New Zealand Law Society - Courts roundup 15 June - 21 June 2023

Courts roundup 15 June - 21 June 2023

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

Supreme Court NZLS 2017 06 13

New Zealand Supreme Court

Sentencing, murder

Collings v R [2023] NZSC 67 (14 June 2023)

Unsuccessful leave application – C convicted of murdering F – Sentenced to life imprisonment with MPI 11 years – CA dismissed sentence appeal – Sought leave to appeal to SC, saying offending circumstances justified departure from life imprisonment statutory default –

SC said Courts below applied settled principles to offence circumstances evaluation and offender as s 102 Sentencing Act 2002 directed – No reasonable prospect of establishing sentence imposed manifestly unjust – No appearance of miscarriage – Nor did proposed appeal raise any matter of principle – Application dismissed.

Self-represented litigant, security for costs

Xing v Yu and ors [2023] NZSC 68 (19 June 2023)

Unsuccessful leave application – Self-represented Y sought leave to appeal HC judge’s decision upholding deputy Registrar’s decision regarding security for costs –

SC said proposed appeal from decision relating to security for costs did not meet leave criteria for leave – Turned wholly on particular facts of litigation below and neither involves matter of general or public importance nor matter of general commercial significance – Application dismissed.

Self-represented litigant, filing fee waiver, security for costs

Re Dai [2023] NZSC 69 (19 June 2023)

Unsuccessful application for review of Deputy Registrar decision – D applied for leave to appeal from CA declining application to review Deputy Registrar’s decisions declining filing fee waiver application; not to dispense with security for costs; and staying HC costs judgment execution –

CA applied orthodox principles – Application dismissed.

Property relationships, triangular relationship, PRA applicability

Mead v Paul and anor [2023] NZSC 70 (20 June 2023)

Unsuccessful appeal from CA – F, L and B met around 1999 or 2000 – At that point, L married to B – In 2002, L, F and B formed triangular polyamorous relationship – Parties lived together in four-hectare property in Kumeū, purchased shortly after formation of their triangular relationship, for $533,000 – F paid $40,000 and property registered in F’s name –

L separated from F and B in November 2017 – At that point property had rateable value of $2,175,000 – B and F separated in early 2018 – F remained resident in property –

In 2019, L sought Family Court (FC) orders determining parties’ respective shares in relationship property and awarding her one-third share of Kumeu property – B supported application – F protested FC jurisdiction, saying parties did not have qualifying relationship under Property (Relationships) Act 1976 (PRA) – L applied to set aside F’s protest to jurisdiction – FC referred question to HC –

HC said PRA did not apply to parties, meaning LC lacked jurisdiction to entertain L and B’s claims – Said L and B’s claims against F broke down at s 2D of PRA – HC said statutory requirement to live together as couple excluded scenario where three parties participating in relationship at issue –

CA agreed that polyamorous relationship (or multi-partner relationship) per se could not be qualifying relationship under PRA – However, CA allowed L and B’s appeal, saying FC had jurisdiction to determine claims among three people in polyamorous relationship, where each partner in relationship in discrete qualifying relationship (marriage, civil union or de facto relationship) with each other partner in that polyamorous relationship – While PRA was premised on “coupledom”, that coupledom did not have to be exclusive for PRA purposes –

Appeal to SC concerned limited question of whether PRA applied – Jurisdiction matter (and therefore, statutory interpretation), not how it applied in fact –

SC 3-2 majority said no real dispute that triangular relationship could not itself be qualifying relationship under PRA – Said, among other things, when Parliament enacted ss 52A and 52B PRA in 2001, providing for priority of claims where person had been in more than one qualifying relationship (either successively and/or contemporaneously), it expressly contemplated that de facto relationship need not be exclusive to qualify under PRA – Said all multilateral relationships, inherently, also collections of bilateral relationships – Said no material distinction between vee arrangements – Constituent parts of which were capable of being qualifying relationships, and Triangular relationships, for PRA purposes – If constituent relationships each met requirements of mutual (but not exclusive) commitment, contemporaneity (and triangularity) did not then take them beyond Act – Appeal dismissed.

New Zealand Court of Appeal

Health assessor report delay

Maaka-Wanahi v Attorney-General [2023] NZCA 217

Unsuccessful appeal from decision that the time limits referred to in s38(2) and s40 Criminal Procedure (Mentally Impaired Persons) Act 2003 did not set a time limit for preparing the s38 report and sending it to the court – Clear that the time limits related to the period for which a person may be detained for the purpose of assessment – Not accepted that reading s38 as prescribing a time limit for preparation of s38 reports would better protect the rights of defendants awaiting trial and reduce overall timeframe – Equally plausible imposing time limits on the preparation of s38 reports would reduce the number of health assessors willing to provide such reports – HELD: interpretive presumption in s6 New Zealand Bill of Rights Act 1990 not engaged as no reason to think that the rights affirmed would be better protected by the reading contended for – Appeal dismissed.

