New Zealand Law Society - Courts roundup 15 December - 18 January 2023

Courts roundup 15 December - 18 January 2023

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

court of appeal

New Zealand Supreme Court

Easements, public work

Dromgool and ors v Minister of Land Information [2022] NZSC 157 (22 December 2022)

Unsuccessful appeal from CA – Top Energy Ltd (TEL) electricity lines company in Far North,  North Island – Planned to construct new transmission line between Kaikohe and Kaitaia – Had to secure easements over properties on transmission route – Three landowners, including D, did not agree – TEL applied to Minister for Land Information under s 186(1) of Resource Management Act 1991 (RMA) to have easements acquired or taken under Public Works Act 1981 (PWA) – Minister agreed and initiated PWA process – Negotiations with D failed – They said TEL and Minister had not properly considered alternatives –

In June 2017, Minister executed notices of intention to take easements – D objected to Environment Court, alleging deficiencies in s 186 decision-making process – Court resolved objection in Minister’s favour – D then appealed to HC and CA – Courts took different approaches – D appealed to SC –

SC majority dismissed appeal – Said s 186(1) decision is not fully discretionary – Minister had to exercise s 186(1) power reasonably and with regard to s 24(7) and statutory scheme as a whole – Minister could not grant a s 186(1) application unless satisfied was appropriate to set in train PWA process that could ultimately result in a taking – Approach reflected that s 186(1) decision did not itself result taking: it is only after PWA process followed (including negotiations) and Minister notifies intention to take land that taking formally occurred – Appeal dismissed.

Misuse of drugs, sentencing

Philip v R [2022] NZSC 149 (16 December 2022)

Successful appeal against sentence – Between December 2018 and March 2019, P and partner H transported five shipments of methamphetamine from Auckland to Wellington, under M’s direction – On most trips someone else placed drugs into hidden compartments in car – On one occasion, P’s adult son also involved in driving and on two other occasions, P and H engaged another person to drive on their behalf – P convicted of five charges of possession of methamphetamine for supply and two charges of possession of cannabis –

P’s sentence based on six kilograms of methamphetamine being transported – Placed him in Band five of guidelines – Attracted 10 years to life imprisonment starting points – HC judge satisfied P played “lesser role” – Among other matters, under direction and motivated by methamphetamine addiction – Judge adopted six year starting point, differing from earlier sentencing indication due to changes in facts basis – Same starting point adopted for H –

Judge also gave P 20 percent discount for guilty pleas; 30 percent range of personal factors, including remorse and clear motivation for and commitment to rehabilitation; and further 10 percent sentence impact on his young child – Discount time spent on electronically monitored bail led to end sentence two years’ imprisonment – Judge satisfied one year’s home detention appropriate in circumstances –

CA disagreed with HC – Said P’s role “at least on the cusp between lesser and significant categories of involvement” – Starting point at least nine years justified, but because eight-year starting point used in sentencing Judge’s earlier indication, CA adopted eight-year starting point – Did not interfere with discounts except to disallow discount for sentencing impact on child – Some credit given for time served on home detention – Two years 11 months’ imprisonment substituted –

P appealed to SC – SC unanimously allowed appeal, quashing two years and 11 months and substituting one year and seven months’ imprisonment – Sentence equated to time required to be served under short term sentence – Parties agreed would result in P’s immediate release – Appeal allowed.

New Zealand Court of Appeal

Limitation, natural justice, damages

X v Chief Executive of Oranga Tamariki [2022] NZCA 622

Appellants were approved caregivers for Oranga Tamariki (OT) – Placement with appellants of four young brothers with “high and complex needs” ultimately failed – Breach of natural justice under s27(1) New Zealand Bill of Rights Act 1990 found – Negligence claim, for novel duty on OT to take reasonable care to minimise risk of placement failure, dismissed due to defence under the Limitation Act 2010 – Whether declaratory relief statute-barred – Whether Baigent damages should have been awarded – HELD: Judge erred in not addressing claim for declaratory relief – Claim for declaration of negligence not a money claim for the purposes of the Limitation Act – Discretion to grant declaratory relief not removed by a statutory bar to compensatory relief and generally not time barred – Not appropriate case to allow pursuit of only declaratory relief for a claim of negligence where compensation claim time-barred – Award of damages for breaches for natural justice rare but possible, and appropriate in this case where breaches were serious and compounded by their consequences – Appeal allowed in part – Damages of $20,000 and $10,000 awarded for breaches of right to natural justice.

