New Zealand Law Society - Courts roundup 27 February - 5 March 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Students For Climate Solutions Inc v Minister of Energy And Resources [2025] NZSC 4 (24 February 2025)
Successful leave application – Approved question whether CA correct to dismiss appeal – Without limiting argument under approved question, counsel should address whether climate change considerations expressed in s 5ZN Climate Change Response Act 2002 mandatory, permissive or irrelevant considerations when granting petroleum exploration permit under s 25 Crown Minerals Act 1991, and, if considerations not irrelevant, whether decision-maker in fact gave them due consideration.
Lincoln v Attorney-General [2025] NZSC 5 (28 February 2025)
Unsuccessful leave application – Self-represented L complained twice to police in 2020 and 2022 – Related to C who L said had assaulted him and breached restraining order – Police did not prosecute C but instead issued formal warnings – L subsequently successfully brought private prosecutions against C for two breaches of restraining order –
L applied for judicial review of formal warnings – Warnings withdrawn at early stage in light of Police instructions on issuing formal written warnings, and HC decision in another case –
Despite withdrawal, L pursued judicial review – Unsuccessful in HC – HC subsequently awarded costs against L – L appealed unsuccessfully to CA decision declining judicial review costs award – L sought leave to appeal to SC –
SC said proposed appeal would reprise arguments in CA regarding warnings – Regarding costs no argument regarding principles applied – Application dismissed.
P (SC 97/2024) v R [2025] NZSC 7 (28 February 2025)
Unsuccessful leave application – Self-represented P filed notice of application for leave to appeal his sentence following unsuccessful appeal to CA – P had permanent name suppression – P’s submissions due on 24 September 2024, but no submissions filed –
On 5 December 2024, SC issued minute warning appeal would be dismissed under s 338 Criminal Procedure Act 2011 unless P filed submissions within 15 working days from date minute received –
SC received proof of service document confirming P (in prison) served with minute on 6 December 2024 – 15 working day window expired on 20 January 2025 – P not filed any submissions nor responded to minute –
Submissions more than four months out of time – Given assurance P received Court’s minute, SC satisfied leave application should be dismissed under s 338 Criminal Procedure Act 2011 – Application dismissed.
W v Attorney-General [2025] NZCA 24
M (CA657-2024) v R [2025] NZCA 27
Police v Ormsby-Turner [2025] NZCA 30
Successful appeal by Police for access to documents in relation to OT’s sentencing, following his guilty pleas to charges of wounding with intent to cause grievous bodily harm and being an accessory after the fact to murder – Police sought access to reports and affidavits held on court file - Police said they required the documents for investigation into and possible prosecution of OT and his parents for perverting the course of justice -
Interest in protecting OT’s privacy, especially because of his age - However, relatively confined scope of application sufficient to mitigate concern - Lower privacy interest in the information because granting access would not tell the Police what it did not already know - Privacy interests must yield to the interest in investigation, prosecution, and punishment of offences – Any confidentiality pierced when the statements were filed in court - Potential consequences for lying to the court were not going to chill disclosures relevant to sentencing – Appeal allowed.
Wimex New Zealand Ltd v Fuge [2025] NZCA 31
Successful appeal by Wimax against decision which required the whole of the easement area, of which the driveway was only a part, to be cleared of structures which substantially interfered with its use – Wimex erected structures that encroached on land subject to the easement but which did not obstruct the formed driveway or impede movement along it - Arbitral award in favour of Wimex because the structures had not impeded functionality of driveway overturned by HC -
No actionable interference with a vehicular right of way easement in circumstances where the encroaching structures did not substantially interfere with the grantee’s current use of the right of way - Grantor had a right to develop driveway within easement area but whole of right of way did not have to be kept clear in case of a possible development at some unknown time - Grantee of right of way easement could not insist on entirety of burdened land being kept free of all structures – An intruding structure would only be actionable if it created substantial interference with the grantee’s use and enjoyment of the right of way – Appeal allowed.
KMD v CEO (Department of Health Nt) [2025] HCA 4 (27 February 2025)
Successful appeal from Northern Territory CA – SC said CA erred to allow Chief Executive Officer of Department of Health of Northern Territory (CEO) appeal from non-custodial supervision order (NCSO) Northern Territory SC judge (primary judge) made under Part IIA, Division 5 Schedule 1 to Criminal Code Act 1983 (NT) (Code) regarding KMD –
In 2013, KMD arrested, charged with offences and found unfit to be tried – Subsequently, KMD not guilty by reasons of mental impairment and, in 2014, declared liable to be supervised under Div 5 of Pt IIA Code – Division created scheme for supervision of persons by either custodial supervision order (CSO), committing supervised person to custody, or NCSO, releasing supervised person into community –
On 3 June 2015, KMD committed to custody in correctional facility under CSO – On 12 July 2023, released into community on NCSO after primary judge, after conducting periodic review of CSO, not satisfied safety of KMD and public would be seriously at risk if she was released – NTCCA allowed CEO’s appeal against NCSO, saying primary judge's risk finding "not reasonably open" on evidence – CA set aside NCSO and confirmed previous CSO, returning KMD to custody after 12 months in community on NCSO –
HC unanimously said CA erred to say primary judge's CSO review "miscarried" because KMD did not cooperate with medical experts whose reports and evidence were considered by primary judge – Conclusion involved error because KMD under no statutory obligation to cooperate with medical experts – Having made that error, CA further erred to confirm CSO without addressing requirements of Pt IIA, Divs 5 and 7 of Code – HC allowed appeal, set aside CA orders and remitted proceedings to CA for reconsideration according to law – Setting aside had effect of restoring primary judge’s orders aside CSO and making NCSO, subject to stay for 14 day period from judgment date.
