New Zealand Law Society - Courts roundup 28 November - 4 December 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Solicitor-General’s Reference (No 1 of 2024) from CA 441/2023 ([2024] NZCA 318) [2024] NZSC 160 (27 November 2024)
SC granted leave to Solicitor-General to refer following questions of law (arising from Nikoloff v R [2024] NZCA 318) to SC under s 317 Criminal Procedure Act 2011: Was defect in leave given on behalf of Attorney-General able to be remedied or rectified by instrument of ratification? - Was trial at which N convicted nullity?
A, B and C v D and E Ltd as Trustees of Z Trust [2024] NZSC 161 (28 November 2024)
Unsuccessful appeal from CA – Appeal concerned whether, and in what circumstances, relationship between parent and children recognised as fiduciary –
Father R abused A, B and C in most shocking way, when were children – A sexually and emotionally abused – B and C physically and emotionally abused – After leaving home as teenagers, A, B and C had virtually no contact with R – However, continued to suffer as consequence of abuse –
On 22 December 2014, some 30 years after contact with A, B and C ceased, R settled Z Trust (Trust) – Trust beneficiaries included children and grandchildren of R’s long-term friend – A, B and C not Trust beneficiaries – R’s home gifted to Trust on 22 December 2014 – Further gift of shares made on 27 January 2016 – At date of HC hearing, assets transferred to Trust worth approximately $700,000 –
R died in April 2016 – Will made no provision for A, B and C – In December 2016, claimed under Family Protection Act 1955, seeking to be provided for out of R’s estate – With home and shares transferred to Trust, R’s remaining estate only worth about $47,000 –
In July 2018, A, B and C began claim against Trust trustees – Essentially sought to unwind asset transfer to Trust so assets fall within Family Protection Act claim scope – Claim put on hold pending rulings here –
A, B and C pleaded several causes of action – Appeal focus, however, claim based on breach of fiduciary duty – A, B and C claimed R owed them fiduciary duties at time he transferred assets to Trust – R breached duty, deliberately deprived A, B and C from meaningful claim against estate – Claimed trustees received assets knowing assets transferred in breach of R’s fiduciary duties – Sought order trustees held assets as constructive trustees for R’s estate –
HC upheld claim and granted order sought – CA allowed trustees’ appeal, saying (unanimously) no fiduciary duties owed to B and C at time assets were transferred to Trust and (majority) said no fiduciary duties were owed to A at time –
A, B and C appealed to SC – SC unanimously dismissed appeal – Said no fiduciary relationship between R and A, B and C at time assets transferred – Said fiduciary relationship between R and A, B and C during childhood and while they lived with him – Relationship was fiduciary due to extent of control and decision-making power R had in respect over them – R required to refrain from using control in way which fundamentally violated parent and child relationship – Common ground R’s actions in physically abusing B and C and sexually abusing A meant R breached fiduciary duties –
However, SC said fiduciary relationship ended when R ceased to have caregiving responsibilities of children (most likely when A, B and C left home as teenagers) and certainly by time they became adults – Appeal dismissed.
O’Neill v Privacy Commissioner [2024] NZSC 162 (28 November 2024)
Unsuccessful leave application – Self-represented O applied for leave to appeal against CA striking out two appeals – HC previously struck out two separate judicial review applications, ruling proceedings abuses of court process –
CA said O made allegations against HC Judge of “criminal and/or corrupt conduct” – Said allegations sufficient in themselves to constitute abuse of process and justified appeals being struck out – O also made several specific complaints – CA said no complaint capable of sustaining appeal –
SC said nothing O raised suggested CA wrong to say appeals were abuse of process – Not in interests of justice to grant leave – Application dismissed.
Haines v Memelink [2024] NZSC 163 (28 November 2024)
Unsuccessful leave application – H sought leave to appeal two CA decisions: (a) decision not to extend time to file civil appeal; and (b) refusal of application to recall that judgment –
SC said matters H wanted to raise related to particular circumstances of case and raised no issue of general or public importance – Nor did anything raised suggest CA erred – No risk of miscarriage of justice – Application dismissed.
