New Zealand Law Society - Courts roundup 26 September - 2 October 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Marshall v R [2024] NZSC 120 (20 September 2024)
Unsuccessful leave application – M co-offender of F whose leave application declined two days previously – M’s application filed after F’s, relied on exactly same grounds and submissions – For reasons given regarding F’s application, M’s application dismissed.
Tūpuna Maunga o Tāmaki Makaurau Authority v Waru [2024] NZSC 121 (24 September 2024)
Unsuccessful leave application – Tūpuna Maunga o Tāmaki Makaurau Authority (TMA), sought leave to appeal directly to SC from HC – HC allowed W’s judicial review application challenging Te Kaunihera o Tāmaki Makaurau | Auckland Council decision to grant non-notified resource consent allowing removal of exotic trees and planting of native vegetation on Ōtāhuhu | Mount Richmond (Ōtāhuhu) – TMA has also filed notice of appeal in CA –
SC said first and second appeal grounds challenged application of principles to facts here – Third ground raised more general issues, but were not raised in HC – Not in interests of justice for SC to hear proposed direct appeal, nor are there exceptional circumstances warranting it – Application dismissed.
Deliu v Auckland District Court [2024] NZSC 122 (25 September 2024)
Unsuccessful leave application – D formerly in legal practice in New Zealand – In February 2017 charged with two charges of assault with weapon – Pleaded not guilty and elected trial by jury – In early 2018 he left jurisdiction – In April 2021 DC judge adjourned proceedings until D answered arrest warrants –
D applied to judicially review DC judge’s direction and other DC procedural rulings – Sought remedies, including declarations that rights to be tried without undue delay and to natural justice breached – HC dismissed, but for one claim – No relief granted –
CA said DC judge erred in adjourning D’s criminal proceedings indefinitely and HC erred to find otherwise – CA quashed DC judge adjournment ruling and remitted criminal proceedings to DC for reconsideration – Also declined to recall judgment –
D sought leave to appeal in part CA substantive judgment, together with costs order in recall judgment – SC said subsequently Deputy Solicitor-General (Criminal) stayed criminal proceedings against D –
SC said proposed appeal raised no matter of general or public importance, but related to particular circumstances – Application dismissed.
Whangarei District Council v Daisley [2024] NZSC 123 (25 September 2024)
Successful leave application – Approved question is whether CA correct to (1) dismiss appeal against HC finding Council liable in negligence; and (2) allow appeal against HC finding Council liable for misfeasance in public office, for which it should pay exemplary damages – Application allowed.
Austin v Roche Products Ltd [2024] NZSC 124 (25 September 2024)
Unsuccessful appeal – In 2020 A granted leave to appeal – Approved question was whether CA correct to strike out A’s claim for compensatory damages because injuries were not ordinary consequence of consuming drug, Roaccutane – In its judgment, SC said s 133(5) Accident Compensation Act 2001 applied and SC had no jurisdiction – SC also said it would dismiss A’s appeal one month from judgment date unless he applied under s 135 to reverse his grant of cover, together with applying to SC for stay of proceeding pending completion of s 135 process –
A applied under s 135 and also applied for stay to SC, which was granted – A unsuccessful in his application to reverse coverage and accepts matter is now at end – Said stay could be lifted – Stay lifted.
Teika v Te Whatu Ora Health New Zealand [2024] NZSC 125 (25 September 2024)
Successful leave application – Approved question whether CA correct to dismiss appeal – CA agreed HC right to dismiss T’s habeas corpus application, but for different reasons – Application granted.
Ratima v R [2024] NZSC 126 (26 September 2024)
Unsuccessful time extension application – In May 2016, R committed violent robbery – As it was R’s “third strike” offence, sentenced to maximum ten-year imprisonment term – Judge did not order sentence be served without parole, imposing instead five-year MPI –
In 2024, R sought time extension appeal to CA against sentence – After examining merits in detail, Court declined application – Sought leave to appeal directly to SC against HC sentence, seeking time extension to do so –
SC said leave criteria not met – No issues of general or public importance raised – No risk of miscarriage of justice – No exceptional circumstances justifying direct appeal - Application dismissed.
