New Zealand Law Society - Courts roundup 30 May - 5 June 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Henderson v Attorney-General [2024] NZSC 61 (29 May 2024)
Unsuccessful leave application – In 2015 and 2016, H charged with three offences under Insolvency Act 2006 – On 6 April 2020, shortly after COVID-19 lockdown began, Deputy Solicitor-General stayed prosecution because by time charges could proceed to trial, delay would be undue –
H sought judicial review of Deputy Solicitor-General’s decision, claiming right to be tried to clear his name – HC dismissed application – CA upheld HC – H applied for leave to appeal to SC –
SC said leave criteria not met – Related to particular facts of case – No issues of general or public importance – Two Courts already considered case – Nothing raised suggested decisions below in error in particular circumstances – No risk of miscarriage of justice – Application dismissed.
Griffiths v Island Grace (Fiji) Limited (In Receivership and In Liquidation) [2024] NZSC 62 (31 May 2024]
Unsuccessful leave application – On 17 February HC placed Satori into liquidation – CA upheld decision – G applied for leave to appeal –
SC said G raised large number of grounds in leave application, some of which not raised in Courts below – Said while some grounds might raise legal issues, main thrust to ask SC to take different view of facts – No issue of general public importance or commercial significance – Nor does anything raised mean risk of miscarriage of justice – Courts below said Satori plainly insolvent – CA also said real issue as to whether G had standing to make application either in his own right or on behalf of Satori – Application dismissed.
Re Slavich [2024] NZSC 66 (31 May 2024) Williams J
Unsuccessful review application – Self-represented S applied to review Deputy Registrar’s decision declining to waive filing fee associated with S’s intended application for leave to appeal to SC –
SC judge dismissed application saying, among other things, Deputy Registrar correct that S’s intended proceeding raised narrow issue, specific to his application only – Application dismissed.
Chai v Minister of Immigration [2024] NZCA 183
Unsuccessful application for leave to appeal – The appellant, a Malaysian citizen who had been a resident in New Zealand since 2012, was convicted in 2018 on charges of providing false and misleading information in an application for a work visa made in 2009, and the use of a fraudulently obtained work visa on entry to New Zealand in 2009 and 2010 – He was served with a deportation liability notice in 2022 – Proposed grounds of appeal are three errors of law relating to the Immigration and Protection Tribunal’s treatment of integrity of the immigration system as a relevant factor in the enquiry under s207(1) Immigration Act 2009 – Whether there is a seriously arguable question of law that has any general or public importance that would justify leave being granted to appeal to the HC – Whether there is any other reason leave should be granted to appeal - HELD: No seriously arguable question of law – Not an exceptional case involving individual injustice - Application for leave to appeal declined.
[F] v R [2024] NZCA 187
Ratana v R [2024] NZCA 192
Unsuccessful appeal against sentence of 7 years imprisonment for a charge of wounding with intent to cause grievous bodily harm – Offending contained aggravating factors including intentional use of a lethal weapon and premeditation - Disputed facts hearing, Judge declined to allow evidence surrounding the infliction of the stab wound to the victim’s abdomen – Sentence starting point of 9 years imprisonment; discount of 10 per cent for guilty plea and a further 5 per cent for remorse – Further reduction of 7 months for 20 months spent under restrictive EM bail conditions – Whether Judge erred in constructing sentence resulting in the end sentence being manifestly excessive – HELD: Disputed facts hearing not an opportunity for appellant to broaden the area of dispute – Guilty plea acknowledged that the appellant had wounded the victim in the abdomen with the intention of causing him grievous bodily harm – Sentence starting point and discounts appropriate - Appeal dismissed.
Clarke v R [2024] NZCA 199
Partially successful appeal against sentence of 5 years 1 month imprisonment on charges of being in possession of methamphetamine for supply, a representative charge of being in unlawful possession of a firearm, attempting to manufacture a firearm, threatening to kill (x2), threatening to cause grievous bodily harm and threatening to destroy property – Appellant pled guilty to charges - He also pleaded guilty to a charge of failing to comply with his obligations in relation to a computer search and failing to comply with COVID-19 orders – Appeals sentence contending the Judge adopted a starting point on the methamphetamine charge that was too high and then applied uplifts that were excessive for the remaining charges - He also says the Judge failed to provide him with adequate discounts for mitigating factors – Appellant contends these errors resulted in the Judge imposing an end sentence that was manifestly excessive – Starting point of 3 years 3 months more appropriate – Uplift on other charges within the available range – Discounts appropriate - HELD: Appeal allowed in part – Sentence substituted with a sentence of 4 years 8 months imprisonment on the lead charge of being in possession of methamphetamine for supply – Concurrent sentences on remaining charges remain intact.