Whakatōhea Kotahitanga Waka (Edwards) v Attorney-General [2024] NZSC 164 (2 December 2024)
Successful Attorney-General appeal from CA – First of two judgments relating to claims to customary rights in harbours, river mouths, beaches and seascape of eastern Bay of Plenty – Judgment addressed meaning of s 58 Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) – Section 58 laid out test to be met to obtain customary marine title (CMT) in common marine and coastal area, previously referred to as foreshore and seabed – Section 58 meaning issue arose primarily on Attorney-General’s appeal – Second judgment to address remaining issues from seven appeals, including fact-specific issues arising –
Under MACA, common marine and coastal area could not be owned and public fishing, navigation and access rights within area protected – However, iwi, hapū and whānau groups could apply to have customary rights in common marine and coastal area recognised by two types of recognition orders: CMT orders, which recognised customary interests meeting s 58 test and PCR orders, relating to activity, use or practice meeting s 51 test – Applicant groups could apply to HC for recognition orders or negotiate with Crown for recognition –
Key issue in this judgment was correct interpretation of s 58 MACA when determining whether court should grant CMT – Section 58 test had four key elements, meaning of which formed judgment basis – Asks whether applicant group:
1. “holds” relevant area “in accordance with tikanga”;
2. had “exclusively used and occupied” area;
3. had exclusively used and occupied area “from 1840 to present day without substantial interruption”; and
4. title to relevant areas had not been “extinguished as a matter of law” –
On 7 May 2021, HC made various PCR orders and three CMT orders in favour of certain applicants – However, on 18 October 2023, CA ruled HC should reconsider two CMT orders – CA divided on s 58 meaning – Several parties appealed to SC –
SC unanimously allowed Attorney-General’s appeal on correct s 58 interpretation – Said meaning of use and occupation “without substantial interruption” was key issue dividing parties – SC said CA majority erred by taking unduly narrow approach – More generally, its three-stage test did not adequately address MACA’s reconciliatory purpose – Given importance of correct statement of test, SC allowed Attorney-General’s appeal on this point so Court could state appropriate s 58 test afresh reflecting text, purpose and legislative history of MACA –
SC said MACA’s text and legislative history showed Act’s purpose to recognise competing interests over locations within marine and coastal areas - Reconciling prior rights guaranteed under Treaty of Waitangi | Te Tiriti o Waitangi with long-held rights and expectations of other New Zealanders in marine and coastal area – Incorporating these competing interests, SC identified four baseline premises which underpinned MACA – These were:
• removal of Crown ownership in common marine and coastal area;
• revival of Māori customary interests removed under previous legislation;
• protection of vested property rights and expressly authorised activities in marine and coastal area; and
• protection of expectations of public’s access to, and activities in, marine and coastal area –
SC said MACA’s reconciliation of rights and interests through these four baseline premises and associated machinery provisions for resolving factual issues arising in CMT applications, all informed interpretation of four key elements of s 58 earlier identified – Appeal allowed.
[E] v Minister of Immigration [2024] NZCA 627
Kaimai Properties Ltd v Queen Elizabeth II National Trust [2024] NZCA 616
Unsuccessful appeal by KPL against HC decision declining applications for judicial review, declarations, and other relief – KPL challenged the legitimacy of a Queen Elizabeth the Second (QEII) open space covenant which was administered by the first respondent – It was established on land they now owned which was adjacent to a quarry they operated - KPL want to expand their quarry activities into the area subject to the covenant –
Requirements of natural justice are flexible - Duty to conduct inquiries into possibility of other relevant interests in land would impede legislative policy of Queen Elizabeth the Second National Trust Act 1977 – No natural justice or other duty for the QEII Trust to make such inquiries, and there was no breach of any duty to the appellants – Appeal dismissed.
MacDonald v R [2024] NZCA 618
Unsuccessful appeal by M against a sentence of five years and two months' imprisonment on a range of dishonesty, drug, aggravated burglary, and assault charges (persons in a family relationship, by strangulation, and with a weapon) – guilty pleas - history of family violence aggression against a dysfunctional background of childhood neglect, physical and sexual abuse, and drug and alcohol abuse –
Overall offending against the victims fell within the highest level of offending under s 189A Crimes Act – premeditation and planning, victims were vulnerable, aggravated violence – Six year starting point warranted - Discounts for M’s background’s contribution to his constrained choice to avoid offending and remorse appropriate – Discrete discount should have been given for M’s rehabilitative steps and prospects – However, end sentence within range – Appeal dismissed.
