New Zealand Law Society - Courts roundup 6 March - 12 March 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Re M (SC 13/2023) [2023] NZSC 61 (3 March 2025)
Successful leave application – Approved question whether CA correct to dismiss M’s appeal in so far as it sought suppression of LF’s name under ss 200(1) and 200(2)(f) Criminal Procedure Act 2011 – LF’s application for extension of time to appeal direct to SC, against HC judgment granted – Leave to appeal granted – Approved question whether HC correct to decline to grant LF permanent name suppression – Interim order prohibiting publication of LF’s name, address, occupation or identifying particulars pending SC determination of appeals.
Re M (SC 13/2023) [2024] NZSC 29 (3 March 2025)
Successful application to adduce new evidence, unsuccessful appeals – Raised issues about way youth justice principles interacted with open justice principle in decisions about name suppression under ss 200 and 202 Criminal Procedure Act 2011 – Section 200 set out when court could make suppression order prohibiting publication of name and other identifying particulars of defendant in criminal proceedings – Section 202(1)(c) provided for court to make suppression order in respect of person connected with defendant.
Toy v R [2025] NZSC 8 (4 March 2025)
Unsuccessful leave application – T sought leave to appeal CA upholding conviction under Animal Welfare Act 1999 in 2017 for ill treatment of cats and goat –
SC saw nothing in CA reasons suggesting substantial miscarriage of justice might have occurred, nor did proposed appeal raise matters of general or public importance – Application dismissed.
Re Erwood [2025] NZSC 11 (5 March 2025)
Successful review application – Self-represented E applied for review of Registrar decision to not accept application for leave to appeal CA decision –
SC Judge accepted for filing and referred to panel for decision on leave application.
Alalääkkölä v Palmer [2025] NZSC 9 (6 March 2025)
Unsuccessful appeal from CA – Appeal first concerned whether copyright in artwork created during course of relationship could be “relationship property” for Property (Relationships) Act 1976 (PRA) purposes – If so, appeal raised second issue about how artworks and associated copyrights to be treated in relationship property settlement –
A artist – During 20-year marriage to P, A created several artworks – While parties agreed artworks themselves relationship property, disagreed on whether copyrights in artworks “property” under PRA, or if so, whether “relationship property” or “separate property” – If copyrights relationship property, they, or at least their value, to be divided equally amongst parties – Family Court said copyrights in artworks A’s separate property – HC disagreed, saying copyrights relationship property – CA agreed with HC, saying, P should receive compensation for their value, A should retain copyrights – P accepted, however A granted leave to appeal to SC – Approved question whether CA correct determining two questions of law: whether copyrights “property” for PRA purposes and, if so, how should be classified under PRA – SC also sought submissions on orders to be made consequential on answers to two questions of law –
SC unanimously said: copyrights are property for PRA purposes, may be relationship property – Said copyright could be property “acquired” during marriage and therefore relationship property under s 8(1)(e) PRA – Appeal dismissed.
Mukoko v R [2025] NZSC 12 (7 March 2025)
Unsuccessful time extension application – Self-represented M sought time extension to apply for leave to appeal to SC – Application reprised complaints about inconsistency of verdicts, jury directions and reparation order – Also sought to advance new appeal grounds –
SC said sole criterion on which leave might be granted concerned whether substantial miscarriage of justice may have occurred – Nothing M raised suggested CA incorrect – Application dismissed.
Lane v Goldson [2025] NZCA 36
Unsuccessful appeal by L against decision declining application under s 19 Administration Act 1969 (proceedings where executor neglects to prove will) - L may or may not be a biological daughter of D - She applied for Public Trust to be appointed as administrator under s19 and for the Public Trust to bring a Property (Relationships) Act 1976 (PRA) claim against D's de facto partner G, who was one of estate executors – L said once estate enlarged, she had an entitlement under succession of intestate estates – Whether there would be serious injustice to L if the PRA claim was not allowed –
Distribution of assets in the circumstances concluded estate administration but did not preclude order under s 19 – Section 19 could be used to reopen a closed estate and allow a third party to try to enlarge it - To bring claim against G under PRA, Public Trust have to prove it would be seriously unjust not to grant leave in terms of s 88(2) PRA - L had not provided evidence of financial need, breach of moral duty or other special circumstances - Not a case where need or breach of moral duty was implicit - L aged 60 – Difficult to view as seriously unjust to L any inability on her part to claim an automatic entitlement in the absence of some evidence of breach of moral duty or special circumstances – Application dismissed.
