New Zealand Law Society - Courts roundup 24 October - 30 October 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
S (SC 75/2024) v R [2024] NZSC 140 (20 October 2024)
Unsuccessful leave application – S pleaded guilty to sexually offending against partner’s younger sister when she was 13 to 14 years old – S aged between 22 and 24 at time – DC sentenced S to 28 months’ imprisonment –
Appealed sentence saying Judge gave insufficient credit for personal mitigating factors, including youth, remorse and mental health and sentence disproportionately severe in terms of s 8(h) Sentencing Act 2002 – Appeal thrust sentence of less than 24 months should have been imposed, opening possibility of non-custodial sentence – Appeal failed, CA saying sentence not manifestly excessive – Sought leave to appeal to SC –
SC said leave criteria not met – Two arguments potentially raised issues of general importance, but this case not appropriate place to raise them – Neither raised in CA – Success prospects insufficient – Application dismissed.
Sharma v Auckland Council [2024] NZSC 141 (22 October 2024)
Unsuccessful leave application – S pleaded guilty to two charges under Dog Control Act 1996 (Act): owning dog that attacked domestic animal; owning dog and failing to comply with effects of menacing classification – Sentence imposed included, amongst other matters, order for destruction of S’s dog – Judge rejected S’s argument, in terms of s 57(3) Act, “the circumstances of the offence were exceptional and [did] not warrant destruction of the dog” –
HC dismissed appeal against destruction order – S unsuccessfully applied for leave to appeal to CA – As no right to seek leave to appeal from latter decision, S sought leave to appeal directly to SC from HC –
SC said granting leave for direct appeal from HC required S to satisfy in interests of justice for Court to hear and determine appeal and there were exceptional circumstances justifying direct appeal – Proposed appeal did not meet threshold – Application dismissed.
Maheta v Griggs [2024] NZSC 142 (23 October 2024)
Unsuccessful leave application – Self-represented M in Employment Court proceedings over dispute with former employer – Sought leave to appeal to CA against Employment Court decision – Employment Court granting his then lawyer, G, leave to withdraw as counsel in those proceedings – CA dismissed application on 19 June 2024 – CA awarded costs to G and M’s former employer – Employer had originally been named as first respondent and sought costs incurred for work up until it was removed as respondent – M sought leave to appeal to SC –
SC said had no jurisdiction to entertain application for leave to appeal against CA judgment declining leave to appeal – In any event, leave criteria not met – Proposed appeal related to particular circumstances of M’s case and raised no issue of general or public importance – No risk of miscarriage of justice – Application dismissed.
Anura Ltd v Sealegs International Ltd [2024] NZCA 538
Successful appeal by Anura against a decision declining their strike out application – Sealegs made boats with amphibious systems – Anura and fourth appellant made amphibious systems for attaching to boats - Sealegs obtained an interim injunction preventing appellants from making or selling amphibious systems - Gave an undertaking as to damages - Sealegs initially said it would also bring claim for breach of patent, but confined proceeding to claim for breach of copyright - Sealegs succeeded in its copyright claim, but set aside on appeal -Appellants brought proceeding to enforce Sealegs’ undertaking - Sealegs filed statement of defence and counterclaim alleging breach of patent and no damages owing - Whether the claim or defence should have been raised earlier and whether abuse of process to raise it now -
Sealegs should have brought its current patent claim in or with the earlier proceeding – It was an abuse of process for it to now bring the claim - Sealegs was suing the appellants in respect of the same acts as in the earlier copyright proceeding - That engaged the concerns which underlie the principle in Henderson v Henderson (1843) 3 Hare 100 - Bringing proceedings by instalments was oppressive to the appellants, in that they have to face the cost and stress of responding to claims in two proceedings when one proceeding would have done - It is also wasteful of scarce judicial resources.