Watson v R [2024] NZCA 625
Unsuccessful appeal by W against conviction for aggravated robbery as being against the weight of the evidence before the jury – W argued there was “insufficient nexus” between the violence and the thefts at the address, meaning elements of charge were not established –
Artificial and unrealistic to contend qualifying “nexus” between the violence and theft not available - Victims violently assaulted and threatened, confined when assailants removed contents - Open to jury to conclude actual violence meted out to victims served as a threat of further violence, and that implicit threat was used to obviate any risk of resistance to the theft – Appeal dismissed.
Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan [2024] SCC 39 (27 November 2024)
Unsuccessful appeal from Quebec CA – SC affirmed Quebec breached good faith requirements and principle of Crown honour principle carrying out agreements on police services in Indigenous community –
Canadian and Quebec governments and Pekuakamiulnuatsh Takuhikan, band council representing Pekuakamiulnuatsh First Nation, entered into successive tripartite agreements on police services in Mashteuiatsh community in Quebec – Agreements had three main purposes: to establish and maintain Indigenous police force, Sécurité publique de Mashteuiatsh (SPM), providing services adapted to Indigenous community of Mashteuiatsh; to set maximum financial contribution from Canada and Quebec to SPM’s operation; and to entrust SPM management to band council – Contracting parties included clause permitting renewal of agreements to ensure maintenance of police force over time –
Between 2013 and 2017, government funding provided for in agreements proved to be inadequate on its own to ensure SPM maintenance – SPM had operating deficit at end of each fiscal year – Consequently, band council had to assume deficits totalling $1,599,469.95 – Council brought legal proceedings claiming reimbursement of accumulated deficits from Canadian and Quebec governments – Council rested its claim on two main bases: contractual basis under private law, grounded in provisions of Civil Code of Québec and public law basis anchored in principles of Aboriginal law – Council alleged Canada and Quebec refused to genuinely negotiate agreements’ funding clauses, breached both good faith requirements and obligations flowing from Crown honour –
Trial judge dismissed council’s application, saying contract was law of parties and Crown honour did not apply – CA set judgment aside and ordered Canada and Quebec to pay respective shares: $832,724.37 for Canada and $767,745.58 for Quebec – CA said governments’ refusal to provide enough funding to meet SPM’s needs justified finding both violation of principle of good faith and failure to uphold Crown honour – Quebec appealed from CA’s decision, Canada having paid amounts CA awarded against it –
SC majority dismissed appeal – Said Quebec’s refusal to renegotiate not in keeping with good faith principle – Also breached obligation to act in manner consistent with Crown honour – Appeal dismissed.
Sanis Health Inc. v. British Columbia [2024] SCC (29 November 2024)
Unsuccessful appeal from British Columbia CA – In 2018, British Columbia brought action against pharmaceutical companies that manufactured, marketed and distributed opioid products throughout Canada – British Columbia alleged every province and territory in Canada experienced high numbers of addictions, illnesses and deaths due to opioid epidemic – Companies contributed to epidemic by falsely marketing their products as being less addictive and less prone to abuse than other pain medications – British Columbia asked British Columbia SC to certify action as class proceeding, allowing it to act as representative plaintiff on behalf of all federal, provincial and territorial governments and agencies that paid healthcare, pharmaceutical and treatment costs related to opioids – s 11 Opioid Damages and Healthcare Recovery Costs Act (ORA) allowed British Columbia to bring action on behalf of multiple governments but allowed government to opt-out of proceeding –
Several companies applied to British Columbia SC, saying s 11 ORA unconstitutional because it fell beyond authority of legislature under Constitution Act, 1867 – Said did not respect territorial limits of British Columbia’s power and undermined sovereignty of other governments in Canada – Application judge dismissed applications – Said s 11 ORA purely procedural mechanism to allow British Columbia to act on behalf of other governments in proceedings related to opioid-related wrongs – Said s 11 therefore fell within province’s constitutional authority to legislate regarding administration of justice in province – Also said s 11 respected territorial limits of British Columbia’s authority since it only affected other governments once they consented to participate in proceeding –
Companies appealed decision, saying application judge incorrect to say s 11 ORA within British Columbia legislative authority because it affected “substantive civil rights” of other provinces – CA dismissed appeal and agreed with application judge’s conclusion that s 11 created procedural mechanism – Companies appealed to SC –
SC majority dismissed appeal – Said courts below correct to say pith and substance of s 11 created procedural mechanism for application of ORA to existing opioid-related proceeding – Section 11 did not deal with substantive rights – Meaningfully connected to British Columbia and respected legislative sovereignty of other governments in Canada – Appeal dismissed.
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