Wiles v Vice-Chancellor of the University of Auckland [2025] NZCA 42
Unsuccessful application by W for leave to appeal EC decision which upheld claim against University for breaching its health and safety, good faith and good employer obligations, leading to unjustifiable disadvantage and breach of contract – General damages of $20,000 awarded – W’s role during the COVID-19 pandemic involved providing public commentary and advice – Subject to criticism -
Leave to appeal should not be granted - Nature and scope of a university’s obligation to preserve and enhance academic freedom potentially involved questions of law that could be of general or public importance, but such questions did not arise in proposed appeal - Not seriously arguable Court failed to recognise academic freedom as a matter of law - Whether Court could award damages for a breach of duty of good faith potentially raised issue of wider importance but, given an award of general damages was made and not challenged by the university, argument award insufficient limited to challenging evaluation made by EC of facts and circumstances of case - Application dismissed.
K (CA782/2024) v R [2025] NZCA 38
R v D [2025] NZCA 44
ST (CA518/2023) v R [2025] NZCA 45
S v Chief Executive of Oranga Tamariki [2025] NZCA 43
R v Kingi [2025] NZHC 343 (28 February 2025) Johnstone J
Sentencing – Following jury trial K convicted of murder under s 172 Crimes Act 1961 and conspiring to pervert course of justice under s 116 Crimes Act – HC sentenced K to life imprisonment with MPI 11.5 years for murder, and 12 months' imprisonment to be served concurrently for conspiring to pervert course of justice – F convicted of wilfully perverting course of justice under s 117(e) and conspiring to pervert course of justice under s 116 Crimes Act (x2) – HC sentenced F to six months' home detention – J convicted of wilfully perverting course of justice under s 117(e) Crimes Act (x3) – HC sentenced J to 10 months' home detention.
Re application for Judicial Review by JR123 [2025] UKSC 8 (6 March 2025)
Unsuccessful appeal from Northern Ireland CA – Concerned whether regime in Northern Ireland for convictions becoming ‘spent’ under Rehabilitation of Offenders (Northern Ireland) Order 1978 (Order) compatible with JR123’s right to respect for private and family life under article 8 European Convention on Human Rights (article 8 and Convention) –
JR123 aged 66 – In 1980, when 21, convicted of arson and possessing petrol bomb in suspicious circumstances – Sentenced to concurrent imprisonment terms of five years and four years respectively – Released in 1982 – JR123 said now fully rehabilitated member of society and expressed shame and regret for offences – Department did not dispute this – However, as JR 123 sentenced to imprisonment for more than 30 months, article 6 Order effect meant convictions incapable of becoming “spent” for purposes of rehabilitation regime (i.e. to allow him not to mention them to third parties and forbidding state officials to take them into account) – Consequence JR123 been required to disclose convictions in certain circumstances, such as when applying for jobs or for insurance for business – JR123 said had negative consequences for him, such as making it difficult to find employment and insurance, and causing distress and humiliation when had to disclose convictions –
JR123 said to comply with rights under article 8, state had to afford him opportunity to show that, upon consideration of individual circumstances, convictions should be treated as spent – Since Order did not allow this, JR123 brought judicial review claim seeking declaration article 6 Order incompatible with article 8 rights – JR123 also sought damages for breach of article 8 rights – HC upheld JR123’s claim and made declaration article 6 of Order breached JR123’s article 8 rights – However, HC declined to award damages, saying declaration sufficient to acknowledge breach of rights – Department appealed regarding declaration, and JR123 cross-appealed damages decision – CA allowed Department’s appeal and dismissed JR123’s cross-appeal – JR123 appealed to SC –
SC unanimously dismissed appeal – Said Order struck fair balance between JR123’s rights, others’ rights and freedoms and general community interest – Rehabilitation regime under Order falls within wide margin of appreciation given to legislator in context and did not breach JR123’s article 8 rights – Appeal dismissed.
Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC 9 (6 March 2025)
Unsuccessful appeal from CA – C dual Lebanese and British national employed by Royal Embassy of Saudi Arabia between 18 January 2010 and 17 January 2018 – During this period Embassy’s function included making arrangements for, and protecting interests of, Saudi students studying in United Kingdom – Initially, C Post Room Clerk in Administrative Affairs Department – Essentially data entry role – Although C may have been able to access wide-ranging confidential information through electronic record system, unaware could do so and never in fact did so – Between 2012 and 2015, involved in organising Embassy’s Career Day and Graduation Ceremony – Involvement may have granted access to confidential personal details of government or royal attendees, but did not analyse details or make any decisions regarding them –
Embassy then transferred C to be Secretary to N, Head of Cultural Affairs Department, where C undertook basic secretarial functions – Did not have access to N’s diary, attend any meetings with him or know meeting details – May have dealt with children of Saudi officials or royal family members, but role remained purely administrative, making arrangements for their study – Following appointment of new cultural attaché, C moved back to post room in Administrative Affairs Department, where she undertook little or no work until her employment ended –
On 19 March 2018, C brought claims against Embassy for direct discrimination on grounds of religious belief and harassment related to religious belief under Equality Act 2010 – Embassy pleaded immunity from claims under State Immunity Act 1978 (SIA 1978) – Employment Tribunal said Embassy not entitled to State immunity because C’s employment not exercising sovereign authority – Employment Appeal Tribunal dismissed Embassy’s appeal – Embassy granted permission to appeal to CA and filed skeleton argument on appeal – However, Embassy failed to attend hearing – Embassy’s solicitors ceased acting for Embassy because of prolonged non-payment of bills and Embassy did not find alternative representation – CA dismissed Embassy’s appeal for non-appearance, without reference to State immunity issue – Embassy appealed to SC –
SC unanimously dismissed appeal – Said in circumstances of this case, CA erred in law, failing to give proper consideration, in accordance with duty under s 1(2) SIA 1978, to whether Embassy entitled to State immunity – If CA had considered issue, however, would necessarily have concluded Embassy not entitled to immunity – Appeal dismissed.
