intended them to say and should therefore be rectified – Employment contracts had exact effect which they were intended to have of incorporating terms of any relevant collective agreement between Nexus and Unions – If any mistake made, it was made by Nexus and Unions in failing accurately to record terms of collective agreement – Therefore, letter recording that agreement needed to be rectified – Result of incorporating letter agreement terms into individual employment contracts of employment, if letter wording rectified, terms of those contracts would change –
SC stated that CA said fact that collective agreement legally unenforceable was barrier to its rectification – Again, SC disagreed – Reason court would not normally rectify document recording legally unenforceable agreement was it would be futile to do so – This is because rectifying document would not affect any legal rights or obligations – Here, although letter agreement not itself legally enforceable, rectifying would alter legal rights and obligations: not between parties to it but indirectly between employer and employees into whose contracts letter agreement incorporated –
SC did agree with CA that Nexus brought its claim for rectification of letter agreement against wrong defendants – Proceeding against Unions and not employees improper for two reasons – First, no legal dispute between Nexus and Unions as to existence or extent of any legal right between them – Second, Nexus asking court to make order which would alter legal rights of employees without giving them opportunity to be heard – Contrary to most basic principle of procedural justice – Appeal dismissed.
Fimbank Plc v KCH Shipping Co Ltd [2024] UKSC 38 (13 November 2024)
Unsuccessful appeal from CA – Involved interpreting and applying Hague Rules, 1924 international convention for unification of rules of law relating to bills of lading and Hague Visby Rules – Hague Rules as amended by 1968 Brussels Protocol – Both Hague Rules and Hague Visby Rules provided at article III, rule 6 that carrier of goods discharged from ‘all liability’ unless claim brought within one year of date goods were delivered, or ought to have been delivered:
“In any event the carrier and the ship shall be discharged from all liability [whatsoever] in respect of loss or damage [the goods] unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered” (Hague Visby amendments in parentheses) –
In this appeal, central issue was whether time bar applied to claim for misdelivery of goods which arose after discharge from vessel – Misdelivery occurred where carrier delivered goods, without producing bill of lading, to person not entitled to receive them –
Case concerned cargo of approximately 85,510 mt of steam (non-coking) coal shipped aboard vessel "GIANT ACE" for carriage from Indonesia to India – Cargo discharged from vessel in India between 11 and 18 April 2018 – Thereafter alleged cargo misdelivered –
On 24 April 2020, arbitration proceedings commenced against carrier, claiming damages for misdelivery of cargo – More than 12 months after cargo should have been delivered – Argued Hague and Hague Visby Rules did not apply to circumstances following discharge and so claim not time-barred –
Arbitration tribunal decided claim time-barred – HC affirmed conclusion on appeal – CA dismissed appeal – Said although Hague Rules time bar did not apply to misdelivery claims following discharge, Hague Visby Rules time bar did apply – Decision appealed to SC –
SC unanimously dismissed appeal – Said if Hague Rules time bar applied to misdelivery occurring after discharge, Hague Visby Rules time bar necessarily did so given wider wording which referred to all liability “whatsoever” and to claims “in respect of goods” – Appeal dismissed.
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