New Zealand Law Society - Courts roundup 31 October - 6 November 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Hoeberechts v Commissioner of Inland Revenue [2024] NZSC 144 (1 November 2024)
Unsuccessful leave application – Following successful appeal in DC, self-represented H received lump sum payment of several years’ unpaid accident compensation entitlements – Payment, roughly $150,000, paid in tax year ending 31 March 2018 – IRD taxed on basis that it was derived wholly in that tax year – Meant taxed at higher marginal tax rate than would have been if correctly paid year-by-year in first place –
H unsuccessfully challenged tax assessment before Taxation Review Authority – Sought to appeal decision to HC, but out of time, and HC declined application for time extension, saying proposed appeal could not possibly succeed – After procedural misstep, H unsuccessfully belatedly applied for extension of time to appeal to CA – Applied for leave to appeal to SC –
SC said sympathetic, but leave criteria not met – Application dismissed.
Dunstan v Chief Executive Department of Corrections [2024] NZSC 146 (1 November 2024)
Unsuccessful application to review Registrar’s decision – Self-represented D applied for review of Registrar’s decision to decline to accept notice of application for leave to appeal to SC – D subject of order under s 166 Senior Courts Act 2016 restraining her from commencing or continuing civil proceedings in any senior court without first obtaining leave from HC judge –
SC said leave not first having been obtained under s 166 order, Registrar right to refuse to accept application for filing – Application dismissed.
Deliu v Attorney-General [2024] NZSC 147 (1 November 2024)
Unsuccessful leave and other applications – Self-represented D applied for leave to appeal CA decision and to recall SC Minute – Various other applications also dealt with –
SC dismissed applications, recall and leave applications.
Pascoe v Minister for Land Information [2024] NZCA 557
Unsuccessful appeal by P against HC dismissal of judicial review application concerning decision by Minister to acquire various interests in their land for Mt Messenger Bypass Project - NZTA took steps to invoke compulsory acquisition process under Public Works Act 1981 (PWA) – NZTA contracted with accredited entity to provide property-related services to NZTA in connection with project - Notice of desire to acquire land was served on P who considered negotiations could not be lawfully conducted by entity, only Minister or their delegate under s18(1)(d) PWA - In absence of agreement, Minister issued notice of intention to take P’s land under s23 PWA - HC held Minister not required to personally carry out negotiations under s18(1)(d) PWA and that relevant clauses relating to leased land under Sch 3 Property Law Act 2007 (PLA) could be excluded -
Unless a statute expressly or implicitly required otherwise, a Minister could engage appropriate persons to carry out administrative or supporting tasks which did not involve exercise of any statutory power - Negotiations towards a contract with a landowner were administrative or supporting functions of a kind that could be performed by a person other than relevant statutory decision-maker – Consistent with PWA for Minister or delegate to rely on accredited entity to carry out day-to-day negotiations provided ultimate responsibility for negotiations was retained by Minister or delegate - Minister could exclude relevant terms and conditions under the PLA when acquiring land under PWA.
Ramirez-Alfonso v R [2024] NZCA 545
Unsuccessful appeal by R against refusal to grant discharge without conviction for representative charge of importing cocaine – Guilty plea - R sentenced to three years and six months imprisonment – R emigrated from Colombia 10 years earlier on a student visa – For past two years had lived and worked on a dairy farm – Drug syndicate used farm workers as cover – R provided residential addresses to syndicate to receive packages - Estimated 42.5 kgs of cocaine was imported into NZ as part of operation, with street price of over $19M -
Offending was serious given amount of cocaine involved – No suggestion R’s agency was negatively affected as an immigrant worker to a material extent - While there were significant consequences of conviction, they were not disproportionate to gravity of offending - Discounts given totalling 35 per cent appropriate (guilty plea, disproportionate impact of imprisonment given her isolation and lack of familial support as a foreign national, background factors and previous good character) - Risk of deportation was not out of proportion to her offending, as it was a predictable risk faced by offenders in her position - Sentence not manifestly excessive.
Leyco v R [2024] NZCA 551
Successful appeal by L against sentence of four years and 10 months imprisonment for 16 representative charges of possessing, exporting, distributing and making objectional publications – Guilty plea – L sexually abused as a child - Importance of an offender’s background in assessing culpability for their offending -
Starting point of seven years within range - Sexual abuse in childhood could be a causative contribution to sexual offending in adulthood – L’s early life was socially sheltered – He emigrated from Philippines in 2015 and had a limited social life – L should have been given a discount for causative contribution to his offending – Discount of five per cent given - Discount of five per cent for remorse and challenges in prison as a foreign national remained - Sentence of four years and six months imprisonment substituted.
Harris v R [2024] NZCA 554
Unsuccessful appeal by H against sentence of three years and 11 months imprisonment for dishonesty offending – Most serious of which were charges of burglary and using a document with intent to deceive – Starting point of 76 months imprisonment reduced to 56 months for totality – 12 per cent uplift for previous convictions, 12 per cent discount for guilty pleas -
No discernible error by sentencing Judge – Starting points adopted were commensurate with authority and Judge’s approach appropriately aligned with factual narrative of offending - Starting point of 22 months for burglary within range - Value of items taken (over $6,000) did not diminish seriousness of offending - Uplift for previous offending within range, especially when considering absence of any material reduction in H’s offending - Discount given for guilty pleas was appropriate and accounted for lateness of a number of the pleas.