Saskatchewan (Environment) v. Métis Nation [2025] SCC 4 (28 February 2025)
Unsuccessful appeal from Saskatchewan CA – About whether court application by Métis Nation - Saskatchewan (MNS) against Saskatchewan province abuse of process –
MNS represented Métis in Saskatchewan – For over 20 years, MNS engaged in series of legal proceedings with Saskatchewan government –
In 1994, MNS sued Saskatchewan, asking court to declare MNS had Aboriginal title and commercial harvesting rights over certain land in northwestern part of province (1994 Action) – Aboriginal title would give holder right to use and control land, as well as reap benefits flowing from it – Action stayed in 2005 because MNS failed to comply with court order requiring it to disclose certain documents –
In 2020, MNS started different lawsuit against Saskatchewan about policy government adopted on Indigenous consultation – MNS asked court to declare Saskatchewan had to consult with MNS when contemplating conduct that could adversely affect asserted Aboriginal title and commercial harvesting rights (2020 Action) – Second lawsuit ongoing –
In 2021, Saskatchewan issued three uranium exploration permits to company – Permits applied to land in which MNS asserted Aboriginal title and rights – MNS challenged decision to issue permits in court because Saskatchewan refused to consult (2021 Application) – Responding, Saskatchewan asked court to strike paragraphs in 2021 Application that referred to claimed Aboriginal title and commercial harvesting rights – Said paragraphs were abuse of process given 1994 and 2020 Actions –
King’s Bench Court said because 2021 Application raised same issues as in 1994 and 2020 Actions, would be abuse of process to allow application to proceed unchanged – Court struck out paragraphs – CA said did not involve same issue – Said allowing 2021 Application to proceed, without striking out paragraphs, did not give rise to abuse of process – Saskatchewan appealed to SC–
SC unanimously dismissed appeal and said in circumstances here no abuse of process relating to 2021 Application, whether with regard to 1994 or 2020 Action – Abuse of process possible in proceedings involving Indigenous litigants, as for others – However, unique context of litigation to vindicate Aboriginal rights must always be borne in mind, both as to whether abuse of process existed and, if so, what order would be appropriate – Court procedures should facilitate, not impede, just resolution of Aboriginal claims – Appeal dismissed.
Ontario (Attorney-General) v Working Families Coalition (Canada) Inc [2025] SCC 5 (7 March 2025)
Unsuccessful appeal from Ontario CA – Section 37.10.1(2) of Ontario’s Election Finances Act (EFA) restricted amount “third parties” could spend on political advertising in year before provincial election period – Third parties were citizens and groups who aimed to provide information to other citizens and draw attention to issues of importance to them – EFA limited third party spending on political advertising to $24,000 in any one riding and $600,000 in total during 12-months before election period – Also restricted political party advertising, but only during six months before election period – During that time political parties could spend up to $1,000,000 – Not subject to any spending limits before six-month period –
Civil society organisation, several unions and individual citizens challenged constitutionality of EFA’s spending limit on third parties, saying provision infringed right to vote guaranteed by s 3 Canadian Charter of Rights and Freedoms – Application judge said challenged provision did not violate s 3 as law respected voters right to meaningfully participate in electoral process through informed vote –
CA majority allowed appeal, saying s 37.10.1(2) violated right to vote under s 3, given spending limit not carefully tailored, and application judge made no findings supporting conclusion spending restrictions enough to support modest informational campaign – Majority declared challenged spending limit invalid – Ontario Attorney-General appealed to SC – Said CA applied wrong legal test and failed to defer to application judge’s factual findings –
SC majority dismissed appeal – Said third party spending limit in s 37.10.1(2) EFA infringed right to vote in s 3 Charter and therefore constitutionally invalid – By design, s 37.10.1(2) created absolute disproportionality, disproportionality so marked on its face that allowed political parties to drown out third party voices on political issues from reaching citizens during entire year of legislative activity – Limit not be saved under s 1 Charter as not justified in free and democratic society because law does not minimally impair right – Appeal dismissed.