New Zealand Law Society - Courts roundup 20 June - 26 June 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Rafiq v Chief Executive for the Department of Internal Affairs [2024] NZSC 69 (17 June 2024)
Unsuccessful recall application – Self-represented R applied to recall SC refusal to grant him leave to appeal against CA judge decision – Leave had been refused because appeal related entirely to circumstances of R’s case, no issue of general or public importance arose and standard for miscarriage of justice in civil cases not met –
SC did not accept should have granted R time extension to file submissions supporting leave application – Granted numerous extensions and warned no further extensions – He chose not to file submissions –
SC still considered grounds put forward in recall application – Related largely to errors in Minister’s decision not to grant him citizenship – R’s claim regarding that previously allowed – Nothing R put forward threw doubt on CA Judge’s assessment that prospects of success were negligible regarding refusal to award damages and make order directing Minister to grant him citizenship – Application dismissed.
Poole v R [2024] NZSC 67 (8 June 2024)
Unsuccessful leave application – Self-represented P applied in DC for leave to withdraw guilty plea to attempted sexual violation charge – Application dismissed – P convicted and sentenced to 12 months’ home detention – On 14 December 2023 CA dismissed P’s appeal against conviction, on grounds Judge should have allowed him to withdraw guilty plea – P applies for leave to appeal to SC –
SC said leave criteria not met – Proposed appeal related to particular circumstances and raised no issues of general or public importance – Case has already been subject of detailed consideration in Courts below and nothing P raised suggested decisions wrong in any material way – No risk of miscarriage of justice – Application dismissed.
Lewis v Hamilton Cosmopolitan Club Inc [2024] NZSC 68 (18 June 2024)
Unsuccessful leave application – Self-represented L brought proceedings in DC for nuisance against her neighbour, Hamilton Cosmopolitan Club Incorporated (Club) – Succeeded in part and awarded $10,000 damages –
Club’s appeal to HC allowed – Judgment for L quashed and Club’s counterclaim against L for trespass granted – HC dismissed L’s subsequent application for leave to appeal against its decision – CA dismissed L’s application to bring second appeal – Declined recall application –
L applied for leave to appeal to SC – Registry accepted as application for leave to appeal against HC decision –
SC said s 75 Senior Courts Act 2016 could not give leave to appeal directly to SC against decision of court other than CA unless leave criteria in s 74 are met and there were exceptional circumstances justifying taking proposed appeal directly – Said leave criteria not here met – Application dismissed.
Goundar v R [2024] NZSC 70 (20 June 2024)
Unsuccessful leave application – G sought leave to appeal conviction on representative assault charge of covering period between 13 October 2017 and 5 January 2018, when he and complainant shared prison cell – Acquitted on eight other charges, comprising five charges of sexual violation by unlawful sexual connection, two charges of threatening to kill and one charge of assault – Conviction and acquittals at separate trials, four trials in all –
G said verdicts at third and fourth trials could not be reconciled – Both CA and HC had rejected argument – SC accepted Crown’s contention verdicts reconcilable – No risk of miscarriage of justice – Application dismissed.
Ecomi Technology Pte Ltd v MB Technology Ltd/ Orbis Technology Ltd v MB Technology Ltd [2024] NZSC 71 (20 June 2024)
Unsuccessful leave applications – Judgment addressed two applications for leave to appeal from consolidated CA judgment – Issue whether claim in this proceeding, Orbis Action, settled under settlement agreement in related proceedings brought in Singapore and New Zealand – Singapore Action and New Zealand Ecomi Action –
Leave applications related to CA refusal to strike out one claim or grant summary judgment – HC also declined to strike out or grant summary judgment – Both Courts said settlement agreement not apt to include claim, part of Orbis Action –
SC said would entertain appeals against CA judgments refusing strike-outs only in compelling circumstances – Here no questions of general or public importance or commercial significance – Settlement agreement to be interpreted according to Singapore law – Applications dismissed.
Slavich v R [2024] NZSC 72 (21 June 2024)
Unsuccessful recall application – In judgment delivered on 16 April 2020, SC confirmed Registrar’s decision not to accept self-represented S’s correction application – Court also said memorandum of contempt should not be accepted for filing as abuse of process – S applied under r 43A(1)(a) Supreme Court Rules 2004 for correction of accidental slip or omission in judgment – Described as recall application –
SC said nothing S raised suggested errors constituting some very special reason requiring recall of judgment – Application dismissed.