N3 v Secretary of State for the Home Department; ZA v Secretary of State for the Home Department [2025] UKSC 6
Successful and partly successful appeals from CA – Concerned lawfulness of orders depriving person of British citizenship and effect of Secretary of State (Secretary) withdrawing such orders – N3 British Citizen born in Bangladesh – E3 British citizen born in United Kingdom – Both E3’s parents Bangladeshi citizens at time of birth – In 2017, Secretary made orders depriving N3 and E3 of British citizenship on grounds they had participated in Islamic terrorist organisations and posed threat to national security – Secretary considered both N3 and E3 to be dual British-Bangladeshi nationals and depriving them of British citizenship would not make them stateless –
On 10 June 2019, E3’s daughter, ZA, born in Bangladesh – If E3 British citizen at time of her birth, ZA would also have had British citizenship by descent –
Both E3 and N3 appealed to Special Immigration Appeals Commission (SIAC) against decisions to make deprivation orders on number of grounds including that, at decisions date they no longer held Bangladeshi citizenship, and order would render them stateless – E3 and N3 argued that, under Bangladeshi law, lost Bangladeshi citizenship at age 21 –
On 18 March 2021, SIAC handed down judgment in separate cases concerning other alleged dual British-Bangladeshi nationals in similar situation to E3 and N3 – SIAC said individuals lost Bangladeshi citizenship at age 21 and depriving them of British citizenship would therefore render them stateless – In light of SIAC’s judgment, on 20 April 2021 Secretary wrote to E3 and N3 stating deprivation orders withdrawn and British citizenship reinstated – Solicitors for E3 and N3 replied to Secretary disagreeing citizenship needed to be ‘reinstated’; instead, solicitors said deprivation orders always unlawful and never existed, with result that E3’s and N3’s citizenship had always remained intact – Would also mean ZA would have had British citizenship at birth through E3 – Secretary of State replied refusing to accept E3 and N3 had been British citizens during period in which deprivation orders were in force and had not been withdrawn –
In 2021, N3, E3 and ZA sought judicial review of Secretary’s refusal to accept E3 and N3 British citizens in relevant period – Claims linked and heard together – HC dismissed claims and CA dismissed appeals – N3 and ZA appealed to SC –
SC unanimously allowed ZA’s appeal in full, and N3’s appeal in part – Said if deprivation order withdrawn to be treated as having no effect for purpose of determining individual’s citizenship status in period from date of making of order until withdrawn – E3 and N3 therefore to be regarded as having British citizenship throughout period – Consequence for ZA that ZA British citizen because of E3’s status as British citizen at time of her birth.
Brown v Ridley [2025] UKSC 7 (26 February 2025)
Case about adverse possession – B registered owner of land purchased in September 2002 (Brown land) – Mr and Mrs R (R) registered owners of neighbouring plot purchased in July 2004 (Valley View) –
Previous Valley View owner put up fence and planted hedge along what understood to be boundary between Brown land and Valley View, but which (as parties now agreed) enclosed part of Brown land as registered (disputed land) –
R used disputed land first as part garden and later as part site for erecting new house (into which they eventually moved) – Planning permission for new house granted in early 2018 – Fence and hedge removed later that year in preparation for necessary construction work –
In October 2019, B gave notice to R he considered construction work breached Party Wall etc. Act 1996 – In December 2019, R applied to Land Registry to be registered as disputed land owners saying had been in adverse possession for required period of time under Land Registration Act 2002 – B objected to application –
Land Registry referred matter to First-Tier Tribunal, which sided with R – B appealed, and won in Upper Tribunal, which considered itself bound by CA precedent – R appealed to Supreme Court via ‘leapfrog’ procedure (jumping over CA) –
Issue before SC whether ten years of reasonable belief of ownership required for registration under paragraph 5(4)(c) Schedule 6 to Land Registration Act 2002 (LRA) had to be ten years before application date, or whether it could be any ten years within adverse possession period – Mattered, because First-Tier Tribunal said R only reasonably believed owned disputed land until around February 2018, roughly 21 months before application –
SC unanimously allowed appeal – Said properly construed, words of paragraph 5(4)(c) Schedule 6 to LRA meant any ten-year period of reasonable belief sufficient.
R v Chicoine-Joubert [2025] SCC 3 (20 February 2025)
Unsuccessful appeal from Quebec CA – C-J charged with stabbing individual to death in Montréal – Following jury trial, C-J convicted of second-degree murder and assault with weapon –
On appeal before Quebec CA C-J said trial judge had erred in instructions regarding manslaughter and in answering jury’s questions, failing to mention necessary mens rea – Majority of Court of Appeal dismissed appeal – Said jury instructions correct in context of case – Since C-J conceded guilt on manslaughter charge, jury question on that offence did not require judge address it –
Although dissenting judge agreed with majority that initial instructions contained no error warranting court’s intervention, said trial judge had not fulfilled his obligation to answer questions from jurors clearly, correctly and comprehensively – Said judge did not instruct jurors on manslaughter or provide them with example –
C-J appealed to SC – SC upheld conviction and dismissed appeal.