New Zealand Law Society - Courts roundup 26 October - 1 November 2023

Courts roundup 26 October - 1 November 2023

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

Supreme Court NZLS 2013 06 10 3

New Zealand Supreme Court

Fair Trading Act, limitation period

Red Stag Timber Ltd v Juken New Zealand Ltd [2023] NZSC 138 (25 October 2023)

Unsuccessful leave application – In 2017 RST commenced proceedings alleging that, since 2007, JNL had made misrepresentations about timber product in breach of Fair Trading Act 1986 (FTA) – Statement of claim divided JNL’s alleged conduct into different time periods –

JNL applied to strike out claim as related to conduct before December 2012, being outside three-year limitation period contained in s 43A FTA – HC dismissed application – CA allowed appeal –

RST applied for leave to appeal to SC – SC accepted application raised question of law because procedural background, but SC not convinced of commercial importance – Also, SC said RST proposed arguments did not have sufficient prospects of success for it to be in interests of justice to grant application – Application dismissed.

Self-represented litigant, name suppression

Wedgwood v R [2023] NZSC 139 (26 October 2023)

Unsuccessful leave application – Self-represented W applied for leave to appeal against CA declining to grant name suppression – SC said matters W wanted to raise directed primarily to concerns about process in CA – No challenge to principles applicable to name suppression – No question of general or public importance – Other factual matters W raised had insufficient prospects of success to warrant appeal to SC – No risk of miscarriage of justice – Application declined.

Self-represented litigant, costs

MD v LP [2023] NZSC 140 (26 October 2023)

Unsuccessful leave application – Self-represented MD and LP in litigation over care arrangements for their two children for some time –

MD applied for leave to appeal from CA awarding costs to LP – Said costs decision gave rise to miscarriage of justice and overall matter of general or public importance present – SC said no appearance of miscarriage of justice – CA applied principle that costs followed event – Nothing MD raised suggested any good reason to depart from orthodox approach where respondent put to cost of defending application and had done so successfully – Nothing to suggest question of public or general importance arose – Application dismissed.

New Zealand Court of Appeal

Aggravated robbery, burglary, sentence to be served without parole

Sulusi v R [2023] NZCA 513

Successful application for an extension of time to appeal against sentence – Appellant pled guilty to charges of aggravated robbery (x2), burglary, theft of petrol (x2) and unlawfully taking a motor vehicle (x2) - Sentenced to 5 years 3 months’ imprisonment – Because the aggravated robbery charges were a stage-2 offence, it was ordered that the sentence be served without parole – Appellant sought an extension of time in which to appeal his sentence – HELD:  Application for an extension of time granted because the appeal had merit, the delay was explicable, and it did not result from a default by the appellant – Appellant’s personal circumstances and significantly disadvantaged background, the facts of the offending and the multiplier (appellant would have been required to serve a sentence three times higher than the minimum period he would serve under ordinary sentencing principles) rendered his sentence in breach of s 9 New Zealand Bill of Rights Act 1990 – Appeal allowed – Sentence to be served without the no-parole order.

Assault with a weapon, retrial, dismissal of sentence, resentencing

Herewini v R [2023] NZCA 519

Partially successful appeal against conviction and sentence – Appellant found guilty on charges of aggravated robbery and assault with a weapon – Sentenced to 3 years 6 months’ imprisonment – Whether trial miscarried – Whether sentence starting point of 4 years was too high – Whether sentence lacked parity with co-offender – HELD: Judge ought not to have withdrawn the defences of self-defence and defence of another from the jury – Appeal against conviction for assault with a weapon allowed – Retrial ordered – Appeal against conviction for aggravated robbery dismissed – Appeal against sentence allowed.

Propensity evidence, family violence - Login Required 

R v [B] [2023] NZCA 520 

Statement of claim, abuse of process, extension of time

Sixtus v Ardern [2023] NZCA 521

Unsuccessful application for extension of time for filing case on appeal and applying for allocation of hearing date – Appellant filed an appeal against a decision striking out her statement of claim in the HC as an abuse of process – 11 months later she applied under Court of Appeal (Civil) Rules 2005 for an extension of time to comply with R43(1) – Whether application should be granted – HELD: a significant period of time had elapsed during which appellant unilaterally failed to take steps to progress appeal – Failed to provide an adequate explanation for delay – HC was correct to conclude that the allegations in the statement of claim were unintelligible, no cause of action had been disclosed and the deficiencies were too fundamental to be remedied by amendment – Proposed appeal meritless – Application declined. 

Propensity evidence, sexual offending - Login Required 

[R] v R [2023] NZCA 523 

Miscarriage of justice, sentence manifestly excessive

[A] v R [2023] NZCA 533

Unsuccessful appeal against conviction and sentence of 8 years 10 months’ imprisonment for sexual violation by rape against two women – Judge refused to give a reliability direction – Questions from the bench during the appellant’s evidence – Whether a miscarriage of justice occurred and convictions should be quashed – Whether Judge erred in finding breach of trust to be an aggravating feature of the offending, leading to a manifestly excessive sentence starting point – Whether insufficient discount applied – HELD: Judge did not err in refusal to give a reliability direction – Questions from the bench more than required but not repetitive or showing partiality – No unfairness or risk of miscarriage of justice – Correct to find breach of trust was an aggravating factor – Starting point not excessive – Discount appropriate recognition personal circumstances – Appeal dismissed.

