New Zealand Law Society - Courts roundup 7 November - 13 November 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Rea v Auckland Council [2024] NZSC 148 (6 November 2024)
Unsuccessful leave application – In February 2014 R, W Trust trustees, purchased house in Auckland – House built between December 2012 and August 2013 – Council issued code compliance certificate (CCC) for building on 18 October 2013 –
Following various defects being found, R went to HC claiming Council negligently issued CCC – HC struck claim out, ruling claim fell outside six-year primary limitation period in s 11 Limitation Act 2010 and three-year late knowledge period defined in s 14(1) – CA upheld decision – Applied for leave to appeal to SC –
SC said as CA observed, dearth of authority on s 14(1) – To that extent, proposed appeal raised matter of general and public importance, also having commercial significance – Despite that, not necessary in interests of justice for SC to hear and determine proposed appeal – That was because even if R’s interpretation of s 14(1) accepted, that provision included, if earlier, “the date on which the claimant ought reasonably to have gained knowledge” – Applying facts here, SC said proposed appeal futile – Application dismissed.
Gordon v Attorney-General [2024] NZSC (6 November 2024)
Unsuccessful leave application – G sought leave to appeal CA decision declining protective costs order in respect of appeal to that Court – HC made protective costs order – Attorney-General did not argue before CA order made in error – Rather said insufficient public interest to justify order on appeal, as proceeding had been heard and dismissed – CA agreed –
SC recently addressed prospective costs orders, generally confirming principles on which CA acted here – Order had to be necessary in interests of justice in circumstances of particular case – Difficulty for G that case is general and declaratory, and prospects of success in underlying appeal did not appear sufficient to justify forcing Crown to again bear appeal costs if appeal unsuccessful – Application dismissed.
Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2024] NZSC 151 (7 November 2024)
Costs order – On 11 April 2024, SC majority allowed Royal Forest and Bird Protection Society of New Zealand Inc (Royal Forest and Bird) appeal over New Zealand Transport Agency | Waka Kotahi (Waka Kotahi) proposing to build new East West Link (EWL) in Auckland – At issue were approvals given for project by Board of Inquiry (Board) under Resource Management Act 1991 (RMA) –
HC dismissed Royal Forest and Bird’s appeal – Further appeal to SC allowed – Majority did not adopt Royal Forest and Bird’s position that EWL could never obtain consent in light of relevant policies – Majority said Board’s errors were in taking (in substance) overall judgment approach, misinterpreting “have regard to” standard in ss 104 and 171, conflating s 171 with policies and assessing environmental effects in manner inconsistent with policies – SC remitted matter to Board for reconsideration in line with judgment terms –
Royal Forest and Bird sought $49,400 in costs and $7,232.87 in disbursements from Waka Kotahi for Supreme Court appeal – Sought further $27,495.50 in costs and $5,302.54 in disbursements for HC proceeding from Waka Kotahi and also, if appropriate, Auckland Council – No costs sought from Auckland Council for SC appeal as parties reached agreement when Auckland Council sought to participate in SC proceeding –
Waka Kotahi said costs should lie where they fell – Alternatively, said costs should be significantly reduced to reflect success Royal Forest and Bird actually achieved and because it would not be just for Waka Kotahi to be left with sole burden of costs award due to side agreement it was not party to nor aware of – Auckland Council, with support of Waka Kotahi, said SC should not determine costs issues arising from HC proceeding as HC best placed to do so – Some specific costs and disbursements also disputed –
SC said HC best placed to consider HC costs and disbursements – Regarding SC costs, here success mixed – Said should be modest discount to reflect side agreement – End result Waka Kotahi to pay Royal Forest and Bird $35,000 costs plus disbursements.
