New Zealand Supreme Court

Uber drivers, employment status

Rasier Operations BV v E Tū [2024] 177 (19 December 2024)

Successful leave application – Approved question whether four Uber drivers were employees in terms of s 6 of Employment Relations Act 2000 – Parties should address not only CA reasoning but also Employment Court – Might also (to extent relevant) make submissions on changing nature of work – Application allowed.

Bill of Rights, unjustified limitations

Attorney-General v Chisnall [2024] NZSC 178 (19 December 2024)

Partly successful appeal, unsuccessful cross-appeal – Judgment about whether extended supervision order (ESO) and public protection order (PPO) regimes inconsistent with rights and freedoms affirmed in New Zealand Bill of Rights Act 1990 (Bill of Rights) –

C retrospectively subjected to PPO and more recently ESO – Sought declaration ESO and PPO regimes inconsistent with various rights in Bill of Rights –

HC issued declaration ESO regime inconsistent with s 26(2) Bill of Rights as imposed second penalty, but only when operated retrospectively – In all other instances, ESO could be justified limitation on right – HC satisfied PPO not penal in nature and therefore did not limit s 26(2) right –

CA said ESO and PPO regimes imposed second penalty – Unjustified limitation on s 26(2) right – Issued further declarations regarding ESO regime as applied non-retrospectively and entire PPO regime – CA did not address other rights C pleaded –

Attorney-General appealed to SC and C cross-appealed –

SC majority allowed appeal in part and dismissed cross-appeal – Said inconsistency with right to be free from second penalty (s 26(2)) in connection with application of entire PPO regime, but parts only of ESO regime – Appeal partly allowed, cross-appeal dismissed.

Resource management offences

Page v Greater Wellington Regional Council [2024] NZSC 179 (20December 2024)

Unsuccessful leave application – P sought leave to appeal CA decision resentencing them and declining to award costs under Costs in Criminal Cases Act 1967 – Judgment followed CA decision partly allowing appeals against convictions for offences under Resource Management Act 1991 –

Applicants wish to argue C should have opportunity to seek discharge without conviction so matter should be remitted back to DC for resentencing – Also said CA wrong to say P should otherwise have received home detention – Finally, said costs award appropriate where applicants have been put to considerable expense having convictions overturned that should never have been entered and where prosecution on notice of this from early point in proceedings –

SC said provision of sentencing guidance of type applicants consider Court should provide would comprise question of general or public importance – However, this case not appropriate vehicle to address issues – No question of public or general importance – No appearance of miscarriage of justice – Application dismissed.

Trust powers, relationship property

Cooper v Pinney [2024] NZSC 181 (20 December 2024)

Unsuccessful appeal from CA – Judgment clarifies what rights or powers in respect of assets in family trusts can properly be treated as “property” rights or interests falling within ambit of Property (Relationships) Act 1976 (the PRA) – Involved considering breadth and application of principles established in 2016 SC decision and potential impact of Trusts Act 2019 (2019 Act) on duties and rights in this area –

From late 2004 to early 2014, C in de facto relationship with P – P settlor of MRW Pinney Trust (MRWT), set up in 2005 to receive assets from earlier trust which P’s father set up – P also one of number of discretionary beneficiaries under MRWT and also held power of appointment of trustees –

Throughout relationship, C worked alongside P on farm held in MRWT – Farm and trust focus of appeal – Central proposition for C is that P’s rights and powers under MRWT give P effective control of trust assets, so those rights and powers should be treated as property for PRA purposes –

Main issue in appeal whether combination of rights and powers available to P under MRWT come within definition of “property” in s 2 PRA, which includes property as any “right or interest” – In 2016 case, SC said rights and powers under family trust could fall within that expression if they gave holder control tantamount to trust assets ownership – That, in turn, meant value of trust assets could be taken into account in determining property to be divided under PRA –

Family Court said P could deal with farm property as though his own and trust powers his property under PRA as in 2016 SC case – HC said Family Court failed to properly consider extent to which P’s powers constrained by fiduciary obligations, saying this distinguished MRWT powers from those in 2016 case – P did not therefore have control tantamount to ownership of trust assets – CA majority upheld HC decision –

SC unanimously dismissed C’s appeal – Said P’s powers under MRWT required to be exercised for proper purpose and consistently with fiduciary obligations – Distinguishable from those in 2016 case and not property under PRA – Appeal dismissed.

