New Zealand Law Society - Courts roundup 17 October - 23 October 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Kaye v Norris Ward McKinnon [2024] NZSC 138 (15 October 2024)
Unsuccessful recall application – Self-represented K sought leave to recall SC judgment of 23 April 2024 declining application to recall 3 December judgment – Recall sought on basis Court’s approach relied on what K said is “false assumption” regarding matters being dealt with fully and correctly –
SC said K simply seeking to reargue case with view to achieving different outcome – Did not provide very special reason for departing from important principle of finality – Nothing advanced which met test for recall – Application dismissed – Registrar is directed not to accept for filing any further documents from K relating to this matter.
Haines v Memelink [2024] NZSC 139 (16 October 2024)
Unsuccessful stay application – H sought leave to appeal two CA decisions – Sought stay under r 7.51 High Court Rules 2016 – Said once counsel became aware of r 7.51, advised to make urgent application under rule before leave application determined as, where remedy in lower court, that remedy should be pursued first – Court-appointed receivers opposed stay application –
SC accepted receivers’ submission that no direct correlation between r 7.51 application and proposed appeal to SC – Also accepted H provided no details of any matters relied on to justify any application under r 7.51 – Stay not justified – Application dismissed.
[T] v R [2024] NZCA 509
[K] v R [2024] NZCA 529
Toleafoa v R [2024] NZCA 517
Unsuccessful appeal by T against conviction for money laundering (x59) - T’s husband drug dealer - Evidence T made numerous large cash deposits into multiple ATMs across bank accounts in various names - Evidence of violence which was relevant to the effect it had on T’s relationship with her husband - Whether verdicts unreasonable – Whether Judge should have given tripartite and counter-intuitive directions - Whether some of transactions qualified as money laundering –
Ample evidence supporting inference T had knowledge of husband’s methamphetamine dealing – Jury did not have to entertain reasonable doubt as to her guilt - Crown cash flow theory supported finding of knowledge - Verdicts were reasonable – No risk of inappropriate reasoning by jury in absence of literal tripartite direction - Judge brought home to jury that T carried no onus and Crown had to prove charges - Counter-intuitive direction was not necessary - Should not be assumed that a victim of family violence would leave a relationship and that there is no typical or normal behavioural response to such violence - Evidence of her ongoing connection to husband and scale and nature of her involvement in managing his cash meant it was clearly available to the jury to find she was aware of his drug dealing - Crown not required to prove intent to conceal – Crown had to prove that T, in “concealing” her husband’s drug money, “dealt with” that money – Appeal dismissed.
Huata v R [2024] NZCA 521
Successful appeal against conviction by H for aggravated burglary and sentence – H was sentenced to nine years and two months imprisonment with an MPI of four years -
Appeal against conviction allowed – H originally charged with aggravated burglary due to alleged presence of a firearm, however pleaded guilty to burglary as part of resolution - Error required correction - Conviction for aggravated burglary set aside and substituted with burglary - Appeal against sentence allowed in part - Judge had not erred in applying guilty plea discounts to individual starting points for each set of offending - Judge erred in applying discount for personal mitigating factors to the overall adjusted starting point - Judge had not erred in applying the totality principle prior to adjusting for personal aggravating and mitigating factors - Overall sentence not manifestly excessive - Imposition of MPI by reference to overall end sentence impermissible because it resulted in an MPI being imposed that was greater than two-thirds of the individual sentences for each set of charges - Original MPI set aside.
Francis v Gross [2024] NZCA 528
Successful appeal by liquidators of Podular Housing Systems (Podular) against HC decision which held legal title to partly-completed pods remained with company but each purchaser of a partly-completed pod had an equitable lien over their respective pod to the extent of the purchase moneys paid by them - Purchasers of pods paid deposit and then instalments - Purchasers of pods not partly constructed claimed in the liquidation as unsecured creditors - Secured creditors with security interests perfected by registration under the Personal Property Securities Act 1999 and preferential creditors also claimed in the liquidation - Liquidators said that an equitable lien does not attach to a partly-completed pod, but even if there is an equitable lien, that did not entitle purchasers to be repaid in priority to preferential creditors or creditors with security interests under the PPSA -
Purchasers did not have an equitable lien over partly-completed pods - Nothing about the arrangements between Podular and purchasers that distinguished their position from other purchasers who paid deposits but whose pods had not been started - All purchasers entered into materially similar contracts, all made payments and had not received promised performance in exchange of those payments - No principled rationale which justified equity providing purchasers of partly-completed pods with a priority over other purchasers and unsecured creditors.
