New Zealand Law Society - Courts roundup 8 August - 14 August 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Pilgrim v Temple [2024] NZSC 90 (5 August 2024)
Unsuccessful leave application – P and others (P) Gloriavale Community members – Sought declaration under s 6 Employment Relations Act 2000 (ERA) had been employees during time at Gloriavale and worked at cooking, cleaning and doing laundry for community –
Employment Court said while neither party regarded themselves as being in employment relationship at relevant time, s 6 ERA “construed purposively, was intended to apply to the relationships at issue in this case” – Said although P did not expect to be paid, nonetheless worked for “hire or reward” within meaning of s 6(1)(a) – “Reward” identified as “necessities of life”, “promise of spiritual redemption” and permission to stay in Community –
CA granted Temple and others (T) leave to appeal on two questions of law: (a) Did P work for hire or reward within meaning of s 6(1)(a) ERA; and (b) If not, were they volunteers for purposes of s 6(1)(c) ERA?
P sought leave to appeal to SC against CA granting leave to appeal to CA – Said CA had limited statutory jurisdiction to consider questions of law on appeal from Employment Court – Said T had not raised approved questions – CA therefore exceeded statutory jurisdiction –
SC said within SC jurisdiction and constitutional function to review CA’s interpretation of its own statutory jurisdiction – However, leave criteria not met here – CA is given broad jurisdiction to grant leave under s 214 ERA – Nothing in legislation preventing CA from reformulating proposed questions –
SC saw no apparent error in CA exercising jurisdiction, therefore no risk of substantial miscarriage of justice (as expression is used in civil context) – Nor did appeal raise matter of general or public importance – Application dismissed.
Whittington v Solicitor-General [2024] NZSC 93 (5 August 2024)
Unsuccessful leave application – Self-represented W sought leave to appeal against HC judgment of 23 May 2024 – W sincerely believed causes of mother’s death recorded in death certificate false and mother’s death caused by medical neglect and criminal actions – On 7 December 2020, Deputy Solicitor-General confirmed decision not to order coronial inquiry –
W applied for judicial review saying decisions pre-determined, breached duty of investigation under s 8 New Zealand Bill of Rights Act 1990 and was sufficient evidence to support claim for inquest – HC said, among other things, evidence before Court did not support existence of error in decisions not to order coronial inquiry – Nor did evidence support conclusion cause of death suspicious and incorrectly recorded on death certificate – Judicial review application declined –
SC said matters W sought to raise related to particular factual circumstances of case – No issues of general or public importance arose – Also, no exceptional circumstances justifying direct appeal to SC from HC – Application dismissed.
Deliu v Harborow [2024] NZSC 94 (5 August 2024)
Unsuccessful leave application – Self-represented D sought leave to appeal against CA decision that funds held in trust in HC in unrelated proceedings be released to H and F to satisfy costs orders made against D –
SC said first appeal ground did not have sufficient prospects of success to warrant leave being granted – Other grounds related to particular facts and raise no point of general or public importance – Also, nothing D raised suggested CA might have been wrong, thus no risk of miscarriage of justice – Application dismissed.
Banks v Farmer [2024] NZSC 95 (6 August 2024)
Unsuccessful leave application – B sought leave to appeal to SC on matters relating to application of ss 135, 136 and 301 Companies Act 1993 and s 9 Fair Trading Act 1986 (FTA) – Applications arose from insolvency and liquidation of Mako Network Holdings Ltd (Mako), company which responsible for developing and patenting network security management system – H and others (H) were Mako directors – B Mako creditor –
HC dismissed B’s application – CA dismissed his appeal – Application to recall CA judgment also dismissed –
SC satisfied leave criteria not met here – Said FTA claim attempt to revisit concurrent factual findings in HC and CA – SC accepted argument advanced regarding s 136, in abstract, one of potential general commercial significance – However, not appropriate appeal to examine question because B faced insuperable factual findings – Application dismissed.