Limitation, negligence, building consent

Beca Carter Hollings & Ferner Ltd v Wellington City Council [2022] NZCA 624

Appellant (Beca) provided engineering and design consultancy services under contract for waterfront building – Building suffered irreparable damage in the Kaikōura earthquake – Proceedings against Wellington City Council alleging was negligent in issuing of building consent and code compliance certificates, and seeking damages – Council pleaded limitation defences and filed third party proceedings against Beca – Whether HC correct to find that: (a) the 10 year long stop in the Building Act 2004 did not apply to Council’s claim for contribution from Beca; and (b) facts were not sufficiently clear to grant Beca summary judgment – Legislative history of limitation law – Distinct legal and conceptual basis for a claim for contribution between two tortfeasors as opposed to a claim in negligence for damages by a plaintiff from a tortfeasor – HELD: 10 year long-stop did not preclude the Council from commencing claim for contribution – Section 34 Limitation Act 2010 determinative – Summary judgment not appropriate as insufficient understanding of factual circumstances – Appeal dismissed.

Criminal, notice of abandonment

Taylor v R [2022] NZCA 626

T found guilty in 2004 following jury trial on charges of murder and causing grievous bodily harm (GBH) with intent – Appeal against conviction abandoned in 2005 – Leave sought to withdraw notice of abandonment and proceed with appeal – Alleged miscarriage of justice, in particular because of errors made by trial counsel meaning T’s decision not to give evidence was not fully informed, and failure to call material witness – Test for setting aside notice of abandonment in Cramp v R – HELD: context in which appeal abandoned were exceptional – Clear link between misconduct of lawyer assigned after sentencing and abandonment of appeal such that interests of justice pointed clearly to allowing appeal to proceed, notwithstanding interests of finality – Miscarriage of justice as a result of trial counsel error not made out – Notice of abandonment of appeal set aside, but appeal dismissed.

Gas pipeline easement access

Gibbs v First Gas Ltd [2022] NZCA 627

Respondent (FGL) owned and operated the Maui Gas Pipeline – HC made declarations that FGL be authorised to enter onto appellant’s land with machinery as required for the purposes of inspecting and repairing the Pipeline – At issue was whether the easement rights were restricted to a 12 metre wide strip and any access across appellant’s land otherwise had to be the subject of negotiation and agreement – Ordinary principles of statutory and contractual interpretation – HELD: pipeline easement certificates (PECs) meant FGL had a right of entry on the land to which the certificate related – Rights not confined to the easement strip – FGL not bound by agreement between MDL and Federated Farmers (FF) executed in about 1974 – Agreement predated construction of the pipeline, MDL no longer in existence, no evidence appellants were members of FF at the time (no contractual nexus), and PECs superseded any agreement – Permanent injunction within Judge’s discretionary powers – Appeal dismissed.

Evidence - Login Required

Heremaia v R [2022] NZCA 640

H charged with importing cocaine (Class A drug) – Drug found concealed in suitcases belonging to H and his travelling companion D when they arrived at Auckland Airport – Charge against D dismissed but at time charges against D still on foot and joint trial anticipated, Court held Snapchat messages on D’s phone admissible – With change of circumstances, D now a compellable witness and evidence was inadmissible hearsay evidence rather than propensity evidence – D likely to claim privilege against self-incrimination if summoned as witness – HELD: none of the s18 Evidence Act 2006 exceptions were advanced before the DC so CA not able to consider – If CA made decision as a matter of first impression without benefit of decision by trial court, constrained parties’ appeal rights, and CA not well-placed to make a decision about expense or delay that would be caused at trial if D required to be a witness – Appeal dismissed (noted did not preclude an application to admit the Snapchat messages as hearsay evidence at trial).