Sinclair v R [2024] NZCA 534
Unsuccessful appeal by S against his conviction for the murder of his 10-month-old child - Application to adduce evidence from two experts, a consultant paediatric neurosurgeon and consultant paediatric neuroradiologist - S maintained child had fallen down stairs - Scans revealed child suffered significant injuries to his brain - Doctors also observed multiple previous injuries over child’s body - S submitted expert reports provided injuries suffered could have occurred accidentally, identifying a single case report in which an infant who had fallen down the stairs had strikingly similar injuries - Whether S’s right not to disclose a defence was breached when the prosecutor commented on his failure to disclose his explanations for child’s previous injuries -
Application to adduce fresh evidence should not be granted - Proposed evidence was not fresh in that it could have been adduced at trial - Evidence not cogent, it didn’t add to evidence given by experts at trial, whose evidence was substantially similar – Right not to disclose a defence was confined to situations where the defendant failed to disclose a defence before trial in relation to the charge or charges they were facing - S faced murder charge - While previous injuries were relevant from a propensity perspective, they were not the subject of criminal charges – Appeal dismissed.
Bracey v R [2024] NZCA 533
Successful appeal by B against sentence of eight years' imprisonment for wounding with intent to cause grievous bodily harm – Victim was new partner of B’s former girlfriend – B attacked victim with a hammer - Whether the sentence was manifestly excessive because sentencing Judge erred in accounting for the aggravating features of the offending -
In assessing starting point, care must be taken not to double count the aggravating factors - Offending was premeditated – While B used weapon and sought to attack victim’s head, those factors not present to a high degree - Serious injury was present only to a low to moderate degree - Victim was not vulnerable - Appropriate starting point was in the middle of band two in R v Taueki, being seven years and six months' imprisonment – Discounts for prior good character and time spent on EM bail remained – Sentence of six years and six months' imprisonment is substituted – Concurrent sentence of nine months’ imprisonment on the charge of possession of an offensive weapon remained.
Hall v R [2024] NZCA 532
Partially successful appeal by H against sentence of 12 years and six months' imprisonment, with MPI of five years for his leading role in drug offending involving methamphetamine (no less than 3 kg), MDMA (no less than 4.257 kg and an unknown quantity of pills) and cannabis (no less than 56.47 kg), as well unlawful possession of a firearm and other lesser offending –
MPI of 40 per cent set aside - 15 year unadjusted starting point for the lead methamphetamine offending too high given there were two proven offers to supply 3 kg of methamphetamine, which were incidental to the main operation of supplying MDMA and cannabis - 18 year adjusted starting point available because three year uplift for the remaining offending was generous given: the significant quantity of drugs; the operation’s commerciality; the use of Airbnb premises for packaging, storage and dealing; the firearms offending; that there was no additional uplift for the further offending while on electronically monitored bail; and that those aspects would have attracted significant separate sentences but for totality considerations - 10 per cent guilty plea discount was appropriate - H relatively young (aged 29 at the time) with a relatively limited criminal history, a background of mental health issues and trauma, and had taken rehabilitative steps - Sentence length, coupled with the default MPI, was sufficient to denounce and deter the offending - Appeal against sentence otherwise dismissed.
Commissioner of Police v Salter [2024] NZHC 3069 (21 October 2024) Downs J
Approval of settlement agreement under Criminal Proceeds (Recovery) Act 2009 – SC Ltd (company) collected and processed used oil; supplied fuel oil produced from used oil; and stored hazardous substances – S company’s founder, managing director and chief executive owned half of shares – Wife owned other half, also director –
On 15 September 2015, large tank exploded at company’s premises – B, 24-year-old working near top of tank, killed –
Following investigation – WorkSafe prosecuted S and company for breaching: (a) Health and Safety in Employment Act 1992 and (b) Hazardous Substances and New Organisms Act 1996 – Each pleaded guilty to six charges, three under each Act –
Following settlement S and company ordered to meet profit forfeiture order of $4 million relating to benefits from significant criminal offending – Offending confined to convictions already entered against them with one additional incident: contravening WorkSafe prohibition on 16 October 2015.
