New Zealand Law Society - Courts roundup 1 February - 7 February 2024

Courts roundup 1 February - 7 February 2024

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

High Court

New Zealand Supreme Court

Recall, recusal, self-represented litigant

Siemer v Attorney-General [2024] NZSC 1 (30 January 2024)

Unsuccessful recall, recusal application – Self-represented S applied for recall of SC Judge decision of 12 December 2023 upholding Registrar’s decision declining to waive filing fee on application for leave to appeal against CA decision concerning security for costs –

Judge said sole question for determination whether S fell within either reg 5(2)(a) or (b) Supreme Court Fees Regulations 2003 – Latter advanced for first time on review before Judge – Judge said S not within either –

Also recall arguments sought to relitigate original judgment issues – Application dismissed.

Regarding recusal, Judge said S sought recusal because of asserted errors in judgment – Said nature of recall that application addressed to judge or judges who made decision – Not appeal – Recusal application also dismissed.

“Second strike”, time extension

Liai v R [2024] NZSC 2 (1 February 2024)

Unsuccessful time extension application – L serving sentences totalling 11 years 10 months imprisonment for serious violent and sexual offending – “Second-strike” sentences imposed under repealed s 86C Sentencing Act 2002 – Offending committed in 2017 while L on parole for serious first-strike offending –

In 2020, CA dismissed appeal against sentence – In 2023 CA declined to recall decision, saying order requiring sentences be served without parole did not breach s 9 New Zealand Bill of Rights Act 1990 –

L sought leave to appeal to SC out of time against CA’s first decision dismissing his appeal against sentence – SC said leave criteria not met – No risk of miscarriage of justice – Application dismissed.

New Zealand High Court

Public Works Act 1981, compensation for land acquisition, injurious affection

Flath v Minister for Land Information [2024] NZHC 36 (1 February 2024) Grice J and J M Reid

Partly successful appeal against Land Valuation Tribunal – Decision on compensation for land taken and injurious affection following compulsory acquisition for Kāpiti Coast Mackay’s to Peka Peka Expressway – Only judicial decision on compensation regarding this Expressway – Landowners said Tribunal made several errors, including failing to take into account relevant evidence concerning valuation, injurious affection and misdirecting itself about market valuation methodology –

Appeal allowed but compensation assessment not significantly varied – Tribunal took unconventional approach and failed to give sufficient reasons for part of its decision – Nevertheless, adopted appropriate methodology to assess compensation in terms of requirements in s 62(1)(b) Public Works Act 1981 and reached correct outcome on evidence – No error in methodology to assess injurious affection compensation – Dispute over fencing and relocation dealt with by agreement between parties and outside matters under appeal – Value of land taken assessed at $38,000 and injurious affection compensation at $33,000 – Overall compensation increased by $1,000 from Tribunal’s initial determination to correct mathematical error – Appeal allowed.

Judicial review, local government powers

Ours Not Mines Ltd v Hauraki District Council [2024] NZHC 63 (2 February 2024) Harvey J

Unsuccessful application for judicial review of Hauraki District Council's (HDC) decision to grant licence to occupy road reserve in Wharekirauponga Forest to Oceana Gold Ltd to construct mining infrastructure – ONM environmental interest group – Review grounds: (a) HDC had no power to grant licence to occupy under Local Government Act 1974 (LGA 1974); (b) proposed works blocked road constituting public nuisance and HDC not entitled to authorise public nuisance; (c) licence conferred exclusive possession amounting to lease and HDC had no power to grant lease over road; (d) power not exercised for intended purpose therefore improper purpose –

Application declined – HDC's power to grant licence to occupy arises from road reserve ownership (s 316 LGA 1974) – Might not authorise nuisance – However, works did not appreciably interfere with public right to pass and repass road because of existing lack of use and difficulty of accessing road (dense bush indistinguishable from surrounding area) – No power to grant lease but licence did not confer exclusive possession because retained HDC and public right to pass over land – No improper purpose because power derived from landowner status not LGA 1974 – Substantive issues relating to use of road for mining activities better assessed in resource consent process under Resource Management Act 1991 – Application declined.

Supreme Court of Canada

Sexual assault, consent, military court

R v Vu [2024] SCC 1 (16 January 2024)

Unsuccessful appeal from Court Martial Appeal Court – V member of Canadian military – Charged with sexual assault for allegedly performing sexual act on complainant, also military member, without her consent after both attended party and played drinking games –

V tried by military judge in standing court martial – To find accused guilty of sexual assault, Crown had to prove beyond reasonable doubt that he performed sexual act without complainant’s subjective consent –

Military judge said V not guilty of sexual assault – Said Crown failed to prove beyond reasonable doubt complainant too intoxicated to consent – Based on direct video evidence, judge thought it possible complainant consented to sexual act, in which case act would not have constituted sexual assault – V acquitted –

Crown appealed to Court Martial Appeal Court of Canada – Said military judge did not consider entirety of evidence, including circumstantial evidence such as witness testimonies and accused’s statement to military police – CA majority dismissed appeal –

Crown appealed to SC – SC majority dismissed appeal and upheld acquittal.