Stafford v Attorney-General [2024] NZHC 3110 (30 October 2024) Edwards J
Disposition following 2017 SC ruling – In 2017 SC ruled Crown owed fiduciary duties to customary owners of land located at top of South Island (Te Tauihu o te Waka a Māui, prow of Māui’s canoe) – Liability, remedy issues referred back to HC – Judgment determined issues –
SC said duties required Crown to reserve 15,100 acres of land (the Tenths) for benefit of customary owners and to exclude pā, urupā and cultivations from land Crown obtained in 1845 – Said unique private law duties owed to customary owners – Not duties Crown owed to Māori more generally and claim not for te Tiriti o Waitangi | Treaty of Waitangi breach –
S represented customary owners’ descendants – Sought return of land and compensation for different heads of loss resulting from alleged breaches of fiduciary duties – Total sum claimed ranged from between $4.4–6 billion – Crown denied breaching fiduciary duties and raised affirmative defences based on Limitation Act 1950, treaty settlements customary owners received and equitable defence of laches and acquiescence –
HC said Crown breached fiduciary duty, but not to extent claimed – Said firstly, Crown failed to reserve 10,000 acres of Tenths; Secondly, engaged in two transactions resulting in loss of some Tenths reserved (Allocated Tenths); Thirdly, Crown failed to exclude pā, urupā and cultivations from eight of approximately 72 claimed sites of Occupation Lands; Fourthly, Crown allocated Tenths over pā, urupā and cultivations instead of reserving them from Crown land – Crown consequently obtained land which should have been held in trust for customary owners, or which should have remained in customary ownership – Land was taken and Crown used as if was Crown land –
HC said customary owners suffered loss but not to extent claimed – Suffered loss and beneficial use of Tenths – Loss of use of pā, urupā and cultivations not proved –
HC said there were partial defences to claims – Limitation Act 1950 barred some claims but did not bar any of four claims outlined above – Statutory exception applied to claims for recovering trust property still in Crown’s hands, or for trust property Crown converted to its own use –
Equitable defences (laches and acquiescence) not complete defence to claim – Defences captured situations where delay or failure to assert rights, coupled with prejudice, made it inequitable to enforce plaintiff’s claims – While many claims here failed due to lack of evidence, evidential prejudice to Crown did not constitute complete defence – Also, HC said S did not act unreasonably in waiting to commence claim – Customary owners persisted in efforts to seek redress for Crown’s actions since at least 1854 –
HC said S entitled to relief but in form to be determined – HC made interim findings Crown held certain land on trust for customary owners’ benefit – Did not include land owned by Crown entities, as S sought – S entitled to compensation – Sum included current market value of land held on trust but no longer in Crown’s hands – Also included compensation for value of beneficial use of Tenths represented by calculation of lost rental income – Cultural loss compensation claim declined –
Relief form could not be settled until final acreage of land to be returned and other issues (such as application and calculation of simple interest) determined – However, final monetary award, before interest, likely to be substantially less than $1 billion – Would be significant sum – Award of this nature against Crown not unprecedented in New Zealand and consequence of Crown’s breach of private law fiduciary duties owed to customary owners.
RE application by JR222 for Judicial Review [2024] UKSC 35 (30 October 2024)
Appeal concerned proper interpretation of s 13(1) Inquiries Act 2005 (Act) which enabled public inquiry to be suspended –
Muckamore Abbey Hospital (Hospital) provided inpatient assessment and treatment facilities for vulnerable people with severe learning disabilities, mental health needs and challenging behaviour – In 2017, allegations emerged about inappropriate behaviour towards and abuse of patients by Hospital staff – Independent reviews revealed systemic failures of safeguarding practices and failings in governance, resulting in patient harm – Allegations also led to Police Service of Northern Ireland (PSNI) investigation – Public Prosecution Service for Northern Ireland (PPS) charged JR222, former Hospital staff nurse and seven co-accused with criminal offences regarding alleged abuse committed in course of their employment at Hospital between April and June 2017 – Trial still pending – Part of large-scale PSNI incomplete criminal investigation –
In 2020, Minister of Health (Minister) considering whether to order inquiry under Act – Minister alerted to issues potentially arising in parallel running of public inquiry and criminal investigation and criminal proceedings – Sought advice from officials and briefed on five options –
On 8 September 2020, Minister ordered inquiry (Inquiry) to examine, amongst other matters, issue of alleged abuse of patients at Hospital, between 2 December 1999 and 14 June 2021 – Some overlap between Inquiry and criminal investigation and proceedings – Inquiry work included, but also extended prior to and beyond, criminal prosecutions timeframe – Also extended beyond considering individual conduct and included forward looking aspect – Inquiry, PSNI and PPS took detailed measures to protect integrity of criminal investigation and proceedings –
JR222 requested Inquiry be suspended under s 13(1)(b) until conclusion of criminal proceedings against her – Minister declined, saying not necessary to suspend Inquiry to allow criminal proceedings to be determined – JR222 brought judicial review proceedings against Minister’s refusal to suspend Inquiry – Claimed, amongst other grounds, Minister incorrectly applied concept of necessity to entirety of his discretion under s 13(1) – JR222 said word “necessary” only qualified suspension period and not decision whether to suspend inquiry for one of purposes set out in s 13(1)(a) or (b) – Minister said “necessary” also qualified decision to suspend –
HC and CA dismissed JR222’s challenge, saying Minister applied correct test – JR222 appealed SC –
SC unanimously dismissed appeal – Said “necessity” applied to both purposes in s 13(1)(a) and (b) and to suspension period – Said normal statutory interpretation principles applied – When interpreting statutes, courts seeking to determine meaning in light of context and purpose of statutory provision – Courts should avoid interpretation that produced absurd result, as unlikely to have been intended by legislature – Absurdity given very wide meaning, covering, for instance, unworkability, impracticability, inconvenience, anomaly, and illogicality –
Section 13(1) naturally read as one question to be considered as whole – Therefore, necessity applied both to purposes in s 13(1)(a) and (b) and to suspension period – Appeal dismissed.
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