New Zealand High Court

Sentencing, grievous bodily harm, manslaughter

R v Hughes [2023] NZHC 2956 (20 October 2023) Palmer J

Sentencing – H pleaded guilty to burglary and kidnapping on first trial day – At trial end jury found her guilty of wounding with intent to cause grievous bodily harm and of manslaughter – Sentenced to five years six months’ imprisonment.

Attorney, special counsel, independent trust advisor

Houchens v Ruscoe [2023] NZHC 2969 (24 October 2023) Palmer J

Unsuccessful application to appoint attorney, independent counsel or special trust adviser – Cryptopia account holders applied following company’s liquidation – HC said no jurisdiction under High Court Rules or Trusts Act 2019 to appoint – No ground to appoint anyway – Application dismissed.

Supreme Court of Canada

Shareholders, breach of duties

Ponce v. Société d’investissements Rhéaume ltée [2023] SCC 25 (27 October 2023)

Unsuccessful appeal from Quebec CA – In 2002, P and R became presidents of three Quebec companies “Groupe Excellence” (GE) – Presidents and companies’ majority shareholders, Rh and B, entered into “Presidents’ Agreement” – Agreement gave presidents significant benefits, including incentive pay – Also formalised business relationship between parties based on commitment to work toward common goal of ensuring GE success, even with view to potential sale –

In 2005, while Agreement still in force, presidents learned third party, IAFS, interested in acquiring companies – Rather than revealing this to shareholders, presidents decided to buy all shareholders’ stakes themselves then resell them to IAFS – Earned them substantial profit –

Shareholders blamed presidents for not disclosing interest IAFS expressed in acquiring companies and, as result, depriving shareholders of business opportunity – Claimed presidents breached obligation to perform Agreement according to good faith requirement – Presidents said contractual loyalty did not require them to subordinate their interests to shareholders’ interests –

In Quebec civil law, contractual good faith implied obligation resulting from combination of articles 1375 and 1434 of Civil Code of Québec (Code) – Article 1375 said “[t]he parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished” – Article 1434 said validly formed contract bound parties “as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law” –

Quebec Superior Court ruled in shareholders’ favour – Said presidents used roles to obtain information for own benefit – Breached duties of honesty and loyalty owed to GE as company directors, duties that could be extended to shareholders because of Agreement – Court ordered presidents to pay shareholders approximately $12 million, amount equal to profits earned on GE sale to IAFS –

Presidents appealed to CA – Confirmed lower court conclusions, but said obligations presidents breached, obligation to act in good faith and obligation to inform, were only contractual obligations arising from Agreement – Presidents appealed to SC –

SC unanimously dismissed appeal – Said presidents’ failure to inform shareholders breached good faith requirements – Presidents breached contractual loyalty linked to good faith, implied obligation under contract through combined effect of Code articles 1434 and 1375 – While presidents did not have to subordinate their interests to shareholders’ interests, good faith requirements included duty for presidents to inform shareholders of IAFS interest – Agreement also involved implied obligation to inform that required presidents to provide shareholders with all information relevant to making informed decision about sale of their shares –

Since presidents did not show any palpable error in Superior Court conclusion shareholders’ lost gain equivalent to profits made, SC did not interfere with Superior Court damages assessment – Appeal dismissed.

United Kingdom Supreme Court

Investigation under convention, Human Rights Act, temporal scope

Re application by Dalton for Judicial Review [2023] UKSC 36 (18 October 2023)

Unsuccessful appeal from Northern Ireland CA – Mainly concerned extent to which positive obligation on public authorities to investigate individual’s death under article 2 European Convention on Human Rights (Convention), as given effect in UK by Human Rights Act 1998 (HRA), extended to deaths occurring before HRA came into force –

D died in bomb explosion on 31 August 1988 in Derry/Londonderry – Provisional Irish Republican Army (IRA) said responsible for bomb – Police investigated but did not charge anyone – Inquest held into D’s death on 7 December 1989, which concluded he died from injuries suffered in explosion –

In February 2005, D’s son lodged complaint with Northern Ireland Police Ombudsman (Ombudsman) about police’s behaviour in lead up to and investigation of father’s death – Ombudsman investigated and reported his findings on 10 July 2013 – Criticised police, finding police failed to thoroughly investigate D’s death – Also said Ombudsman investigation hampered by missing documents and some police officers refusing to cooperate –

On 25 July 2013, D’s family asked Attorney General of Northern Ireland (AGNI) to open fresh inquest into D’s death – Said fresh inquest needed to take account of Ombudsman’s report in particular because coroner, unlike Ombudsman, would be able to compel people to answer questions – AGNI refused request on 2 October 2014 – On 26 June 2015, D’s daughter challenged AGNI’s refusal in Northern Ireland HC – HC dismissed challenge on 28 March 2017 – Daughter appealed to Northern Ireland CA –

On 4 May 2020, CA allowed appeal and remitted matter to AGNI for reconsideration – AGNI appealed UK SC – SC unanimously allowed AGNI’s appeal – Said daughter could not challenge AGNI’s refusal to open new inquest into father’s death because it occurred outside temporal scope (i.e., too long before) HRA came into force – Appeal allowed.