Criminal disclosure, informer privilege - Login Required

Wright-Meldrum v R [2022] NZCA 649

W to stand trial for murder of AB in 1996 – W’s one-time partner P admitted murdering AB and stated he did so with W’s help and at H’s direction – Original police investigation did not lead to an arrest, but in 2019 police offered a reward of up to $100,000 for relevant information and Witness X, the informer, spoke to police and subsequently provided helpful information – X’s disclosure led to P being interviewed and P’s evidence central to case against W – Information had been disclosed to X by a third person, “A” – Disclosure of identities of both X and A declined – HELD: disclosure of A’s identity likely to disclose that of X – Necessary that W know A’s identity on assumption that the Crown might call A as a recent invention witness after the defence put to P at trial – Not necessary that the defence know X’s identity – Unless Crown offered a commitment not to call A, appeal allowed to that extent.

Sentence, youth discount

A (CA 104-2022) v R [2022] NZCA 651

A found guilty of sexual offending against his half-sister on three occasions during their childhood spanning a 5 year period (2012, 2014, and 2017) – At issue was whether sentence imposed of 4 years 9 months imprisonment was manifestly excessive – A aged between 14 and 19 years at times of offending – Total discount for personal mitigating factors was 42.5 percent – HELD: A was under the age of 18 years at the time of the 2012 and 2014 incidents – Uplifts accounting for charges relating to those events were contrary to s18 Sentencing Act 2002 – Proper starting point was 6 years 9 months imprisonment (additional 18 months should not have been imposed) – Factor of youth, on its own, deserving of greater recognition than that given by Judge – Discount of 50 percent justified, with additional 5 percent for rehabilitative potential – Appeal against sentence allowed and end sentence of 3 years imprisonment substituted.

Guardianship dispute, second appeal

Hopkins v Jackson [2022] NZCA 653

Unsuccessful application for leave to appeal under s145 Care of Children Act 2004 (COCA) – K was in the joint care of her parents on a 2:2:3 day care regime – FC determined differences between the parties about care arrangements and which school K should attend – Father successfully appealed to the HC – A decision made under s46R could be the subject of an appeal under s145 where it was closely intertwined with a decision under other provisions of COCA (L v K) – Material error of law required – HELD: decision about the school K would attend under s46R was so intertwined with decision about care arrangements under s48 that would be artificial and unworkable to separate the two issues – Not in the interests of justice to grant leave to bring second appeal in this case – Not an appropriate case for the CA to clarify the law in relation to adducing evidence about tikanga in FC proceedings (not material to outcome) – Need to focus on K’s best interests – Application declined.

Conviction appeal, trial counsel error - Login Required

Browne v R [2022] NZCA 655

B convicted of possession of methamphetamine (Class A drug) for the purpose of supply – Three other charges were dismissed at end of Crown case – Charges resulted from search of B’s vehicle – Conviction appealed on the basis that errors by trial counsel engendered a risk of a miscarriage of justice – Gang member – Always a risk of unfair prejudice when evidence of gang activity or association introduced – HELD evidence relating to previous police operations investigating gang members for drug dealing and gang members unconnected to B being charged with serious methamphetamine offending should not have been led – evidence surrounding W’s arrest and her association with B was irrelevant to any fact in issue in B’s trial and highly prejudicial to his defence – Significant errors made which led to evidence of nominal relevant and probative value but highly prejudicial effect being led at trial – Appeal against conviction allowed – Retrial ordered.

Warrantless search, evidence admissibility - Login Required

Smith v R [2022] NZCA 660

S was stopped at a police cordon point on afternoon of the Christchurch Mosque terrorist attack in 2019 – Warrantless search of S’s vehicle led to charges of possession of methamphetamine (Class A drug) for supply, unlawful possession of a pistol, unlawful possession of explosives (ammunition), and offering to supply methamphetamine – At issue was admissibility of items seized, and lawfulness of the stop and subsequent search of S’s vehicle – HELD: section 35 Policing Act 2008 did not give police the power to “ascertain the safety” of a vehicle, either by undertaking a visual search of the interior or by ordering S to open the boot – Sections 14, 18, and 116 Search and Surveillance Act 2012, and the police common law powers and duties to protect life and safety, meant the police actions in the context of the unprecedented events that day were lawful – Appeal dismissed.