Subdivision, entitlements

Soroka As Trustee of The Pakau Trust v Waikato District Council [2024] NZSC 182 (20 December 2024)

Unsuccessful leave application – Concerned special scheme under Franklin District Plan offering subdivision rights to landowners who agreed to protect significant indigenous biodiversity values on land –

Dispute arose between S and Council over entitlements – Appeal over Variation ultimately resolved by consent order in which Environment Court amended Variation to attribute further 14 entitlements to one block, all of which could be applied to "receiver" properties in Auckland portion of old Franklin District –

Following appeal resolution, S applied to HC for declaration relating to entitlements – HC effectively said entitlements could not be created independently of identified receiver property –

CA took subtly different approach but reached same result as HC –

SC said issues turned on facts – No matter of public or general importance – No appearance of miscarriage of justice – Application dismissed.

Contract, misrepresentation, mutual mistake

Tadd Management Ltd v Weine and Hofmann-Body as Trustees of The Ruth Weine Family Trust [2024] NZSC 183 (20 December 2024)

Unsuccessful leave application – T sought leave to appeal CA decision on issue of common mistake under s 24 Contract and Commercial Law Act 2017 (CCLA) –

Dispute arose after T bought commercial property at auction from Trust – Initial Seismic Assessment (ISA) undertaken at trustees’ request and disclosed to T before auction – ISA rated building at 60 per cent of New Building Standard (NBS), but this turned out to be considerable overestimate – After completing purchase, T obtained two Detailed Seismic Assessments (DSAs) from two different engineering firms, which assessed NBS at 10 pe rcent and 30 per cent respectively – Post-purchase valuation considered property should be valued as bare land –

T brought proceedings in HC against trustees in misrepresentation and common mistake – Succeeded in both – HC said both parties influenced to enter into contract by mutual mistake – Building was 60 per cent NBS at sale date, when subsequent DSAs demonstrated rating incorrect – HC said trustees could not argue had no belief that building was 60 per cent NBS – Said mutual mistake essential to contract and purchaser not responsible for its content – T awarded damages of $592,000 plus cost of additional DSA and interest –
CA unanimously overturned HC on appeal – CA said ISA rating neither misrepresentation nor mistake – Rather, relevant factual representation was, in ISA, expert engineer rated building at 60 per cent NBS – Opinion rather than statement of fact –

SC said ISA initial only, subject to important reliability caveats and undertaken with reasonable care – On balance, SC not satisfied proposed appeal raised matter of general or public importance, or appearance of substantial miscarriage of justice or matter of general commercial significance, such that necessary in interests of justice to grant leave – Also not persuaded proposed appeal had sufficient prospects of success to warrant granting leave – Application dismissed.

Evidence, expert evidence, admissibility

Kuru v R [2024] NZSC 184 (20 December 2024)

Successful appeal from CA – Concerned directions on joint enterprise liability under s 66(2) Crimes Act 1961, admissibility of police expert evidence under Evidence Act 2006 and whether jury’s verdict unreasonable here – Judgment clarified law relating to expert evidence with specific reference to police expert evidence and necessary limits, qualifications and risks to be weighed in considering admissibility – Included guidance for future cases as to how such evidence should be presented to render it admissible under s 25 Evidence Act –

R, senior Mongrel Mob member, shot and killed following confrontation with members of Black Power Whanganui chapter – After jury trial, K convicted as party to R’s manslaughter under s 66(2) Crimes Act –