Bullock v R [2024] NZSC 96 (7 August 2024)
Unsuccessful leave application – B applied for leave to appeal against CA after they dismissed appeal against conviction on several charges of sexual offending relating to two victims – Proposed appeal would challenge CA finding that B adequately advised to make informed decision on whether to give evidence at trial –
SC said no challenge to applicable legal principles CA applied concerning defence counsel’s duties regarding client’s election decision – Rather, challenge to application of these settled principles to particular facts – Leave criteria not met – Application dismissed.
Holmes v Senior Trust Capital [2024] NZCA 369
Unsuccessful appeal against granting of summary judgment against the appellants as guarantors of a mortgage - Senior Trust Capital Ltd (Senior Trust), provided finance to Roy’s Bay Estate Ltd (Roy’s Bay) for a property development - The loan was secured by a mortgage and guaranteed by the appellants - Roy’s Bay was unable to repay the facility and negotiated a sale of the property - That contract had not settled when Senior Trust exercised its power of sale under the mortgage - It sold the land to a subsidiary of the original purchaser - The sale of the land did not realise sufficient funds and Senior Trust sought judgment against the appellants as guarantors -
Senior Trust acted in good faith when negotiating and concluding the agreement - Senior Trust had genuinely tried to obtain the best price it could for land that was not particularly easy to sell - There was no evidence Senior Trust sought to harm the interests of either Roy’s Bay or the guarantors – The appeal was dismissed.
Commissioner of New Zealand Police v Akavi [2024] NZCA 367
Successful appeal regarding a profit forfeiture order - The High Court had made a profit forfeiture order for $98,850.54 against Akavi under the Criminal Proceeds (Recovery) Act 2009 (CPA) – Akavi had pleaded guilty to methamphetamine charges - The Commissioner submitted the sum awarded should have been $468,000 – That figure was calculated on the basis Akavi had either directly, or through his subordinates, sold a minimum of one ounce of methamphetamine per week, at $9,000 per ounce, for the year preceding his arrest -
The High Court erred in law in its interpretation s53 CPA (value of benefit presumed to be value in application) by failing to take the presumed value of the unlawful benefit as the value stated in the Commissioner’s application, and in its application of s55 CPA (making profit forfeiture order) by granting a profit forfeiture order for a value other than the maximum recoverable amount - The Profit forfeiture order amended to $468,000.
Chien v R [2024] NZCA 379
Unsuccessful appeal by Chein against a sentence of five years and two months imprisonment – Chein had pleaded guilty to drug and firearm-related charges – A starting point of 12 years was adopted – Chein received a discount of 25 per cent for his guilty pleas - The Judge accepted his background and mental health difficulties had causatively contributed to the offending, and applied a discount of 15 per cent - Chien also received a 10 per cent discount for his rehabilitative prospects and remorse was adequate - Chein submitted he should have received a five per cent discount for remorse and a 35 per cent discount for rehabilitation -
Authorities did not support a discount of 35 per cent for rehabilitation in the circumstances - It would have been open to the Judge to give separate discounts for remorse and rehabilitation – Given the other discounts approached 60 per cent, the discount for remorse and rehabilitation did not lead to a manifestly excessive sentence – It was arguable the discounts given were generous.