Dotcom v Attorney-General [2024] NZSC 150 (8 November 2024)
Unsuccessful leave second appeal application – In January 2012, Police executed search warrants at addresses associated with applicant (D), and one of his associates, seizing electronic devices storing estimated 150 terabytes of data – Warrants were issued under Mutual Assistance in Criminal Matters Act 1992 (MACMA) in response to request from USA seeking D’s extradition on charges of racketeering, copyright infringement and money laundering –
Initially D successful in HC – However, CA reinstated warrants – Following various determinations in various courts, D sought leave for second appeal to SC – Reprising arguments in Courts below, D said decision to provide seized devices to US authorities breaches right to be secure against unreasonable search or seizure under s 21 New Zealand Bill of Rights Act 1990; and wrong threshold has been applied in releasing police officers from certain undertakings –
SC said fundamental problem for D was no indication Deputy Solicitor-General’s decision involved breach of rights or other error of law – Given meaningful opportunity to seek judicial review (and appeal) with thorough consideration of s 21 – Proceedings generated concurrent findings that decision carefully considered and provided for protecting D’s rights, consistently with SC’s earlier guidance – SC not persuaded that analysis likely to change with second appeal – Application dismissed.
Johnston v R [2024] NZSC 154 (8 November 2024)
Unsuccessful leave application – After jury trial, now self-represented J, guilty of sexual violation by unlawful sexual connection of 14-year-old victim –
Sought leave to appeal CA denying bail pending appeal – In all circumstances and having regard to s 14(3) Bail Act 2000, CA not satisfied overall interests of justice required bail be granted –
SC said application related to particular circumstances of J’s case – No issue of principle arose – Further, nothing J raised suggested CA decision may have been in error – Application dismissed.
[W] v R [2024] NZCA 563
[T] v R [2024] NZCA 564
[S] v R [2024] NZCA 568
[C] v R [2024] NZCA 569
Cavell v R [2024] NZCA 565
Unsuccessful appeal by C against conviction for possession of methamphetamine and MDMA for supply and sentence of 2 years 8 months imprisonment - Whether prosecutorial misconduct for commenting on C’s failure to call partner as witness - Whether fresh evidence available (affidavits from friends which showed trip was not for purpose of purchasing methamphetamine) – Discounts for matters identified in cultural report -
Evidence did not present a direct and plausible challenge to critical question for jury of whether C discharged reverse onus in Misuse of Drugs Act 1975 - Evidence not cogent in relation to Crown’s allegations of possession for purpose of supply - Application to adduce fresh evidence declined - While prosecutor’s comments as to C not calling his partner as a witness were inappropriate, breach was adequately corrected and remedied by clear and firm directions of trial Judge - Prosecutor’s errors could not have affected trial outcome - Sentencing Judge should have recognised a causal relationship between C’s background (deprivation and drug addiction) and his offending, but aspects of C’s offending indicate he had substantial level of agency, reduced only marginally by background factors – Appeal dismissed.
Bei v B & Z Trades Company Ltd [2024] NZCA 570
Unsuccessful appeal by B against HC decision which declined his application that caveats lodged not lapse – Unsuccessful application by B for leave to adduce further evidence – B alleged he and his son were equal partners in a car importation business run through B & Z – B claimed company was effectively holding its assets on trust for the partnership and on that basis he had a caveatable interest in properties registered in the company’s name -
Evidence likely to be relevant in substantive proceeding but it did not meet test to adduce evidence on appeal because it was not fresh (it was reasonably available at time of caveat application) and was not cogent as to caveat application because it did not go to issue of whether properties were held on trust by B & Z for B and his son as partners – HC had not erred in declining to sustain caveats – B had not met burden of establishing an arguable case that properties registered in company’s name were held on trust for a partnership or that B had separate interest in properties by way of constructive trust – B may have an interest in B & Z itself on basis inter alia of payments made by him to the company.