R staying with his girlfriend in area considered Black Power territory – Crown alleged K, Black Power chapter president, ordered, sanctioned, or authorised plan for chapter members to damage R’s property and to intimidate him, accompanied by firearms – Crown did not allege it was part of plan to injure R or any other person –

At trial, Crown partly relied on evidence from Detective Inspector S called to give expert evidence on gang behaviour – S’s evidence included president “has the final authority over all chapter business and its members” and, in his experience, “a (serious) organised gang crime against another gang would likely occur with the sanction of the president” – S also gave general evidence on gangs and Mongrel Mob and Black Power in particular – Professional experience mostly in Gisborne area –

CA majority dismissed K’s appeal against conviction – SC granted leave to appeal on whether CA correct –

SC unanimously allowed appeal on inadmissibility and unreasonable verdict grounds and entered acquittal – Appeal allowed.

Unfair trial, fundamental error

Tamihere v R [2024] NZSC 185 (20 December 2024)

Successful leave application – Approved question whether CA correct not to exercise jurisdiction under s 406(1)(a) Crimes Act 1961 to quash T’s convictions –

Leave granted in general terms, but SC particularly interested in hearing submissions on issues of principle involved in: whether trial unfair, whether there was (in light of new evidence or otherwise) fundamental error at trial and whether, in light of changes to Court case, right for CA to apply proviso to s 385(1) Crimes Act 1961, given importance of constitutional role of jury – Application allowed.

Representative action, common fund order

ANZ Bank New Zealand Ltd v Simons [2024] NZSC (20 December 2024)

Unsuccessful leave application – ANZ Bank New Zealand Ltd (ANZ) and ASB Bank Ltd (ASB) applied for leave to appeal against CA judgment – Issues in proposed appeal whether HC: (a) had power to make common fund order (CFO) in representative action; and (b) if so, whether HC should have made CFO in this case, rather than waiting until later in proceeding –

HC granted application to bring representative proceeding against ASB covering approximately 73,000 customers and another against ANZ covering some 17,000 customers – Proceedings to be “opt out” rather than “opt in” –

Application for representative order on opt-out basis and for CFO under r 4.24 High Court Rules 2016 – HC said r 4.24 general but “does not, on its face, extend to the making of a CFO”, meaning that jurisdiction to do so must be found elsewhere – Said s 12 Senior Courts Act 2016 confirmed HC retained inherent jurisdiction, including ability to control own processes – Inherent jurisdiction also “includes such powers as may be necessary to enable it to act effectively and administer justice” – Said jurisdiction for HC to make CFO in representative proceeding –

CA also said High Court Rules conferred jurisdiction on HC to make CFO – Said key objective of r 4.24 to enhance access to justice – Said commercial viability of litigation-funding arrangement enhanced access to justice – Also said good argument that CFO could be made under inherent jurisdiction –

Differing from HC, CA said access to justice best achieved through CFO being made as early as possible in proceeding such as this – Gave litigation funder degree of assurance regarding return on its investment –

SC said nothing applicants raised suggested proposed challenge to concurrent findings on jurisdiction in Courts below had sufficient prospect of success to justify expense and delay of further appeal – Application dismissed.

Self-represented litigant, further recall application

Re Slavich [2024] NZSC 187 (20 December 2024)

Unsuccessful recall application – Self-represented S applied to recall SC Judge’s judgment declining S’s application to review Deputy Registrar’s refusal to waive filing fee for proposed leave application – Application dismissed – Registrar directed not to accept for filing any further applications for recall relating to this judgment, or judgment of 31 May 2024 – Application dismissed.

The Court of Appeal judges have advised that LawPoints falls into the category of a Law Digest where a decision prohibits publication in news media or on the internet, but allows it in a law report or law digest. LawPoints will sometimes include information on such decisions, but lawyers will have to log in using their lawyer ID to view the decision. 

Request copies of other cases and articles from the Law Society Library.