[I] v R [2024] NZCA 376
[A] v R [2024] NZCA 378
Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (7 August 2024)
Successful appeal from South Australia CA – Central question in appeal whether proportionate liability laws in Pt 3 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (Law Reform Act) and Pt VIA Competition and Consumer Act 2010 (Cth) (CCA) applied in arbitration conducted under Commercial Arbitration Act 2011 (SA) –
T and P entered into contract for T to provide engineering consultancy work in connection with building works comprising Pascale’s design of multilevel warehouse in South Australia – Contract provided for conciliation of any dispute between parties – If dispute not resolved by conciliation, either party could refer dispute to arbitration – Dispute regarding standard of T’s work referred for arbitration – P claiming damages for breach of contract and negligence and, under s 236 Australian Consumer Law, for misleading or deceptive conduct contravening s 18 Australian Consumer Law – T denied liability or alternatively contended liability should be reduced by reference to alleged concurrent wrongdoing of third party in accordance with Pt 3 Law Reform Act and/or Pt VIA of CCA – As non-party to contract, third party not and could not be required to be party to arbitration – P denied applicability of proportionate liability laws to arbitration –
To resolve whether proportionate liability laws applied, arbitrator ordered T to apply to South Australian SC, under s 27J Commercial Arbitration Act, for leave to obtain Court determination of following question of law: "Does Part 3 of [the Law Reform Act] and/or Part VIA of [the CCA] apply to this commercial arbitration proceeding conducted pursuant to the legislation and the [Commercial Arbitration Act]?" – Question referred to CA – CA said no – Said proportionate liability laws not amenable to arbitration because arbitrator could not apply laws except in manner differing materially from regimes relevant legislation intended – Relied on two matters: (1) proportionate liability regimes contemplated that plaintiff had opportunity to join all wrongdoers in one set of proceedings; and (2) inability to join all wrongdoers to arbitration except by consent –
HC majority said proportionate liability laws in Pt 3 Law Reform Act and Pt VIA CCA applied to arbitration – Inability to join all alleged concurrent wrongdoers to arbitration did not mean proportionate liability laws inapplicable – HC substituted affirmative answer to question of law referred to CA – Appeal allowed.
Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 (7 August 2024)
Unsuccessful appeal from Queensland CA – Concerned principles governing when common law duty to take reasonable care to avoid causing pure economic loss arose – Issue whether duty arose between product producer and end users –
Producer one of two producers of grain sorghum seed for distribution and sale in Australia – Growers were farmers cultivating and selling grain sorghum – In summer of 2010-2011, growers purchased bags of seed from distributor authorised by producer – Bags bore prominent labels saying "[m]inimum purity" of seed was "99%" – Disclaimer also printed on bag provided “ [producer] will not be liable to [consumer] or any other person for any injury, loss or damage caused or contributed to by [the producer] ... arising out of or related to the use of the product in this bag" – If those terms were not agreed to by consumer, bag should not be opened and instead returned for refund –
Some months after seed planted, growers became aware seed contaminated with seed of another plant, shattercane – Growers commenced class action in Queensland SC alleging contaminated grain sorghum seed caused them pure economic loss being reduced income and increased expenditure – Both primary judge and CA said producer not liable to growers in negligence because producer did not owe them duty of care –
HC dismissed growers' appeal – Said producer did not owe growers duty to take reasonable care in grain sorghum seed production process to avoid risk that growers would sustain pure economic loss because of hidden seed defect – Ordinarily, person did not owe duty to take reasonable care to avoid causing reasonably foreseeable pure economic loss to another – Where defendant assumed responsibility towards plaintiff to take reasonable care to avoid causing economic loss to plaintiff, duty of care might be established – However, producer had not assumed responsibility to growers here – Facts also fell short of identifying relationship between producer and growers that would lead to existence of duty to take reasonable care when producing grain sorghum seed to avoid causing growers pure economic loss of type claimed – Appeal dismissed.