Williams v Toyota Motor Corporation Australia [2024] HCA 38 (6 November 2024)
Successful appeal from Full Court FCA – Concerned proper construction of s 272(1)(a) Australian Consumer Law (ACL) –
W and another party (W) brought representative proceedings against Toyota Motor Corporation Australia Limited (Toyota) for people who, from 1 October 2015 to 23 April 2020, acquired motor vehicles with defective diesel exhaust after-treatment system (core defect) – Vehicles had propensity to experience one or more "defect consequences" that "substantially interfere[d] with [their] normal use and operation" – Included excessive white smoke and foul-smelling exhaust, need for inspections, services or repairs, increase in fuel consumption and decrease in fuel economy – After several attempts to fix core defect, effective repair became "available" in May 2020 free of charge –
Primary judge said, at time supplied, vehicles did not comply with guarantee of "acceptable quality" in s 54(1) ACL – Section 271(1) ACL said if s 54 guarantee not complied with, "an affected person in relation to the goods may ... recover damages from the manufacturer" – Section 272(1)(a) ACL said "an affected person in relation to goods is entitled to recover damages for ... any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates" – Primary judge said assessment of damages under s 272(1)(a) to be made at time of supply and information acquired thereafter could only be considered if it bore upon "true value" of relevant vehicle at time of its supply, which did not include knowledge of availability of repair in 2020, more than four years after core defect detected –
On appeal, Full Court said assessment of damages under s 272(1)(a) "concerned with compensation for loss or damage" and might require departure from time of supply or adjustment to avoid "over-compensation" and reflect "intrinsic" or "utilisation" value of relevant goods – Full Court said as core defect repair available at trial time, availability and timing of that repair should be considered in assessing damages – W and Toyota each granted leave to appeal to HC –
HC allowed W’s appeal and dismissed Toyota’s – Said assessment of damages under s 272(1)(a) was amount of value reduction of goods at time of supply to consumer resulting from failure to comply with acceptable quality guarantee at that time – Assessment undertaken having regard to "state and condition of the goods" at time of supply, which included effectiveness, cost, inconvenience and timing of any defect repair – As neither primary judge nor Full Court assessed damages payable under s 272(1)(a) in accordance with this approach, proceedings remitted to primary judge – W’s appeal allowed.
Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39 (6 November 2024)
Successful appeal from Full Court FCA – Concerned proper construction of s 272(1)(a) Australian Consumer Law (ACL) – Heard immediately after Williams (above) –
In 2012, C purchased Ford Focus fitted with "DPS6" transmission – Experienced various mechanical difficulties – In 2016, commenced representative proceedings against Ford on behalf of people who, between 1 January 2011 and 29 November 2018, purchased motor new or second-hand vehicles fitted with "DPS6" transmission – Vehicles had at least one of five defects, being two "architectural" and three "component" deficiencies – Primary judge said vehicles all supplied in breach of "acceptable quality" guarantee in s 54(1) ACL – Section 271(1) ACL provided if s 54 guarantee not complied with, "an affected person in relation to the goods may ... recover damages from the manufacturer" – Section 272(1)(a) ACL said "an affected person in relation to goods is entitled to recover damages for ... any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates" –
Primary judge awarded C damages under s 272(1)(a) but did not have regard to whether adverse consequences of each defect materialised in C's vehicle or that some defective components were replaced after date of supply, as these factors were considered irrelevant to assessing "the value [of the vehicle] at the date of acquisition" –
Full Court dismissed Ford’s appeal by respondent and upheld C’s cross-appeal –
HC said given its reasoning in Williams case, Full Court’s reasoning here could not be sustained – Said in assessing damages under s 272(1)(a), later acquired knowledge of defect in goods, including effectiveness, cost, inconvenience and timing of any repair, to be attributed to hypothetical reasonable consumer with full knowledge of "state and condition of the goods" at time of supply – Appeal allowed.
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 (6 November 2024)
Answers to questions filed in special case application – HC majority ruled cl 070.612A(1)(a) and (d) of Sch 2 Migration Regulations 1994 (Cth) (Regulations) invalid – Constitutional limit on Commonwealth Parliament’s legislative power transgressed on Commonwealth judicial power and exclusive assignment to judicial power of authority to impose punishment –
Migration Act 1958 (Cth) (Act) provided for classes of temporary visas, bridging visas (BVs), to be granted by reference to criteria and on conditions, as regulations prescribed –
YBFZ stateless Eritrean released from immigration detention on 23 November 2023 after assessment that no real prospect of his removal from Australia becoming practicable in reasonably foreseeable future – Common ground that there was no real prospect and this remains – On 2 April 2024, Minister’s delegate granted YBFZ BV on conditions including monitoring and curfew conditions – YBFZ subsequently arrested and charged with six offences under ss 76C and 76D Act of failing to comply with BV monitoring and curfew condition – All six charges pending in Victorian Magistrates Court –
HC majority said imposing each curfew condition and monitoring condition on BV prima facie punitive and could not be justified – Clause 070.612A(1)(a) and (d) of Sch 2 to Regulations infringe Ch III Constitution and ruled invalid.