[S] v R [2024] NZCA 200
Turner v Te Whatu Ora – Health New Zealand, Wairarapa [2024] NZCA 203
Unsuccessful application for leave to appeal – Successful application for extension of time – Appellant was employed as a registered palliative care nurse working in the community - She was summarily dismissed in 2021 after a DHB investigation into Facebook posts made by the appellant regarding the Covid-19 vaccine, Maori-specific treatment plans and Muslim immigration – She was dismissed for serious misconduct with the DHB concluding she had breached expectations and codes of conduct – She pursued a personal grievance in the ERA, and challenged the ERA determination in the EC – Seeks leave to appeal the EC decision – Whether the EC erred by holding that the DHB was entitled to limit her political speech, including speech outside of the workplace – Whether the EC erred by denying her protection under the Human Rights Act 1993 – Whether the EC erred by finding that she was not discriminated against - HELD: Extension of time granted – Application declined.
R v Dodds [2024] NZHC 1419 (31 May 2024) Lang J
Sentencing – D sentenced after jury found him guilty of murder – Victim shot while D endeavouring to steal drugs and money – Shortly before trial, pleaded guilty to being in unlawful possession of firearm – No dispute about life imprisonment – Principal issue HC required to determine length of MPI –
HC said although s 104(1)(d) Sentencing Act 2002 engaged, manifestly unjust to impose 17 years MPI, given 12 years MPI ordinarily imposed and Crown did not allege D had intentionally killed victim – Sentenced to life imprisonment 12 years MPI.
R v Te Hivaka [2024] NZHC 1421 (31 May 224) Lang J
T H sentenced after jury found him guilty of being party to murder committed during aggravated robbery of person from whom T H’s associate attempting to steal drugs and money –
HC said although s 104(1)(d) Sentencing Act 2002 engaged, manifestly unjust to impose 17 years MPI because ten years MPI would ordinarily have been imposed and Crown never alleged principal offender intended to kill victim – T H sentenced to life imprisonment with ten years MPI.
Earthco Soil Mixtures Inc v Pine Valley Enterprises Inc [2024] SCC 20 (31 May 2024)
Successful appeal from Ontario CA – Concerned party’s ability to contract out of implied condition of sale under Ontario Sale of Goods Act 1990 –
City of Toronto hired PV to work on municipal flood remediation project, which included removal and replacement of topsoil for drainage – PV contacted Earthco to obtain topsoil with specified composition – Earthco provided PV with laboratory reports from different topsoil samples taken about six weeks prior and warned against purchasing topsoil without updated test results – However, PV had already missed project deadlines and urgently wanted delivery to avoid financial penalty – PV insisted on immediate delivery – PV and Earthco agreed to add two exclusion clauses to contract stating PV had right to test and approve material before shipped and if PV waived those rights, Earthco would not be responsible for quality of material once material left Earthco’s facility –
After topsoil delivered and placed on project site, water ponding noted – New testing revealed substantially more clay in topsoil than initial test results indicated and PV had to remove and replace topsoil – PV sued Earthco, alleging did not receive topsoil within range of compositional properties indicated in initial test results –
Trial judge dismissed PV’s claim – Said contract for sale of goods by description within meaning of s14 Ontario Sale of Goods Act, which set out implied condition that goods correspond with their description – Said PV did not get topsoil bargained for because of variation between topsoil promised and topsoil delivered – However, trial judge concluded exclusion clauses met “express agreement” in s 53 Sale of Goods Act, which allowed parties to contract out of s 14 implied condition – Said this despite exclusion clauses not explicitly mentioning they were to oust statutorily imposed terms and conditions –
CA disagreed with trial judge – Said exclusion clause wording insufficient to exempt Earthco from liability under s 14 – Allowed appeal and substituted judgment requiring Earthco to pay damages – Earthco appealed to SC –
SC majority allowed appeal – Said to be sufficient for s 53 purposes “express agreement” had to comprise agreement to negative or vary statutorily implied right, duty or liability – Such agreement must be expressly set forth within parties’ contract – Determining what qualified as express agreement also had to be informed by principles of contractual interpretation and law concerning exclusion clauses and paramount consideration must be parties’ objective intention –
Said here trial judge made no error of law regarding exclusion clauses at issue – Objective meaning of parties’ express agreement was PV accepted risk that topsoil would not meet previously supplied specifications concerning its composition if PV failed to test what it knew was organic and changing substance – Appeal allowed.