New Zealand Law Society - Courts roundup 3 October - 9 October 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Stevens v Chief Executive Department of Corrections [2024] NZSC 127 (1 October 2024)
Unsuccessful leave application – Transgender S in preventive detention – Sought judicial review challenging decisions relating to segregation while in custody – Review grounds essentially directed to what they said was prison management improperly using directed segregation and CE’s inadequate oversight of directed segregation – HC dismissed application – CA upheld dismissal – S sought leave to appeal to SC –
S's proposed appeal focused on status of United Nations Standard Minimum Rules for Treatment of Prisoners (the Mandela Rules) and ss 58 and 59 Corrections Act 2004 – These sections provide for prison director to direct segregation for purpose of security or good order of prison, or safety, or for purpose of protective custody –
SC said Mandela Rules issue might raise question of general or public importance which Court could consider at some point, but not here – Processes undertaken relating to ss 58 and 59 might mean issues arose – Depended on particular facts – No question of general or public importance – No appearance of miscarriage of justice – Application dismissed.
Clark v NZ Police [2024] NZSC 129 (2 October 2024)
Unsuccessful recall application – Self-represented C sought recall of SC declining leave for direct appeal from HC – Followed HC declining habeas corpus –
SC said no basis for recall – Application dismissed.
Dai, Re [2024] NZSC 131 (2 October 2024)
Unsuccessful second recall application – Self-represented D presented “recall application” and applied for fee waiver –
Both applications dismissed.
T v R [2024] NZSC 128 (3 October 2024)
Unsuccessful leave application – Jury convicted T of sexual violation by rape and other sexual offending against daughter when she was aged between 12 and 15 – Wife convicted at same trial of failing to protect child under s 195A Crimes Act 1961 – T was sentenced to 14 years’ imprisonment – Appeal to CA failed –
Leave application to SC centred on two grounds: (a) joinder of two trials; and (b) production to jury of portion of transcript of complainant’s evidence from previous trial, under s 128 Evidence Act 2006 –
SC said neither point raised matter of general or public importance; rather each turned on particular facts – Directions not erroneous, such that miscarriage of justice might occur if proposed appeal not heard – Application dismissed.
Nikora on Behalf of Te Kaunihera Kaumātua o Tūhoe v Kruger on Behalf of Tūhoe – Te Uru Taumatua Trust [2024] NZSC 130 (3 October 2024)
Successful appeal – Appeal concerned whether Māori Land Court had jurisdiction over landholding trusts that were post-settlement governance entities (PSGEs) – Māori Land Court had jurisdiction over “trust constituted in respect of any General land owned by Māori” as stated in s 236(1)(c) Te Ture Whenua Māori Act (TWMA) – Key issue whether trust PSGE met definition – Here, SC had to determine whether Māori Land Court had supervisory jurisdiction over Tūhoe – Te Uru Taumatua Trust (TUT) –
SC unanimously allowed appeal – Said TUT constituted in respect of General land owned by Māori – Meant Māori Land Court had jurisdiction over TUT –
Māori Land Court orders requiring TUT to hold fresh elections for two trustees reinstated – SC also granted N’s application to adduce evidence related to Tūhoe tikanga – SC ordered TUT trustees to pay N’s costs from Trust assets – Courts below to determine costs issues in light of SC judgment – Appeal allowed.
Fleming v Attorney-General [2024] NZSC 132 (4 October 2024)
Partly successful leave applications – F and H separately applied for leave regarding status as home workers – Approved question whether CA correct to say F not “engaged, employed or contracted” by Ministry of Health | Manatū Hauora as “homeworker” under s 5 of Employment Relations Act 2000 (ERA); and test for “work” when work conducted by homeworkers who work overnight in their home –
Approved question for H’s case was whether CA correct to say H not “engaged, employed or contracted” by Ministry of Health | Manatū Hauora as “homeworker” under s 5 ERA for period from August 2020 onwards when in receipt of funding under Individualised Funding scheme –
When addressing what constituted engagement as homeworker under s 5 ERA, parties were asked to provide submissions on relevance of United Nations Convention on Rights of Persons with Disabilities to that question, and whether CA correct in its approach to issue – Applications granted.
[M] (CA 792/2023) v R [2024] NZCA 451
Rolleston v R [2024] NZCA 494
Unsuccessful appeal by R against a sentence of five years one month imprisonment for robbery, assault with intent to injure and driving while disqualified - Whether sentencing Judge erred in referring to factors beyond those contained in summary of facts -
Sentencing Judge had not erred in referring to victims’ injuries and emotional impact on victims - Sentencing judges were entitled to draw inferences from a summary of facts as long as they were grounded in objective facts - Sentencing judges may also take into account evidence heard prior to plea being entered, provided it was consistent with summary of facts to which plea was entered – Starting point within available range having regard to comparable cases - There were also calculation errors that meant final sentence imposed was favourable.