New Zealand High Court

Self-represented litigant, urgent stay

G v Commissioner of Police and ors [2022] NZHC 3628 (22 December 2022) Isac J

Commissioner of Police successfully applied to stay  effect of Court judgment dated 19 December 2022 to extent judgment might impose obligation, whether legal or constitutional, upon Executive to give effect to ruling in respect of persons other than G, pending determination of appeal filed in CA for hearing in that Court on 2 February 2023.

Ex parte, without notice Interim injunction

Te Whatu Ora Health New Zealand & Attorney General (In respect of) Ministry Of Justice v Unknown Defendants [2022] NZHC 3568 (20 December 2022) Grice J

Successful interim injunction application – Applicants sought without notice interim injunctions restraining use or access to wide range of data subjected to ransomware attack and demands – Data included confidential information relating to individuals and their personal affairs held by third-party private IT provider –

HC granted orders against all persons restraining use, access or distribution of confidential information – Serious question to be tried and balance of convenience favoured granting orders in terms sought – Safeguards imposed, including service on Privacy Commissioner and various news media organisations, with leave for interested parties to apply on notice.

Self-represented litigant, “501 deportee”

G v Commissioner of Police and ors [2022] NZHC 3514 (19 December 2022) Gwyn J

Successful judicial review application – Self-represented G applied for judicial review of application of Returning Offenders (Management and Information) Act 2015 (Act) to him – HC said Police Commissioner's determining G as "returning prisoner" under Act – Consequent imposition of standard and special release conditions under Parole Act 2002 and possibility of being made subject to extended supervision order under s 107C Parole Act and/or public protection order under Public Safety (Public Protection Orders) Act 2014 –

HC said Commissioner contravened protection against retrospective punishment under s 25(g) of New Zealand Bill of Rights Act 1990 and s 6 of Sentencing Act 2002 – No clear legislative intent regarding retrospectivity; nor did Act’s words or legislative scheme indicate clear intention regarding retrospectivity –

HC said Act’s application to G also double jeopardy under s 26(2) of Bill of Rights – HC said G had right to hearing under s 27(1) Bill of Rights before determination about him under s 17 Act – Imposing release conditions on him breached rights under ss 18 (freedom of movement), 21 (unreasonable search and seizure), and right to privacy –

HC said further hearing required if G wishes to pursue claim for damages for rights breaches –

Determination under s 17 quashed and orders requiring removal of identifying particulars and bodily samples from relevant Police and Corrections databases.

High Court of Australia

Contract, insurance, statutory defence, waiver

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38 (14 December 2022)

Successful appeal from Full FCA – DV body corporate for apartment complex – DV knew buildings had serious non-structural defects – Did not disclose to insurer A – On 28 March 2017, Tropical Cyclone Debbie struck North Queensland, causing substantial damage to buildings, exposing defects – DV notified claim under insurance policy – On 9 May 2017, A emailed DV, saying, despite non-disclosure, would honour claim – Extent of promised indemnity ambiguous – Dispute arose over repair work sequence and cost distribution – On 28 May 2018, A proposed "settlement" to resolve dispute – Said if DV did not accept, A would rely on its power under s 28(3) Insurance Contracts Act 1984 (Cth) to reduce liability because of DV’s non-disclosure –

DV commenced proceedings in FCA saying A bound by representation it would grant indemnity because it: (i) had irrevocably elected not to rely on s 28(3) defence; (ii) had waived right to rely on s 28(3) defence; (iii) was estopped from resiling from representation; and (iv) breached duty of utmost good faith – Primary judge upheld claims (ii), (iii), and (iv) – Full Court majority dismissed appeal saying all four claims established – A appealed to HCA –