Family protection

Barnard v Robertson [2023] NZCA 230

Unsuccessful appeal from dismissal of claim under the Family Protection Act 1955 – MB died in 2019 leaving three adult sons – Estate ($4.4M) divided unequally between MB’s three adult sons – Whether MB failed in her moral duty to provide G with proper maintenance and support – Broad principles applying to claims in Brown v Brown – HELD: evidence about the nature and extent of G’s contributions to either the farming enterprise or the care he took of his mother was contested, and there was good reason for regarding the “corroborating” evidence as unreliable – No error in Judge’s assessment that G had not established a “special claim” on MB’s estate – Acknowledged G received a lesser share than his brothers, but G’s financial position before his mother’s death could not be described as precarious, and the will provided him with substantial property, capital, and income – No failure by MB to fulfil her moral duty, judged by the standards of a wise and just testatrix – Appeal dismissed.

Fair Trading Act, limitation

Juken New Zealand Ltd v Red Stag Timber Ltd [2023] NZCA 242

Successful appeal against parts of an interlocutory judgment declining applications to strike out and for summary judgment in respect of claims under s43 Fair Trading Act 1986 (FTA) – 2017, RST commenced a proceeding in the High Court claiming JNL had acted contrary to the FTA and claiming relief under s43 – Case turned on proper application of s43A which required proceedings seeking relief for unlawful conduct to be commenced within 3 years after the date on which loss or damage, or the likelihood of loss or damage, was discovered, or ought reasonably to have been discovered – HELD: as a general proposition, had to be the case that a claim for relief which related to a period more than 3 years after the date on which the loss or damage was discovered (etc) would be contrary to the FTA – R7.77(2)(a) High Court Rules did not deal with “fresh” causes of action and was not to be read as an authority to introduce an amended pleading seeking relief for actions that took place outside a limitation period – Appeal allowed.

Leases, arbitration

The Gama Foundation v Fletcher Steel Ltd [2023] NZCA 243

Unsuccessful appeal against HC decision declining Gama leave to appeal an arbitral award relating to a lease dispute to that Court – Relevant lease ran for 10 years, expiring 31 Aug 2016 – Premises were damaged in the Canterbury earthquakes and at expiry of lease FSL accepted it was in breach of many of the repair and maintenance covenants – Gama awarded $900,000 and then a further $320,000 of the $1.75M it claimed in arbitration – At issue was the application of Joyner v Weeks and whether it precluded recovery of costs reasonably incurred in mitigation – Sunlife Europe Properties Ltd v Tiger Aspect Holdings Ltd applied – HELD: Gama claimed a presumptive entitlement to reasonable costs exceeding provable damages – Amounts awarded were amounts arbitrator found to be the costs of the repair work FSL had been obliged to carry out but had not – No need for further clarification of the Joyner v Weeks prima facie approach – Factors in Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd pointed against leave – Appeal dismissed.

Previous good character

Arroyo-Munoz v R [2023] NZCA 245

Successful appeal against sentence of 7 years imprisonment – Rape (x2) – Sentencing judge considered offending fell at top of band 1 or lower end of band 2 in R v AM and adopted starting point of 8 years imprisonment – 12 percent discount applied for youth and personal circumstances – Whether greater discount warranted – HELD: Judge erred in determining one of the aggravating features of the offending was moderate premeditation – Appropriate starting point 7 years imprisonment – Appellant aged 22 years at the time of offending, and had a number of minor driving related convictions – Material demonstrated appellant’s good character and his positive influence within his local community – More weight should have been given to previous good character – Global discount of 15 percent warranted – Appeal allowed – Sentence of 6 years imprisonment substituted.

New Zealand High Court

Sentencing, manslaughter

R v Harris and ors [2023] NZHC 1475 (12 June 2023) Paul Davison J

Sentencing – H, N and M found guilty and convicted of manslaughter following RH fatal shooting on 5 November 2021 – End sentence 7 years 11 months' imprisonment for lead offender – Co-defendants sentenced to 7 years 7 months' and 4 years 6 months' imprisonment.