CAO v Secretary of State for the Home Department [2024] UKSC 32 (23 October 2024)
Successful Home Secretary appeal from Northern Ireland CA – Concerned meaning and effect of section 55 Borders, Citizenship and Immigration Act 2009 (section 55), interaction of section 55 with article 8 European Convention on Human Rights (article 8) and interaction of decision-making procedures in immigration context by Secretary of State (Secretary) and tribunal on appeal from Secretary – Both section 55 and article 8 concerned with safeguarding and promoting welfare of children, including when decisions made regarding immigration status –
Section 55(1) placed duty upon Secretary to ensure any functions relating to immigration discharged had regard to need to safeguard and promote welfare of children – Ancillary duty in section 55(3) specifying any person exercising immigration functions, which included officials at Home Office acting on behalf of Secretary, had to have regard to guidance Secretary issued (Guidance) – Article 8 provided right to respect for private and family life, which also protected welfare of children – Where immigration decision affected child, article 8 required best interests of child be treated as primary consideration, albeit not only one –
CAO Nigerian national who arrived in United Kingdom on 25 September 2018 with son (then aged 16) and daughter (then aged 12), also Nigerian nationals – On 8 November 2018 applied for asylum for herself and children – In asylum application, CAO said husband subjected her to domestic abuse and had been making efforts to take daughter in order to subject her to female genital mutilation (FGM) – Said to protect daughter, tricked husband into consenting for her to take children on holiday to UK – CAO said husband would be able to track her and children down were they returned to Nigeria –
In decision letter dated 10 April 2019 (Decision Letter), Secretary refused CAO’s asylum application – Not persuaded real risk of domestic abuse, since CAO long separated from husband and could evade him or avail herself of police protection if returned to Nigeria – Nor was Secretary persuaded real risk of FGM for CAO’s daughter – Reasons included CAO had not discussed FGM with husband for 12 years, did not appear to be culturally important for him and family could relocate and evade him or avail themselves of police protection if returned to Nigeria –
Decision Letter contained part headed ‘Section 55 Consideration’ where Secretary considered impact of decision on well-being of children, having regard to best interests – Various factors taken into account and considered would be in best interests to be returned with CAO to Nigeria as family unit – Letter did not mention section 55(3) or Guidance – CAO exercised right of appeal to First-tier Tribunal (FTT) under s 82(1) Nationality, Immigration and Asylum Act 2002 – In 25 February 2020 decision FTT said CAO did not have sound basis to claim asylum – FTT accepted CAO had been subject to domestic abuse, but no real risk would be continued and not satisfied husband wanted to subject daughter to FGM – In appeal to FTT, CAO did not complain about lack of reference in Decision Letter to section 55(3) and Guidance – FTT held best interests of children to remain with mother and return to Nigeria –
CAO unsuccessfully sought permission to appeal to Upper Tribunal – CAO changed legal team and brought judicial review proceedings to challenge Upper Tribunal’s permission refusal – At this point CAO complained Secretary of State failed to comply with section 55(3) and Guidance and FTT had erred in law by failing to take into account – Permission refusal quashed by consent and Upper Tribunal reconsidered application for permission to appeal – Granted permission, but on considering merits dismissed appeal on grounds FTT had made no error of law –
CAO appealed to Northern Ireland Court of Appeal (NICA) – NICA said Secretary’s failure to refer expressly in Decision Letter to duty under section 55(3) and Guidance meant inference had to be drawn that Secretary breached that duty – Meant unlawful interference with children’s article 8 rights, in particular her daughter, which had not been remedied by FTT or Upper Tribunal – NICA allowed CAO’s appeal and ordered FTT to reconsider appeal – Secretary appealed to SC –
SC unanimously allowed appeal – Said FTT committed no error of law in decision – Applied article 8 properly, as it was required to do and had regard to best interests of CAO’s daughter as primary consideration –
Said appeal to FTT against Secretary’s refusal of asylum application is full appeal – Meant FTT itself required to determine merits of any claim made by person appealing, on basis of evidence adduced in FTT itself and having regard to circumstances applicable at time of hearing in FTT – Different from judicial review or appeal confined to error of law, where object is check whether original decision-maker made error of law on basis of evidence available to them at time – In human rights appeals, FTT is new primary decisionmaker –
Generally, FTT not required to conduct inquiries and entitled to assume parent representing child has produced relevant evidence – Does have duty as decision-maker to make inquiries where obviously required – For example, if decision affected child and no attempt at all had been made to consider best interests, would be obvious omission and FTT would be bound to investigate to make sure proper consideration given to issue –
SC said critical issue whether FTT complied with article 8 – Said FTT correctly treated best interests of CAO’s daughter as primary consideration – By own fair procedure, FTT satisfied procedural aspect of article 8 – Decision “in accordance with the law” within meaning of article 8(2) – SC restored Upper Tribunal order – Appeal allowed.
Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 (23 October 2024)
Unsuccessful appeal from CA – Law on tort of negligence draws fundamental distinction between liability for acts and omissions or between making matters worse and failing to confer benefit – In general, subject to exceptions, no duty of care and hence no liability in negligence for failing to confer benefit, which includes failing to protect person from injury, as opposed to making matters worse – Issues here acute form where boundary lay between making matters worse and failing to protect person from injury –
Facts assumed to be true for appeal purpose – At approximately 4.30am on 4 March 2014, K skidded on patch of black ice on road – Lost control of car which rolled into ditch – Called emergency services and police and ambulance came to scene – K taken to hospital – Police removed accident debris from road and then left having removed “police slow” sign they had put up – Did not do anything about black ice –
Approximately 20 minutes later, B lost control of car on same area of black ice – Skidded into head-on collision with T’s car – Both B and T killed –
T’s widow brought claim against Chief Constable of Thames Valley Police, alleging police liable in negligence for husband’s death – Police applied to have claim struck out as disclosing no valid claim in law or alternatively for summary judgment on ground claim had no real prospect of success – Police applications failed before first instance judge, but succeeded in CA – T appealed to SC –
SC unanimously dismissed appeal – On assumed facts, police intervention did not give rise to any possible liability for making matters worse and none of possible exceptions to general rule no duty of care to protect person from injury could be made out – Appeal dismissed.
Oakwood Solicitors Ltd v Menzies [2024] UKSC 34 (23 October 2024)
Successful client appeal from CA – Appeal concerned circumstances where solicitor’s client may apply to court for assessment of solicitor’s bill of costs – Court had power to assess costs solicitors billed clients to ensure costs reasonably incurred and reasonable in amount – Power in s 70 Solicitors Act 1974 (1974 Act) – Under statutory scheme, stricter time limits applied where had been “payment” of bill and, in particular, under s 70(4) no right to apply for assessment 12 months after payment – Issue on appeal what “payment” meant –
M (Client), in road traffic accident and suffered serious injuries – Instructed Oakwood Solicitors Ltd (Solicitors) to pursue damages claim for personal injury – Entered into conditional fee agreement (CFA) whereby agreed Solicitors would take balance of its basic charges; its success fee; insurance premium; disbursements; and VAT, from compensation money received subject to 25 per cent cap – Client would receive remainder of compensation money – Client then accepted offer of £275,000 to settle personal claim –
Following settlement, on 11 July 2019, Solicitors issued “Final Statute Bill” to Client, which said “total fees” were £73,711.20 – Bill said: “unless otherwise stated in the covering letter, the total charge has been deducted from your damages, as agreed” –
On 1 April 2021, Client applied to Sheffield District Registry for assessment of Final Statute Bill – Costs Judge decided “payment” occurred when Solicitors initially deducted fee from compensation money and, because that was over 12 months previously, Client barred from seeking assessment under s 70(4) 1974 Act – Client appealed to HC which allowed appeal saying had been no “settlement of account” which would have allowed Solicitors’ deduction to be treated as “payment” within meaning of 1974 Act –
Solicitors appealed to CA, which allowed appeal, ruling that Client agreed to CFA meant no formal agreement to amount Solicitors ultimately deducted or settlement of account was necessary – Client appealed to SC –
SC unanimously allowed appeal – Said word “payment” not term of art but most obvious example of payment of solicitor’s bill is situation where bill is rendered and then paid by client transferring money to solicitor – By making transfer client accepting and agreeing to amount charged in bill which rendered – Payment might also be made by means of authorised deduction from monies held – Such payment would only correspond with most obvious example of payment if similarly agreement as to amount to be paid in respect of bill – Would provide consistent meaning to what is required for payment –
SC said authorities showed long established understanding as to what payment by deduction or retention required both generally and with specific reference to s 70 and its statutory predecessors – Need for settlement of account consistently stated in cases from 1845 – Required agreement sum taken, or to be taken, by way of payment of bill of costs – Might in appropriate case be inferred from parties’ conduct and, in particular, from client’s acceptance of balance claimed in delivered bill – Authorities provided strong support for Client’s case of need for agreement as to amount to be paid in respect of bill of costs and that mere delivery of bill did not suffice – SC considered practical implications of acceptance of Client’s case and rejected Solicitors’ case that would have serious practical repercussions for solicitors’ practice management in modern conditions – Appeal allowed.
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