Cook (a pseudonym) v R [2024] HCA 26 (7 August 2024)
Successful appeal from New South Wales CA – Concerned whether evidence relating to prior sexual offending committed against complainant by another person (Queensland conduct), could be admitted in C's trial under exception to s 293(3) Criminal Procedure Act 1986 (NSW) – Section 293(3) (as it then was, now s 294CB) made inadmissible evidence of complainant’s sexual experience or sexual activity –
Following trial in New South Wales DC, C convicted of multiple sexual offences – Prior to alleged offences, complainant allegedly disclosed Queensland conduct to C – C applied for pre-trial ruling evidence relating to Queensland conduct admissible under exception to s 293(3) contained in s 293(4)(b) – Section 293(4)(b) permitted admission of evidence that "relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant" –
While accepting evidence was "significantly probative", trial judge said s 293(4)(b) exception did not apply – Trial judge nonetheless permitted C to cross-examine complainant on basis Queensland conduct would be referred to as "physical assaults" – C successfully appealed conviction on grounds unrelated to s 293 – CA said new trial be ordered, but majority said evidence relating to Queensland conduct not admissible under either exception in s 293(4)(a) or (b) – Section 293(4)(a) permitted admission of evidence that: "(i) is of the complainant’s sexual experience … or of sexual activity ... taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offences"; and "(ii) is of events ... alleged to form part of a connected set of circumstances in which the alleged sexual offences [were] committed" –
HC unanimously said s 293(4)(a) exception did not apply, given exception limited to contemporaneous or near-contemporaneous events sufficiently integrated with alleged offending so that events part of circumstances of alleged sexual offence itself – Majority said s 293(4)(b) exception potentially applied and allowed appeal on that basis – In absence of sufficient material to identify nature and scope of relationship between complainant and C, Court could not determine whether s 293(4)(b) could apply to evidence relating to Queensland conduct – Matter for trial judge to consider at C’s re-trial – Appeal allowed.
QX v Secretary of State for the Home Department [2024] UKSC 26 (5 August 2024)
Unsuccessful appeal from CA by Home Secretary – Arose from QX’s application for review of Home Secretary’s decisions relating to imposing temporary exclusion order (TEO) under CounterTerrorism and Security Act 2015 (2015 Act) – TEO purpose to protect UK public from terrorism risk person subject to order posed – TEO controlled timing and manner of person’s return to UK – Also enabled Secretary to impose suitable obligations on person when they returned –
QX (UK citizen) lived in Syria between 2014 and 2018 – On 26 November 2018, Secretary applied to HC for permission to impose TEO on QX, alleging QX travelled to Syria and was, or had been, aligned al-Qaeda aligned group (Syria allegation) – HC granted permission and Secretary imposed TEO – QX was at that stage faced deportation from Turkey to UK – Returned to UK on 9 January 2019, in accordance with terms of permit Home Secretary issued –
On return, QX served with TEO and notice of related obligations imposed on him by Secretary – Included obligations to report at specified police station at particular time every day (reporting obligation) and to attend two two-hour appointments every week (appointments obligation) – TEO expired on 25 November 2020 and obligations came to end – On 24 March 2021, QX convicted of breaching reporting obligation because failed to report at specified police station on three occasions – Received suspended sentence of 42 days’ imprisonment –
In November 2019, QX applied to HC to review Secretary’s decision to impose reporting and appointments obligations (obligations review) – Later also sought review of Secretary’s decision to impose TEO and to maintain it in force (imposition review) – Dispute then arose between parties over whether QX entitled, by reason of right to fair hearing guaranteed by article 6(1) European Convention on Human Rights ("Convention") and implemented in domestic law by Human Rights Act 1998, to disclosure of evidence Secretary relied on to support Syria allegation – Issue SC asked to decide in this appeal –
HC said article 6(1) applied to obligations review, but not imposition review – Followed that, in obligations review, QX entitled to disclosure of any evidence relating to Syria allegation Secretary relied on to support decision to impose reporting and appointments obligations, to extent article 6(1) required – However, not entitled to disclosure of any other evidence relating to Syria allegation Secretary relied on in imposition review, to support decision to impose TEO – CA allowed QX’s appeal on this issue – Said article 6(1) applied to imposition review because it would be directly determinative of QX’s civil rights – QX entitled disclosure in imposition review which complied with article 6(1) – Secretary appealed to SC –
SC unanimously dismissed appeal – Said right to fair hearing guaranteed by article 6(1) applied to imposition review – Secretary required to provide QX with article 6(1) compliant disclosure evidence relied on to support of Syria allegation in both imposition review and obligations review – Appeal dismissed.