Fraud, inability to work

R v Landry [2024] SCC 2 (17 January 2024)

Unsuccessful appeal from Quebec CA – L police officer with Sûreté du Québec (SQ) – In 2009, family doctor recommended that he stop working temporarily because of health problems – Inability to work confirmed and extended for several years – While off work, L manager in former spouse’s travel agencies and travelled frequently –

In 2014, L met with physician-arbitrator to have inability to perform work as police officer assessed – During meeting, L minimised role in travel agencies and negatively presented state of psychological health in general – SQ had information about L’s activities before meeting, but did not share with physician‑arbitrator – Physician‑arbitrator found L permanently unable to perform police officer duties – SQ did not contest findings – Because of permanent disability, L entitled from then on to full salary, including all employment-related benefits, until retirement in 2026 –

Further to physician‑arbitrator’s report, SQ’s professional standards division began investigating L – Eventually led to formal charge of fraud over $5,000 being laid against him –

Court of Québec judge majority convicted L of defrauding SQ and sentenced him to six months’ imprisonment – CA majority agreed with trial judge and dismissed appeal –

SC dismissed L’s appeal and upheld fraud verdict.

Constitutional law, Canadian Charter, right to instruct counsel without delay

R v Brunelle [2024] SCC 3 (26 January 2024)

Unsuccessful appeal from Quebec CA – Following investigation beginning 2014, large‑scale police operation launched in 2016 in three regions in Quebec – Some 30 people arrested and charged with various indictable offences related to production of and trafficking in narcotics – At time arrested, people all informed of their constitutional right, guaranteed by s 10(b) Canadian Charter of Rights and Freedoms to retain and instruct counsel without delay – Many indicated wanted to exercise right as soon as they were informed of it, some did not ask to exercise right until they were at police station and others said did not wish to retain and instruct counsel or had already done so – In end, of those indicating desire to exercise right immediately, only one given opportunity while in police vehicle –

Accused divided into four different groups for separate trials – Those in first group, who were to be tried first, filed motion for stay of proceedings saying multiple infringements of their constitutional rights during police investigation and operation – Alleged accumulation of infringements of constitutional rights, particularly right to retain and instruct counsel without delay, amounted to abuse of process for all of them even though several not victims of any infringements – Accused in other three groups filed motions similar to first group –

Trial judge entered stay for people in first group – Said, police postponing exercise of right to counsel until people taken to police station infringed right under s 10(b) Charter of everyone in group – Relying on cumulative effect of infringements, which he considered to be most serious ones and other infringements occurring during police action – Judge ruled police abuse of process – Stay of proceedings also entered for accused people in other three groups based on these findings –

Quebec CA allowed Crown appeals and ordered new trial be held, including new hearing on stay motion – CA’s view some people did not have standing to obtain stay because remedy could only be granted to people whose own constitutional rights infringed – Also said judge erred to enter stay for all without first assessing whether rights of each of them had been infringed – Accused appealed to SC –

SC majority dismissed appeal – Said all had standing to apply for remedy even though some not victims of any infringement constituting alleged abusive conduct –

However, trial judge had to determine whether each person’s right under s 10(b) infringed and he did not do so – Finally, trial judge erred to enter stay for all without first considering less drastic remedies that could have fully redressed prejudice to integrity of justice system that he thought he had identified – Error justified new trial for first group, as well as new hearings on stay motions – Appeal dismissed.

United Kingdom Supreme Court

Negligence, duty owed to who?

Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [2024] UKSC 1 (11 January 2024)

Unsuccessful appeals from CA – Claimants in three cases each claiming compensation for negligence for psychiatric illness caused through witnessing death of close family member in distressing circumstances – In each case, death allegedly caused by negligence of defendant doctor or health authority in failing to diagnose and treat life-threatening medical condition –

In both cases, defendant applied to have compensation claim summarily dismissed saying, assuming all facts alleged true, as matter of law claim could not succeed –

By different routes, issue in each case reached CA, which heard appeals together and dismissed all three claims – Claimants appealed to SC –

SC six to one majority dismissed appeals – Said while doctors owed duty of care to protect their patients’ health did not owe duty of care to members of patient’s close family to protect them against risk of illness from witnessing death or medical crisis of their relative from condition which doctor has negligently failed to diagnose or treat – CA orders upheld – Appeal dismissed.