Iongi v R [2024] NZCA 522
Unsuccessful appeal by Manu Iongi against conviction and sentence of eight years and six months imprisonment with a minimum period of four years and three months for manslaughter – Successful appeal by Falala’angi Iongi against sentence of life imprisonment with MPI of 17 years for the murder – Victim shot in head through window – Gang element – Whether cousin’s evidence admissible under s30 Evidence Act 2006 – Whether sentences manifestly excessive -
While police’s failure to advise cousin he was no longer under arrest and free to leave the police station before he commenced making his statement was improper and contravened s22 New Zealand Bill of Rights Act 1990, the statement was correctly ruled admissible pursuant to s30 - Evidence presented was sufficient to enable the jury to infer that Manu was present when victim killed - Jury entitled to convict Manu as a party to the offence - Starting point high but within range – MPI of 17 years for Falala’angi manifestly excessive – He had not shot the victim - More proportionate approach to his offending would have been to sentence him to life imprisonment with MPI of 15 years; the same MPI was imposed on person who actually shot the victim.
Chief Executive Department of Corrections v Shaw [2024] NZHC 2976 (11 October 2024) Radich J
Reasons judgment following oral rulings regarding S’s advance directive to receive no medical treatment or intervention for duration of politically motivated hunger strike – S serving prisoner – Had been striking for 103 days – Corrections and Health New Zealand entitled to rely on and act in accordance with S's clearly stated wishes.
Shaw v Chief Executive Department of Corrections [2024] NZHC 3016 (16 October 2024) Radich J
Reasons Judgment following refusal to grant habeas corpus writ – As S continued to deteriorate, urgent hearing convened Sunday 13 October 2024 to continue relatives’ habeas corpus application, or alternatively, to pursue interim declarations under Judicial Review Procedure Act 2016 – HC ruled: Not appropriate to grant habeas corpus application to challenge imprisonment conditions; Court cautious before intervening in operational decisions in custodial environment by requiring Corrections to take positive steps; Test for interim orders in judicial review whether orders necessary to preserve applicants’ position – In all circumstances, position to not consume fluids in certain part of prison S’s decision that he could choose to change – Not comparable case with other applications for interim or urgent judicial review declarations – No identifiable position necessary to protect – Applications dismissed.
Automotive Invest Pty Limited v Commissioner of Taxation [2024] HCA 36 (16 October 2024)
Successful appeal from Full FCA – Concerned characterisation of purpose under ss 9-5(1) and 15-30 A New Tax System (Luxury Car Tax) Act 1999 (Cth) (LCT Act) –
AIP Ltd (AIPL) in business of acquiring and selling luxury and collectable cars, using technique of displaying cars in museum (museum concept) – Appeal concerned 40 cars – AIPL issued with notice of amended assessments for payment of additional adjustments, premised on assumption each car was (i) used for purpose of holding car as trading stock, and (ii) also used for additional purpose of being displayed as exhibit in car museum – AIPL objected and pursued its objection and appeal rights under Pt IVC Taxation Administration Act 1953 (Cth) – Commissioner said increasing luxury car tax adjustment as cars used for additional purpose of being displays in museum, not quotable purpose – AIPL's case was sole "purpose" for employing museum concept was as means to achieve ultimate end of selling cars –
Primary Judge said purpose of activity was end sought to be accomplished, not reasons for engaging in it – Said characterisation of purpose under ss 9-5(1) and 15-30 LCT Act "objective characterisation" – Said 40 cars being used for another purpose through museum concept, while accepting AIPL’s "primary commercial objective" to sell cars – Full Court majority upheld primary judge’s decision –
HC majority allowed AIPL’s appeal – Said identifying purpose within ss 9-5(1) and 15-30 required identification of specific ends, objects or goals which were ultimate reason or reasons taxpayer using car in particular way – Necessary to distinguish between this meaning of purpose and concepts of "motive" and "means" – Purpose subjective in sense that it belongs to subject – AIPL’s purpose was to hold cars as trading stock and museum concept only means to achieve that purpose, rather than ultimate object or end in itself – Appeal allowed.