HCA allowed appeal – Said 9 May 2017 email contained waiver of s 28(3) defence which was "revoked" on 28 May 2018, in sense that conditional upon accepting terms resolving ambiguity over indemnity extent – In contract law, limited circumstances where gratuitous waiver of rights irrevocable, none of which present here – Unless circumstances exceptional, would undermine other contractual rules, including those generally requiring that contract variation be by deed or supported by consideration –

Also, waiving s 28(3) defence did not involve electing between alternative and inconsistent sets of rights, such as to give rise to irrevocable "election by affirmation" – Nor did DV establish had suffered any detriment in reliance on A's representation such that A estopped from revoking its waiver – There being no free-standing obligation on insurer, independent of its contractual obligations, to act in manner which was decent and fair, no basis to say A breached utmost good faith duty – Appeal allowed.

Copyright, licensing scope and terms

Realestate.Com.Au Pty Ltd V Hardingham and ors [2022] HCA 39 (14 December 2022) 

Successful appeal and part appeal from Full Court FCA – Appeals concerned scope and terms of licence and subsequent sub-licence to use photographs and floor plans of residential properties (works) H and his company produced and REMA used to market real estate –

H and REMA supplied works H produced to real estate agencies used to market properties using informal contract – One use was to upload them to REA platform – REA then provided works to RPD – RPD operated website and subscription service for agencies where works remained after property sale or lease as part of historical information about completed transactions –

H and REMA brought proceedings in FCA claiming RPD infringed copyright in a large number of works – Common ground that RPD would infringe copyright in works if it used works without licence referable to H or REMA – Consequently, proceeding directed to terms of licence H or REMA gave agencies, which in turn permitted agencies to sub-licence works use to REA – H and REMA accepted REMA granted licence to agencies which permitted them to sub-licence to REA – However, they contended licence was subject to limitation that, once property sale or lease completed, licence ended – Licence in these terms would not have permitted agencies to accept licence terms REA  required, which included ability to sub-licence to others such as RPD –

Primary judge said RPD did not infringe copyright as it was to be inferred from parties’ conduct, or implied into agreements that H and REMA licenced agencies to upload works to REA's platform, and in so doing to grant a licence to REA in accordance with REA's standard terms and conditions – Full Court majority allowed H and REMA's appeal, concluding licence limited to use for relevant property sale or lease –

HCA said RPD did not infringe copyright as a reasonable person in parties’ position would have one purpose for REMA providing works to agencies – Was so agencies could provide them to REA, and that agencies had no real choice other than to accept a term requiring them to provide licence to REA to use works indefinitely and to provide them to RPD – Appeal allowed.  

Judicial Committee of the Privy Council

Torts, wrongful imprisonment, appellate court, assessment of facts

Stuart v Attorney-General of Trinidad and Tobago [2022] UKPC 53 (15 December 2022)

Successful appeal from Trinidad and Tobago CA – S arrested at his home on 27 August 2011, taken to police station and detained without charge until 29 August 2011 – Then charged with being gang member – Magistrates’ Court denied bail – S transferred first to maximum-security prison, then to Remand Yard Prison – On 28 September 2011 Director of Public Prosecutions discontinued proceedings against S, and he was discharged following day –

S issued proceedings in HC, claiming was arrested without reasonable or probable cause and that prosecution was malicious – HC found in his favour and awarded damages totalling T $351,800 (NZ $81,198) plus interest – CA overturned malicious prosecution finding and reduced damages to $50,000 plus interest – S appealed to PC on ground that CA wrong to find that arrest and prosecution were not malicious –

PC said CA should not have overturned HC Judge’s findings facts and witness credibility – Said appellate court should be especially slow to intervene where findings of fact turn on assessment of witness’s live evidence because trial judge had major advantage over appellate court which had not seen and heard that witness – Squarely the case here – PC also said criticism of trial judge for not having taken into account evidence entirety was misplaced – Nothing to suggest she did not take into account whole of evidence – Appeal allowed – Trial judge awards restored apart from $1,800 special damages.

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