New Zealand Law Society - Courts roundup 22 August - 28 August 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Brown v R [2024] NZSC 101 (19 August 2024)
Unsuccessful leave application – B was convicted, after jury trial, of murder of A, a two-year-old child – CA dismissed appeal against conviction - Applied for leave to appeal to SC - Proposed appeal ground that miscarriage of justice resulted from trial judge’s failure to give reliability warning under s 122 Evidence Act 2006 regarding evidence of A’s mother, T - Same ground raised in CA –
SC said appeal related to particular circumstances - No issue of general or public importance – Nothing B raised suggested CA wrong - No apparent risk of miscarriage of justice – Application dismissed.
Buchanan as Trustees of Buchanan Marshall Family Trust v Tasman District Council [2024] NZSC 103 (20 August 2024)
Successful leave application - Approved question whether CA correct to hold no duty of care owed by the respondent to trustees and trust while carrying out and making statements relating to pool inspections under Fencing of Swimming Pools Act 1987.
Reid v New Zealand Law Society [2024] NZCA 399
Unsuccessful application by R for leave appeal against a HC decision dismissing her appeal from New Zealand Lawyers and Conveyancers Disciplinary Tribunal decision which had refused R’s application for restoration - R was struck off the Roll of Barristers and Solicitors in 2015 after she was convicted of delivering contraband to a prisoner, her now-husband Liam Reid – HC agreed with Tribunal that R lacked insight into her wrongdoing; and her view of her offending was a barrier to genuine remorse, without which it is difficult to be confident about lasting change - While tikanga was an important consideration, it was not a substitute for the “fit and proper” test - R applied unsuccessfully to the HC for leave to appeal -
Leave not granted - R has not raised questions of law capable of bona fide and serious argument - Hearing the appeal not in the public interest or the interests of justice.
Solicitor’s General Reference From CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401
Referral by the Solicitor General on a question of law arising from Telford v Auckland Council [2022] NZHC 3 - T charged by the Auckland Council under s57(2) Dog Control Act 1996, being the owner of a dog that attacked a domestic animal - DC granted a discharge without conviction, but made an order for the dog’s destruction under s57(3) - On appeal, HC held a conviction was a necessary condition precedent to the making of such an order -
HC was correct to conclude that conviction of the dog’s owner is a precondition to an order for destruction being made - Section 57(2), which deals with the consequences of the commission of the offence on the owner on conviction, and s57(3), which deals with the consequences for the dog, must be read together - Section 57(2) makes it clear that the subsections are dealing with consequences flowing from conviction - Use of “offence” bears its usual meaning of “crime” and entails all the elements required for conviction - A dog destruction order is a sentence - A sentence cannot be imposed in the absence of an offence and a conviction.
Rasier Operations BV v E Tū Inc [2024] NZCA 403
Unsuccessful appeal against a decision which held Uber drivers were employees - Four Uber drivers sought declarations of their employment status in the Employment Court (EC) which granted a declaration that the drivers were employees of one or more of the appellant companies for the purposes of the Employment Relations Act 2000 (ERA) – Whether the EC erred by misdirecting itself on the application of s6 ERA, which sets out the definition of the term “employee” for the purposes of the ERA –
Applying the common law tests (control, integration, and the fundamental test) Uber exercises some control over when and where drivers log in, and when they log out, through various incentive structure – Drivers are integral to Uber’s business and are the public face of the Uber brand – Drivers are not in business on their own account - Critically, while a driver is logged into the Uber driver app, they have no opportunity to establish any business goodwill of their own, or to influence the quantity and quality of the work they receive, and the revenue from that work, except to the extent that Uber facilitates that - In respect of the four drivers, the s6 ERA test was met - Real nature of the relationship between the drivers and Uber was that they were employees of Uber at the times they were logged into the Uber driver app - Appeal dismissed.
CD v AB [2024] NZCA 402
[S] v New Zealand Police [2024] NZCA 395
[D] v R [2024] NZCA 392
H v Attorney-General [2024] NZHC 2317 (20 August 2024) Palmer J
Successful declaration applications – H and S (H) abuse survivors saying suffered while in state care – H requested access to state care records from Ministry of Social Development (MSD) which withheld or redacted parts of records under Privacy Act 1993 and Privacy Act 2020 – MSD said reports and plans ordered by and furnished to courts need to be requested from courts – H sought declarations that Privacy Acts did not provide basis for relevant government agency to withhold their own personal information from them – Issue whether claimants’ rights to access their personal information under Privacy Acts limited by specific provisions in welfare legislation and court rules – HC said no – Privacy Acts bound government agencies to respond to H’s requests – Unless court ordered specific personal information not be provided to person concerned, or another exception in Privacy Acts applied, agency required to provide information to person concerned –
Crown changed position regarding this legal issue several times – Survivors of abuse in state care could not reasonably be expected to have confidence in Crown’s word that it would abide by Court decision without formal order – HC declared H’s rights as adults, to access own personal information under Privacy Acts, in documents held by defendant agencies which were ordered to be created by courts, not limited, under s 7 Privacy Act 1993 or s 24 Privacy Act 2020 – HC also considered declarations regarding Oranga Tamariki Act 1989, Care of Children Act 2004, Children and Young Persons Act 1974, Child Welfare Act 1925, Guardianship Act 1968 and District Court (Access to Court Documents) Rules 2017 and Family Court Rules 2002.
Commerce Commission v TSB Bank Ltd [2024] NZHC 2400 (27 August 2024) Jagose J
Successful application for declarations and pecuniary penalties for breaches of ss 9C(1) and 41 Credit Contracts and Consumer Finance Act 2003 – Contravening conduct related to fees bank set in standard form consumer credit contracts without reference to Act requirements – Parties agreed bank overcharged some 42,000 customers by approximately $3.6 million – First consideration for Court imposing pecuniary penalty was nature and extent of contraventions – Bank conduct characterised as reckless because credit and default fees set without due regard to Act – Section 41 breaches serious on spectrum of relevant conduct under s 107A – Section 9C(1) breaches at lower, but significant, seriousness level – Maximum penalty for contravening conduct prescribed as $600,000 and approaches taken to pecuniary penalties in other regimes not instructive due to material differences in penalty ranges – Traditional sentencing methodology, setting starting point and adjusting for individual circumstances, adopted –
Starting point range of $3.9 million to $4.2 million – Assessed according to progressive 30 per cent bands accommodating low, moderate and high seriousness contraventions as in other penalty regimes – Contraventions located, on balance, in same range of 55-60 per cent of maximum: s 41 breaches toward higher end of moderate band and s 9C(1) breaches relating to less grave conduct with increased culpability – Concurrent approach taken to meet sentencing guidelines – No aggravating factors, although Court had regard to Commission involvement – 25 per cent discount for bank’s admitting alleged contraventions – 10 per cent discount for bank’s accountability, rehabilitation and remorse – 5 per cent discount for bank’s cooperation with Commission’s investigation – Orders for $2.47 million pecuniary penalty.