Maritime law, General average, liability for ransom payment

Herculito Maritime Ltd v Gunvor International BV [2024] UKSC 2 (17 January 2024)

Unsuccessful appeal from CA – Under voyage charterparty dated 20 September 2010 (charter), MT Polar (vessel) chartered to Clearlake Shipping Ltd (charterer) for voyage from St Petersburg to Fujairah or, in charterer’s option, Singapore (voyage) – Vessel’s master issued six bills of lading (bills of lading) dated between 29 and 30 September 2010 and 2 October 2010 recording shipment of total cargo of 69,493.28 tonnes of fuel oil (cargo) –

On 30 October 2010, Somali pirates seized vessel while she was transiting designated “High Risk Area” in Gulf of Aden – Vessel held captive for 10 months before release on 26 August 2011, following payment of ransom of USD $7,700,000 by or on behalf of vessel’s owner (shipowner) –

General average, which required parties to apportion extraordinary expenses incurred for preservation of ship and cargo, declared by shipowner – In due course general average adjustment concluded US$5,914,560 due to shipowner from respective cargo interests (cargo interests) –

Cargo interests said had no liability in general average for ransom payment – Said, on true construction of contract with shipowner under bills of lading, shipowner’s only remedy was to recover ransom payment under terms of additional insurance cover taken out regarding such risks under terms of governing voyage charterparty, premium for which was payable by charterer –

On 8 January 2020, arbitration tribunal upheld cargo interests’ case – On appeal, shipowner’s appeal – CA upheld appeal decision – Cargo interests appealed to SC –

SC unanimously dismissed appeal – Said, among other things, established that contractual parties may agree that specified loss or damage to be covered by insurance and in event of such loss or damage occurring parties will seek recourse against insurers rather than their contractual counterparty – If so, parties may have intended to create ‘insurance fund’ or ‘insurance code’ where recourse to insurers is sole avenue for making good relevant loss or damage – In shipping context, insurance code or fund held to exist under demise charter and under time charter – This was first case where necessary to consider whether there was an insurance code or fund in voyage charter and, if so, bills of lading which incorporated voyage terms – Here, no insurance code or fund agreed in charter – Appeal dismissed.

Family law, power to grant financial remedies after overseas divorce

Potanina v Potanin [2024] UKSC 3 (31 January 2024)

Successful appeal from CA – Courts in England and Wales had power under Part III Matrimonial and Family Proceedings Act 1984 (1984 Act) to grant financial remedies after overseas divorce – Before granting remedy, court must consider whether it would be appropriate for court in England and Wales to do so having regard to factors which include connections of parties with England and Wales, with country in which they were divorced and with any other country –

Parties here Russian citizens who, until wife took up residence in London after divorce, had both lived in Russia all their lives, as husband still did – Both born in Russia in 1961, married in Russia in 1983 and Russian court dissolved their marriage in 2014 – Initially, not well off but, since 1990s, husband accumulated vast wealth – Following divorce, extensive litigation ensued in Russian courts about asset division – Final outcome that wife received half value of assets husband owned – But award left out of account most wealth husband accumulated, held by various trusts and companies – Russian courts did not regard these as marital assets –

Immediately after couple divorced in 2014 wife obtained UK investor visa and bought flat in London – Since 2017 habitually resident in England – In 2018 she applied for permission to seek financial remedy under Part III 1984 Act – Under applicable court rules application made without notice to other party unless court directs other party should be notified – If application granted, court rules then gave other party when served right to apply to set aside or vary order –

Wife’s application here made and heard without notice to husband and without him being aware of application – Judge granted permission – After court’s order served on him, husband applied to have it set aside – After hearing where both parties represented, judge decided had been materially misled at first hearing and, considering matter afresh after hearing argument from both sides – Said test for granting permission under 1984 Act not met (mainly because connection of parties with Russia was infinitely greater than their connection with England and Wales) – Judge set aside original order and refused wife permission to apply for financial remedy under Part III –

Wife appealed to CA – CA took law to be power to set aside only to be exercised where some “compelling reason” to do so and in practice only where court misled – Also CA said must be possible to demonstrate such compelling reason by “knockout blow” – On facts here said judge not materially misled at initial hearing – Followed judge not entitled to set aside original order granting permission, which should therefore be restored –

Husband appealed to SC – SC 3-2 majority allowed appeal – Said, among other things, fundamental rule of procedural fairness that, before making order requested by one party, judge must give other party chance to object – If for some reason not practicable to do this, judge must do next best thing, which is, if judge makes order, to give other party opportunity to argue order should be set aside or varied – Always unfair to make final order, only capable of correction on appeal, after hearing only from party who wants you to make order without allowing other party to say why order should not be made – Saw “knockout blow” test as inappropriate –

Minority said SC should leave “knockout blow” test in place – Unanimous, if nonbinding, SC guidance – Subsequently CA endorsed – Since then, family law judges applied consistently and without criticism or dissent – Would have allowed appeal – Following majority, Appeal allowed.

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