Judicial review, health sector, community pharmacies regulation, commercial decision amenability to review

New Zealand Independent Community Pharmacy Group v TE WHATU ORA – Health New Zealand (formerly Hutt Valley District Health Board) and ors [2023] NZHC 1486 (15 June 2023) Gwyn J

Partly successful judicial review application – ICPG, group of community pharmacists, applied for judicial review of Ministry of Health (Ministry) decision to issue licences to RX8, company associated with Countdown Supermarkets, to operate pharmacies in supermarkets, under s 55D Medicines Act 1981 – Also sought judicial review of two District Health Boards (DHBs) decisions to enter into integrated community pharmacy services agreements (ICPSAs) with RX8 – ICPG pleaded five review grounds against DHBs, including three grounds relating to DHBs’ assessment of equity effects of RX8’s proposal to waive prescription co-payment at Countdown pharmacies, and breaching obligations under te Tiriti o Waitangi/the Treaty of Waitangi –

HC said DHBs’ decisions to enter into ICPSAs commercial decisions and not reviewable except on narrow grounds of fraud, corruption and bad faith, none of which was alleged – Although granting ICPSA had semi-regulatory flavour, weighing in favour of reviewability, other contextual factors outweighed this, including DHBs being statutory entities, legally distinct from Crown; no prescriptive requirements regarding agreements such IPCSAs under New Zealand Public Health and Disability Act 2000 (NZPHDA); each DHB adhered to own policies and procedures when considering and granting ICPSAs to RX8; adequate accountability mechanisms under NZPHDA; and ICPG had clear commercial interest in bringing proceeding – Last of these was critical contextual factor –

Even if decisions reviewable, all grounds against DHBs would fail on merits – DHBs did not fail to ask themselves “correct question” regarding nature of prescription co-payment discount and had sufficient information to assess discount effects and other operational conditions of operation RX8 proposed, in terms of equity impact –

DHBs’ ICPSA decisions consistent with te Tiriti o Waitangi/Treaty of Waitangi – Hauora Tairāwhiti adequately monitored RX8 pharmacy services delivery and performance at Countdown Pharmacy Gisborne –

HC said Ministry decisions to grant RX8 licences to operate pharmacies invalid and unlawful – Section 55D(2)(a) Medicines Act required company granted licence to operate pharmacy must be both majority-owned by pharmacists and pharmacist shareholders had “effective control” of company – Effective control required positive control and therefore mere veto power or negative control did not amount to “effective control” of company (Medicines Act, s 55D(2)(a)) – Licences Ministry granted to RX8 should be set aside – Orders’ effect deferred to enable filing of submissions by RX8 and Ministry.

Sentencing, Megaupload

R v Ortmann and anor [2023] NZHC 1504 (15 June 2023) Fitzgerald J 

Sentencing – O and VdK pleaded guilty to four charges arising out of involvement in online platform Megaupload – Starting point of 10 years six months' imprisonment for O and 10 years' imprisonment for VdK – Combined 60 per cent discount for early guilty pleas and assistance to authorities; Additional 15 per cent for personal factors – O sentenced to two years seven months' imprisonment; VdK sentenced to two years six months' imprisonment.

High Court of Australia

Immigration, judicial review, Minister’s decision, irrelevant considerations, jurisdictional error

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (14 June 2023)

Unsuccessful appeal from Full Court, FCA – Concerned whether Minister refusing to revoke decision T's visa jurisdictional error because Minister took into account irrelevant consideration; T’s offending as child for which no conviction recorded –

Principally involved construction of s 85ZR(2)(b) Crimes Act 1914 (Cth) (Crimes Act) and s 184(2) Youth Justice Act 1992 (Qld) (YJ Act) – Section 85ZR(2)(b) Crimes Act said "where, under a State law ... a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State ... the person shall be taken, in any State ... in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State ..., never to have been convicted of that offence" – Section 184(2) of Youth Justice Act relevantly provided that "a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose" –

T, United Kingdom citizen, had lived in Australia since he was three years old – Held Class BB Subclass 155 Five Year Resident Return visa – When 21 years old, convicted and sentenced to 24 months' imprisonment – Consequently, visa subject to mandatory cancellation under s 501(3A) of Migration Act 1958 (Cth) – T asked Minister to revoke visa cancellation – Representations included reference to offences committed when child – Deciding not to revoke visa cancellation Minister said satisfied T represented unacceptable risk of harm to Australian community – Before reaching conclusion, Minister had noted that T began "offending as a minor and had a number of offences recorded before reaching adulthood" –

Primary judge dismissed T’s application for judicial review of Minister's decision, including on ground that Minister took into account offences T committed as child contrary to s 184(2) YJ Act and s 85ZR(2)(b) Crimes Act, which made those offences irrelevant considerations – Full Court quashed Minister's decision on that ground –

HC majority said Minister took irrelevant consideration into account, jurisdictional error vitiating decision – Said s 184(2) YJ Act State law which, in all circumstances and for all purposes, provided T taken never to have been convicted of offence committed under Queensland law when he was child – Consequentially, T, under s 85ZR(2) Crimes Act, was to be taken by any Commonwealth authority, in all circumstances and for all purposes, never to have been convicted of offence to which s 184(2) YJ Act applied – Appeal dismissed.