Auer v Auer [2024] SCC 36 (8 November 2024)
Unsuccessful appeal from Alberta CA – This and case below both about standard of review applied when subordinate legislation challenged on judicial review before court –
RA and AA married in 2004 – Had one child together and divorced in 2008 – RA paid child support to AA – Applied for judicial review challenging Federal Child Support Guidelines, subordinate legislation which determined child support amount to be paid on divorce – Governor in Council (Governor General acting on Cabinet advice) authorised under Divorce Act to make guidelines dealing with orders for such child support – RA said Govenor General outside power because Guidelines required payer parent like RA to pay greater share of child-related costs than recipient parent –
King’s Bench Court said Guidelines within Governor General’s authority and dismissed RA’s judicial review application – Said following SC decision, reasonableness presumptive standard of review for assessing whether authority to make subordinate legislation – Reasonable decision based on logical chain of reasoning – Had to make sense in light of law and facts, but need not be only right answer – King’s Bench also said reasonableness review should be informed by principles in earlier SC case – Decision to find subordinate legislation to be beyond authority granted by statute because inconsistent with statute purpose, had to show was “irrelevant, extraneous, or completely unrelated” to purpose –
CA unanimously dismissed RA’s appeal but divided on standard of review – Majority said, to conclude, Guidelines not authorized by Divorce Act because they were inconsistent with Act’s purpose, they had to be “irrelevant, extraneous, or completely unrelated” to that purpose – RA appealed to SC –
SC unanimously said later decision set standard – Reasonableness was presumptive standard for reviewing whether subordinate legislation authorised by law – Some principles from earlier case continued to inform such reasonableness review – However, for court to find subordinate legislation to be beyond authority granted in statute because it is inconsistent with statute purpose no longer needed to be “irrelevant”, “extraneous” or “completely unrelated” to statutory purpose – Governing statutory scheme, other applicable statutory or common law rules and principles of statutory interpretation particularly relevant constraints when determining whether subordinate legislation falls reasonably within scope of authority –
Here Guidelines fell reasonably within Governor in Council’s scope of authority under Divorce Act having regard to relevant constraints – Section 26.1(1), granted Governor in Council extremely broad authority to establish guidelines respecting child support – Section 26.1(2) constrained authority by requiring guidelines be based on principle that spouses had joint financial obligation to maintain children of marriage in accordance with their relative abilities to contribute – Guidelines respected constraint – Appeal dismissed.
Transalta Generation Partnership v Alberta [2024] SCC 37 (8 November 2024)
Unsuccessful appeal from Alberta CA – released on same day as above case – Both about standard of review applying when subordinate legislation challenged on judicial review before court – Subordinate legislation set out legally binding rules not made by legislature, such as Alberta Legislative Assembly, but instead by another entity legislature gave authority to make them – Standard of review approach court took to analysing decision such as decision to make subordinate legislation –
TransAlta Generation Partnership owned coal-fired electric power generation facilities in Alberta – In 2016, TransAlta entered into agreement with Alberta – Agreed to cease coal-fired emissions on or before December 31, 2030, in exchange for substantial transition payments from Alberta for 14 years to compensate for losses resulting from reduced life of coal-fired facilities –
TransAlta’s coal-fired facilities assessed as “linear property” for municipal tax purposes – Alberta Municipal Government Act authorised Minister of Municipal Affairs to establish guidelines for assessing value of linear property – In 2017, Minister established 2017 Alberta Linear Property Assessment Minister’s Guidelines under Act – Guidelines, subordinate legislation, deprived TransAlta of ability to claim more favourable tax position because of reduction in its facilities’ lifespan resulting from off-coal agreement – TransAlta said Minister went beyond his authority in making Guidelines because they were discriminatory and inconsistent with Act purposes –
King’s Bench Court said Guidelines valid and did not discriminate against TransAlta – CA dismissed TransAlta’s appeal – TransAlta appealed to SC –
SC unanimously said reasonableness standard presumptively applied when reviewing whether subordinate legislation authorised by law –
Here, no exception to presumption of reasonableness review applied – Having regard to governing statutory scheme, principles of statutory interpretation and common law rule against administrative discrimination, Guidelines within scope of Minister’s authority – Appeal dismissed.
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