Re application by McAleenon for Judicial Review [2024] UKSC 31 (16 October 2024)
Successful appeal from Northern Ireland CA – Concerned exercise of discretion by court asked to judicially review public regulator’s decision-making, where regulator alleges claimant had adequate alternative remedy such that judicial review should be refused –
At material time McA resided in Lisburn and Castlereagh City Council (LCCC) area and in vicinity of Mullaghglass landfill site ( Site), operated by Alpha Resource Management Ltd (Alpha) – McA said from early 2018, she and family have suffered physical symptoms, such as headaches, nausea and stomach problems, caused by odours and noxious gases emanating from Site – McA felt forced to remain inside, leading to mental health concerns –
Two regulatory regimes covered operation of Site – First, under Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (2011 Act), local authorities had regulatory powers and duties regarding nuisances occurring in their area – Section 70 said citizen who complained about nuisance emanating from land in vicinity of their property could bring private prosecution – Second, Northern Ireland Environment Agency (NIEA) regulated Site under Pollution Prevention and Control (Industrial Emissions) Regulations (Northern Ireland) 2013 (2013 Regulations) – McA said Northern Ireland Department of Agriculture, Environment and Rural Affairs (Department) also had regulatory responsibilities under 2013 Regulations –
McA complained to LCCC, NIEA and Department – Requested them to exercise powers to take action to require Alpha to manage Site more effectively and eliminate emissions which affected her property – Unsatisfied with responses, commenced judicial review proceedings – Claimed LCCC breached duties under 2011 Act by failing to conduct proper investigations into complaints and that NIEA and Department had not met responsibilities under 2013 Regulations regarding fixing emission guidelines and standards for permit under which Site operated – McA also claimed failures had infringed right to family and private life secured by Article 8 European Convention on Human Rights (Article 8) – LCCC, NIEA and Department said judicial review should be refused because McA had adequate alternative remedies, being private prosecution under section 70 or nuisance claim against Alpha –
HC said no adequate alternative remedy, but dismissed McA’s claim on merits – CA, without hearing McA’s appeal on merits, dismissed appeal, saying suitable alternative remedies against Alpha – CA said alternatives capable of giving her relief she required, namely permanent abatement of nuisance – Also conflicts of evidence between experts for each side; CA said court ought not to reach concluded view without cross-examination testing expert evidence – Not appropriate in judicial review – Regarding McA complaining about public regulators’ conduct, CA referred to McA’s right to complain to Northern Ireland Public Services Ombudsman (Ombudsman) – McA appealed to SC –
SC unanimously allowed appeal – Said private prosecution or civil claim in nuisance against Alpha did not constitute suitable alternative remedies to judicial review – Said judicial review concerned with examining whether public authority acted lawfully – Court had supervisory role only – Task not typically to resolve disputes of fact, but to determine legal question of whether public authority proper grounds for acting as did on basis of information available to it – Meant usually, judicial review claims could and should be determined without need for procedures directed to resolving disputed questions of fact, such as cross-examining witnesses –
Said CA erred to wrongly believe it had to make findings of fact (for instance, whether odours emanated from Site) and thus, that judicial review claim would need to involve civil trial with cross-examination of oral evidence from experts on each side – However, reviewing court’s role to evaluate quality of information available to defendants, in order to assess lawfulness of their conduct – No dispute about information available to defendants – Question for court whether defendant regulators did enough to justify decision (to not take regulatory action against Alpha), applying usual public law rationality standard and, regarding Article 8 claim, proportionality analysis – Civil trial model inappropriate in context – Article 8 claim did not change position – In human rights cases brought against public authorities, court’s role remained essentially to review – Appeal allowed.
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