Ford v R [2024] NZCA 239
Unsuccessful appeal by three appellants against convictions for wounding with intent to cause grievous bodily harm, and sentences of six years four months imprisonment each - Crown case at trial was that the appellants travelled to a property with a shotgun to intimidate the victim and, in the course of doing so, one of them had shot the victim - Crown could not prove which of the appellants had fired the shotgun - Appellants did not give police interviews nor evidence at trial and the victim was discharged without giving evidence after he was uncooperative and refused to take the oath – Would not have been appropriate for the Judge to grant permission for the victim to give evidence without taking an oath or affirmation and then to treat him as a hostile witness because there could not be confidence he would answer questions in a truthful manner - Judge correct to decline to put self-defence to the jury because the jury could not conclude there was a reasonable possibility of self-defence without speculating - Judge’s reference to “plausible and credible” rather than “plausible or credible” was of no moment as the terms are synonyms - Judge’s reference to the absence of a “narrative” not an error – Sentence starting point and consideration of aggravating features appropriate - HELD: Appeals dismissed.
M v H [2024] NZCA 243
Successful appeal by M of the HC decision dismissing her application to annul the adjudication in bankruptcy of her former partner H – Whether Judge erred in applying test when considering whether H’s application for voluntary bankruptcy was an abuse of process – Whether Judge was in error in finding that H had legitimate reasons for applying for bankruptcy – Whether Judge was in error in holding that, in order for the bankruptcy to be annulled, M had to establish that H’s sole purpose in seeking adjudication was to thwart M’s claims under the Property (Relationships) Act 1976 (PRA) – H played no part in HC hearing or this CA hearing – Official Assignee opposed M’s application and appeal – HELD: Appeal allowed – H’s substantial actuating purposes in seeking adjudication were to prevent or impede M from exercising her rights under the PRA to obtain a 50 per cent share in the family home, to make it more difficult for M to continue living in the family home with their child and to diminish the relationship property pool readily available to M - Order adjudicating H bankrupt is annulled – Costs orders.
[H] v R [2024] NZCA 249
Kim Dotcom v Crown Law Office [2024] NZCA 260
Unsuccessful application for special leave to appeal – Applicant applies for special leave to appeal a decision of the HC dismissing his appeal against a decision of the Human Rights Review Tribunal (HRRT) – CA previously found that transfers by various Ministers and government agencies of information requests made by the applicant breached his privacy and remitted the question of damages to the HRRT – HRRT declined to award damages to the applicant, as did the HC on appeal – Applicant applied to the HC for leave to bring a second appeal - Application was declined – Applicant now seeks special leave to appeal from this Court - Whether the proposed questions of law, by reason of their general or public importance or for any other reason, ought to be submitted to this Court for decision - HELD: Neither question is seriously arguable or raises an issue of general or public importance - There is no other reason suggesting it would be appropriate to grant special leave to appeal – Application declined.
[J] v R [2024] NZCA 265
R v Taylor [2024] NZHC 1612 (18 June 2024) Dunningham J
Sentencing – T pleaded guilty to one charge of manslaughter and one burglary charge – On manslaughter charge sentenced to four years 10 months’ imprisonment – Disqualified from driving for four years commencing on release – Six months’ imprisonment on burglary charge, served concurrently.
R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20 (20 June 2024)
Successful appeal from CA – Before planning permission could be granted for development project likely to have significant effects on environment, legislation in United Kingdom (and many other countries) required environmental impact assessment (EIA) to be carried out –Legislation applicable here was Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (2017 Regs), implementing European Union Directive 92/11/EU (EIA Directive) in UK – Required EIA to identify, describe and assess project’s likely “direct and indirect significant effects” on environment, including (among other factors) impact on climate (for example, nature and magnitude of greenhouse gas emissions) –
Developer applied to Surrey County Council for planning permission to expand oil production from well site in Surrey – Proposed project would involve extracting oil from six wells over 20-year period – Project came within category requiring EIA (“Extraction of petroleum … for commercial purposes where the amount extracted exceeds 500 tonnes/day”) –
Developer said regarding project impact on climate, EIA scope should be confined to direct releases of greenhouse gases from within well site boundary during project lifetime; and EIA need not include assessing greenhouse gas emissions occurring when oil from wells ultimately burnt elsewhere as fuel – Council accepted this approach – Decision granting planning permission made without assessing or taking into account emissions occurring on combustion of oil produced –
Claimant, local resident, applied for judicial review of council’s decision – Said decision unlawful because EIA was required to, but did not, include assessment of combustion emissions – HC rejected claim, saying combustion emissions not within legal scope of EIA Directive and 2017 Regs; alternatively, whether to assess them was matter of evaluative judgment for council, which had given legally valid reasons for deciding not to do so – CA majority upheld HC decision on second ground – Claimant appealed to SC –
SC three-to-two majority allowed appeal and holding council’s decision unlawful because emissions occurring when oil produced burnt as fuel within scope of EIA required by law – Appeal allowed.
Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21 (20 June 2024)
Successful appeal from CA – SC asked to decide whether HC right to strike out as abuse of process M’s claim against Home Secretary for libel and breach of statutory duty under General Data Protection Regulation – Claim concerned allegations published in Home Office Commission for Countering Extremism report entitled “Challenging Hateful Extremism” (Report) –
M born in East Bengal, which then formed part of Pakistan but now Bangladesh – In 1971, Bangladesh became independent from Pakistan following war of independence – Many atrocities committed, including abduction and murder of 18 prominent intellectuals – M left Bangladesh in December 1971, after becoming aware of allegations that member of militia said to be responsible for intellectuals’ deaths – Denied having been involved in any violence – Arrived in United Kingdom in 1973 and became British citizen in 1984 – Had held several prominent public and charitable positions in British society and helped to set up Muslim Council of Great Britain –
In 2013, Bangladesh International Crimes Tribunal (ICT) tried and convicted M in his absence for war crimes, namely murder of 18 intellectuals – Sentenced to death – ICT widely criticised internationally, including by United Nations, foreign governments and human rights organisations for failing to respect minimum fair trial guarantees and for lacking judicial independence – M’s conviction reported in United Kingdom media – Reports noted criticisms of ICT, and that M denied charges against him and maintained trial unfair and politically motivated –
In October 2019, Home Office published Report – Section entitled “What Extremism Looks Like in England and Wales” contained footnote stating links between those responsible for violence in Bangladesh in 1971 and community leadership in East London well established and referred to M’s ICT conviction – In June 2020, M issued proceedings against Home Secretary – At preliminary hearing, HC ruled words used in Report meant M “(i) was one of those responsible for war crimes committed during a 1971 War of Independence in South Asia; and (ii) has committed crimes against humanity during a 1971 War of Independence in South Asia” – HC said allegations defamatory –
Home Secretary applied to have M’s claim struck out as abuse of court’s process – HC agreed to strike out claim – CA upheld HC decision – M appealed to SC-
SC unanimously allowed M’s appeal – Said order striking out claim as abuse of process should be set aside and M permitted to pursue claim against Home Secretary at trial –
Among other things, SC said potential evidential difficulties for Secretary of State in establishing defence of truth did not render M’s claim abuse of process – M’s claim not stale and was issued promptly after Report published – M not responsible for any evidential difficulties Home Secretary might face proving allegations truth, which in any case matter of speculation – If Home Secretary would find it difficult to substantiate allegations about murders committed more than 50 years ago, should have been considered before allegations published in Report – Appeal allowed.
York Region District School Board v Elementary Teachers’ Federation of Ontario [2024] SCC 22 (21 June 2024)
Successful appeal from Ontario CA – Appeal dealt with whether Canadian Charter of Rights and Freedoms (Charter) applied to Ontario public school boards –
Two teachers employed by Ontario public school board recorded private communications regarding workplace concerns on shared personal, password-protected log stored in cloud –
School principal, who had been made aware of log, entered one of teachers’ classroom to return some teaching materials after classes ended – Teacher not present – Principal noticed Board laptop teacher used was open and touched its mousepad – Saw log that opened on screen, read what was visible, then scrolled through document and took screenshots with his cell phone – Communications then formed basis for school board to issue written reprimands –
Teachers’ union filed grievance against written reprimands issued to teachers, claiming search violated teachers’ right to privacy at work – Did not allege any Charter breach – Labour arbitrator, appointed under collective agreement, dismissed grievance – Said no breach of teachers’ reasonable expectation of privacy when balanced against school board’s interest in managing workplace –
Teachers’ union asked Divisional Court to review arbitrator’s decision – Divisional Court majority said arbitrator’s decision reasonable – Said school principal’s search did not raise any Charterissues because, unlike in criminal context, employee did not have right under s 8 Charter to be secure against unreasonable search or seizure in workplace environment –
Teachers’ union appealed to Ontario CA, which unanimously allowed appeal and quashed arbitrator’s decision – Said Divisional Court majority mistaken to conclude s 8 Charter did not apply – CA said school boards subject to Charter and school principal’s search unreasonable under s 8 – School board appealed to SC –
SC majority dismissed appeal – Said s 8 protected Ontario public school board teachers in workplace, as boards inherently governmental for s 32 Charter purposes – Section 32 identified certain entities Charter applied to, including federal and provincial legislatures and governments and government-controlled entities or entities performing governmental functions – Consequently, grievance at issue implicated alleged violation of Charter right and s 8 Charter legal constraint bearing on arbitrator’s analysis –
On review, applying correctness standard, arbitrator erred by limiting her inquiry to arbitral framework without regard for legal framework under Charter that, as matter of law, she was required to respect – Error fatal and arbitrator’s decision should be set aside – Appeal allowed.