Cridge v Studorp Limited [2024] NZCA 483
Unsuccessful appeal against a decision that building supplies manufacturer James Hardie owed a duty of care to homeowners but dismissed all other claims - HC found homeowners had failed to prove Harditex was an inherently flawed product unable to deliver a watertight and durable house - HC satisfied Harditex worked and while capable of improvements, it was fit for purpose - Whether James Hardie owed a duty of care to homeowners - Whether James Hardie breached a duty of care under Fair Trading Act 1986 (FTA) - Whether claims were time-barred -
Court held after considering two-stage policy and proximity inquiry required, it would be just, fair and reasonable to recognise a novel duty - James Hardie owed a duty of care to homeowners - Foreseeability of harm was beyond argument - James Hardie had not breached their duty of care under FTA - When properly constructed and maintained (which could be done by a competent builder), Harditex was fit for purpose - For limitation purposes homeowners’ negligence claims were governed by Limitation Act 1950 - Cause of action accrued when damage was reasonably discoverable - Not reasonable to expect every owner of home with monolithic cladding to call in an expert to investigate whether cladding had latent defect if home was not demonstrating any well-publicised signs of weathertightness problems - Claim was not time-barred - Appeal dismissed.
O'Brien v R [2024] NZCA 476
Successful appeal by O against concurrent sentences of five years five months imprisonment imposed on representative charges of supplying methamphetamine (Class A drug) and offering to supply methamphetamine – DC classified offending as falling into the lower end of band three, or the upper end of band two, in terms of Zhang v R – O was assessed as “one man bandit” and motivated by gain and to finance methamphetamine habit – DC categorised O’s role as “significant” and set the starting point at seven years six months imprisonment - Uplift for previous drug-related offending - Discounts for guilty plea, personal factors, drug issues and EM bail -
Circumstances of O’s offending put his role into upper end of “lesser” category not “significant” – Operation involved supplying numerous individuals with the methamphetamine not dealers - Amounts supplied and offered were relatively low - Financial reward was not principal motivation – O’s addiction contributed to offending – Starting point of six years more accurately reflected O’s role - Uplift and discounts were within range - Sentence quashed - Concurrent sentences of four years, one month and two weeks imprisonment substituted.
[S] v R [2024] NZCA 480
[W] v R [2024] NZCA 455
[L] v R [2024] NZCA 457
[R] v R [2024] NZCA 474
Tana v Swarbrick [2024] NZHC 2732 (20 September 2024) Johnstone J
Unsuccessful judicial review application – Investigative process leading to T’s resignation as Green Party member lawful, authorised, fair and reasonable – HC said Overall, clear that T not pressured to resign as party member – Pressure likely to have felt related to position as MP – T not ousted from party – Application dismissed.
R v Charles [2024] SCC 29 (25 September 2024)
Successful appeal from Quebec CA – Concerned admissibility in evidence of trial witness out‑of‑court statement –
Following incident involving C and complainant at school they attended, C charged with assault with weapon, using imitation firearm and uttering threats – At trial, complainant said entered washroom and felt something on hip while washing hands – When turned around, saw pistol C was holding, being used to threaten him – Two other students present – One who testified at R’s trial, claimed to not recall events – Prosecution requested voir dire, seeking admission into evidence of witness’s out‑of‑court statement to police investigators day after –
Trial judge admitted witness’s out‑of‑court statement into evidence – Said only likely explanation for statement was its truthfulness about material aspects, given circumstances in which statement made and pistol’s seizure at witness’s residence, which judge considered corroborative evidence – C found guilty of three charges – Judge accepted complainant’s version of events, supported by surveillance video and witness’s statement – CA majority upheld trial judge’s decision to admit statement into evidence and dismissed C’s appeal –
SC majority allowed appeal and quashed convictions – Said trial judge erred to find witness’s out‑of‑court statement had required reliability indicia and admitting statement into evidence – Results of search, subsequently conducted at witness’s residence, did not meet criteria for corroborative evidence – Also, circumstances surrounding statement did not support finding that threshold reliability was established – Finally, CA majority should not have relied on complainant’s testimony, given outside voir dire, to hold threshold reliability of witness’s statement established – Appeal allowed.
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