[I] v R [2024] NZCA 495
Wineera v R [2024] NZCA 496
Unsuccessful appeal by W against sentence of seven years' imprisonment for methamphetamine and weapons charges - Judge adopted a starting point for totality of drug offending, rather than setting starting point based solely on lead methamphetamine offending and then uplifting for other drugs offending – Whether Judge’s approach to setting starting point resulted in a manifestly excessive sentence -
Result would not have been different if Judge had taken methamphetamine offending as lead offending and then uplifted it for remainder of drug offending – Methamphetamine offending fell within lower end of band 4 of Zhang v R - A “sole trader” who was commercially dealing could be both “significant” and “leading” - Addiction was not causative of offending - Commerciality - Position of influence as a senior member of local gang relevant – Appeal dismissed.
[S] v R [2024] NZCA 498
Southland Regional Council v Southland Fish and Game Council [2024] NZCA 499
Unsuccessful appeal by Council that it must show that none of specified effects were likely to arise in receiving waters before that rule was included in regional plan - Section 70 Resource Management Act 1991 (RMA) provided that, before regional council included a rule in a regional plan that allowed a discharge of a contaminant, where that contaminant may enter water, as permitted activities, regional council must be satisfied that certain specified effects were not likely to arise in receiving waters after reasonable mixing – Council wanted to include rule in regional plan that replicated wording of s70 – Whether jurisdictional bar to such a rule - Whether rule was appropriate was an evaluative matter still to be determined by Environment Court -
Section 70 threshold criteria for a rule allowing a permitted activity was not met – Council had jurisdiction to adopt rule allowing permitted activity - Statutory context of RMA indicated that Council had to be satisfied that proposed rule would operationally ensure permitted activities would not likely give rise to specified effects on receiving waters after reasonable mixing - Environment Court not satisfied mandated outcome would be achieved and further evidence was required.
Television New Zealand v Talley's Group Ltd [2024] NZCA 502
Partially successful appeal by TVNZ against HC decision striking out its bad reputation pleading - Talley’s were suing TVNZ in defamation – Talley’s said overriding message of publications was that work conditions at its factories were needlessly unsafe and management were turning a blind eye - As part of its defence, TVNZ pleaded that Talley’s already had a bad reputation, to extent that publications did not cause requisite level of harm to Talley’s reputation to succeed with a defamation claim - TVNZ also sought to use bad reputation pleading as an affirmative defence to Talley’s claims for declarations and indemnity costs - HC struck out bad reputation pleading, and affirmative defences -
Decision striking out TVNZ’s bad reputation pleading was set aside, and relevant paragraphs of statement of defence were restored - Decision striking out third and fourth affirmative defences upheld (defences of truth and it had reported responsibly on a matter of public interest) - Court should not reconsider harm to reputation threshold - Craig v Slater, affirmed “more than minor” harm threshold as appropriate threshold in New Zealand - No reasons to justify reconsideration of that decision - Evidence of a pre-existing bad reputation was relevant – Not inconceivable that bad reputation pleading could succeed at trial.
International Air Transport Association v Canada (Transportation Agency) [2024] SCC 30 (4 October 2024)
Unsuccessful appeal from Federal CA – Concerned whether federal agency could require airlines to pay compensation to passengers for certain international flight disruptions – Addressed whether compensation consistent with treaty, dealing with aspects of international air travel –
In 2018, Parliament amended Canada Transportation Act (CTA) to require Canadian Transportation Agency to make regulations described as “new air passenger rights regime” – In 2019, Agency made Air Passenger Protection – Regulations said what airlines had to do for passengers in case of international flight delays, cancellations and denial of boarding, which in some cases included paying minimum compensation amount of compensation – Also required airlines to refund baggage fees passengers paid when airline lost or damaged baggage on international flights –
International Air Transport Association, Air Transportation Association of America and several airlines (collectively, “airlines”) challenged certain Regulation provisions in Federal CA – Airlines said provisions not consistent with Convention for Unification of Certain Rules for International Carriage by Air (Montreal Convention) and fell outside Agency’s regulation-making authority under CTA –
Montreal Convention is international agreement that Canada signed in 2001 and implemented into Canadian law – Set out certain conditions and limits on what airlines could be required to pay passengers to compensate for international flight disruptions – Article 29 Montreal Convention said any “action for damages” within agreement scope subject to conditions and limits – Called “exclusivity principle” because it prevented person from bringing “action for damages” not subject to conditions and limits even if another basis in law to do so –
Federal CA dismissed airlines challenge, with exception of provisions relating to temporary loss of baggage – Considered Regulations compatibility with Montreal Convention and said compensation provided for under Regulations not “action for damages” –
Airlines appealed to SC seeking order setting aside certain Regulations provisions as they related to international air travel –
SC unanimously dismissed appeal – Said Montreal Convention exclusive within scope of matters it addressed but did not deal comprehensively with all aspects of international carriage by air – Under Article 29, there had to be “action” that led to “damages” for exclusivity principle to apply – Regulations did not provide “action for damages” because did not provide for individualized compensation – Rather, created consumer protection scheme operating in parallel with Montreal Convention, without imposing upon liability limitation provisions – Thus, did not fall within exclusivity principle scope –
Since Regulations did not give rise to liability that Article 29 pre-empted, did not conflict with Montreal Convention and no basis to conclude outside Agency jurisdiction – Appeal dismissed.
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