Mandamus, Certiorari, Invalid Ministerial decision

ENT19 v Minister for Home Affairs and anor [2023] HCA 18 (14 June 2023)

Decision under constitutional original jurisdiction – Majority said Minister for Home Affairs’ purported personal decision under s 65 of Migration Act 1958 (Cth) (Act) to refuse E’s application for temporary protection visa – Safe Haven Enterprise (Class XE) Subclass 790 visa (SHEV) invalid – HC issued writs of certiorari quashing Minister's decision and mandamus commanding Minister to determine E's visa application according to law within 14 days –

E, Iranian citizen, arrived in Australia by boat in December 2013 – Immediately detained under s 189 Act – In February 2017, E validly applied for SHEV – In October 2017, E convicted after pleading guilty to aggravated offence of people smuggling, contrary to s 233C Act – In June 2022, Minister refused E’s application because not satisfied visa criterion in cl 790.227 of Sch 2 Migration Regulations 1994 (Cth) that granting SHEV in national interest (Decision) –

Minister's reasons revealed cl 790.227 criterion not met because in her view not in national interest to grant protection visa to person convicted people smuggling offence – Non-satisfaction of cl 790.227 sole basis for refusing E’s application – Minister accepted Australia owed protection obligations to E because he was refugee and all other criteria for SHEV grant satisfied –

E sought judicial review of Decision, seeking various remedies on different grounds, including writs of habeas corpus, mandamus and certiorari, and declarations relating to validity and construction of cl 790.227 – HC majority said on proper construction and application of cl 790.227, Decision invalid –Construed in light of function and context, cl 790.227 did not operate to permit Minister or delegate to reconsider or revisit, under "national interest", matters that had already been considered as part of decision-making process under s 65 and to treat those matters as sufficient to form opinion Minister or delegate not satisfied that granting visa in national interest – E’s people smuggling conviction bore directly on consideration of Public Interest Criterion 4001, which Minister accepted had been satisfied, Minister's discretionary visa refusal powers in s 501, which Minister had decided not to exercise – Minister could not treat matter alone as sufficient to conclude granting visa not in national interest under cl 790.227 – Orders made.

Supreme Court of Canada

Constitutional law, Canadian Charter, refugee status

Canadian Council for Refugees v. Canada (Citizenship and Immigration) [2023] SCC 17 (16 June 2023)

Partly successful appeal from Federal CA – In 2002, Canada and USA bilateral treaty Safe Third Country Agreement (STCA) – Generally, under STCA, refugee claimants had to seek protection in whichever of two countries they first enter after leaving country of origin – Rule is incorporated in s 101(1)(e) of Canada’s Immigration and Refugee Protection Act (Act) and s 159.3 of Immigration and Refugee Protection Regulations (Regulation) –

While there were some exceptions, someone ineligible under Act to claim refugee status in Canada if arriving at land port of entry from “safe third country” – Designation based on criteria including country’s compliance with principle of “non-refoulement” – Principle cornerstone of international refugee protection regime – Prohibited returning person to place where they would face torture, cruel or degrading treatment, or threats to their life or freedom – “Safe third country” seen as appropriate partner with which responsibility for considering refugee claims could be shared – Section 159.3 designated USA accordingly –

Claimants in case were individual refugee claimants and public interest litigants advocating on their behalf – Claimants all arrived in Canada in 2017 from USA – Feared gender-based persecution and sexual violence committed by gangs or oppression in their countries of origin – Because arrived at land ports of entry from USA could not claim refugee protection in Canada –

Claimants said Regulation designating USA safe third country violated rights guaranteed under s 7 Charter of Rights and Freedoms because it resulted in Canadian immigration officers returning refugees to USA without considering whether USA would respect claimant rights under international law, including those relating to non-refoulement and detention – Also alleged Regulation violated Charter equality guarantee s 15 because women facing gender-based persecution often denied refugee status in USA and faced refoulement risk –

In 2020, Federal Court judge said Regulation violated s 7 – Based on her evidence review said people’s liberty and security threatened given risks of refoulement, detention and conditions refugee claimants faced when returned to USA – Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness appealed –

Federal CA set aside judgment – Said Charter challenge should not have focused on Regulation itself – Rather, should have targeted Canada’s action or inaction in continuing review of USA designation as safe third country – Neither court ruled on s 15 claim – Claimants appealed to SC –

SC unanimously allowed appeal in part – Said Regulation did not breach s 7 Charter – Agreed with some Federal Court judge’s findings relating to refugee claimant treatment in USA namely risk of detention upon being returned there and some aspects of detention conditions – However, legislative scheme could stand because it contained ways for Canada to consider refugee status claims when ineligibility under scheme would lead to deprivations of liberty or security of person – Legislative “safety valves” included discretionary exemptions based on humanitarian and compassionate or public policy grounds –

SC dismissed appeal on s 7 claim and returned s 15 claim to Federal Court for determination, given lack of factual findings on which SC could rely, complexity of record and conflicting evidence, and profound seriousness of matter – Appeal allowed in part.