New Zealand Law Society - Courts roundup 3 August - 9 August 2023

Courts roundup 3 August - 9 August 2023

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

Book on stand in Wellington High Court

New Zealand Supreme Court

Leapfrog appeal, Treaty settlement process

Roebeck and anor v Attorney-General and ors [2023] NZSC 95 (31 July 2023)

Unsuccessful leave application – R and Ngāti Paoa Trust Board (Trust Board) sought leave to appeal directly to this Court against HC dismissing three separate but closely related judicial review proceedings – Proceedings brought by certain kuia of Ngāti Kauahi—a hapū of Ngāti Pāoa—and Trust Board – R Trust Board co-chair and one of kuia of Ngāti Kauahi –

SC said applications for leave to bring direct appeal had to meet exceptional circumstances test in s 75(b) Senior Courts Act 2016 and usual leave criteria in s 74 – Here two exceptional circumstances argued for: first, parameter of comity principle important constitutional issue that SC ought to resolve; and second, because legislation currently before House would, if enacted, render “rights of the appellants and hundreds of other members of Ngāti Pāoa to have their say on the proposed settlement with the Crown, nugatory” –

SC said R’s own submission demonstrated first, proceeding did not seek to vindicate extant substantive rights whose existence not bound up in settlement process – Rather, direct challenge to proposed legislation itself – Second, implementing legislation not mere future possibility; rather in concrete form and under active Select Committee consideration – At this stage, forum where applicants must express their views was Māori Affairs Select Committee – No exceptional circumstances sufficient to meet s 75(b) threshold – Application dismissed.

Self-represented litigant, declaration, mandamus

Re Dunstan [2023] NZSC 96 (31 July 2023)

Unsuccessful leave application – Self-represented D applied for leave to appeal directly to SC from HC decision – Decision in HC Judge’s minute of 14 June 2023 – D also filed what is described as application for this Court to make declaration and order for mandamus –

SC said matters D advanced to support ex parte orders sought diffuse and unclear – Did not provide any basis for SC intervention, even assuming any jurisdiction to do so – Application declined.

Insurance, non-weathertightness claims

Local Government Mutual Funds Trustee Ltd v Napier City Council [2023] NZSC 97 (1 August 2023)

Unsuccessful appeal from CA – In 2013, apartment owners group sued Napier City Council for negligence for issuing building consents, ensuring adequate inspections and issuing code compliance certificates – Some building defects related to weathertightness – Other defects, such as those relating to, fire risk, not related to weathertightness –

Council settled apartment owners claim for about $12 million – No apportionment in settlement sum between weathertightness and other defects – Expert evidence was possible to divide losses between those flowing from weathertightness defects and those exclusively attributable to non-weathertightness –

Council claimed from insurer, Local Government Mutual Funds Trustee Ltd (RiskPool), for portion of remediation costs not weathertightness-related –

RiskPool declined cover, saying exclusion clause, Exclusion 13(a), relating to weathertightness, applied – Exclusion said insurance contract section “does not cover liability for Claims alleging or arising directly or indirectly out of, or in respect of” weathertightness defects –

Council subsequently sued for part of settlement amount relying on indemnity – Said Exclusion 13(a) only excluded parts of claim concerning weathertightness, so demands not relating to weathertightness, such as fire risk defects, not excluded – RiskPool said because apartment owners’ demand for compensation included weathertightness claims, whole claim excluded –

HC ruled for RiskPool, saying exclusion clause excluded cover for weathertightness and non-weathertightness complaints where weathertightness complaint made – In case conclusion on exclusion clause wrong, HC ruled on quantum of RiskPool’s liability – On appeal, CA disagreed with HC on exclusion clause operation – CA said Exclusion 13(a) only removed cover to extent alleged liability arose out of weathertightness claims –

SC unanimously declined RiskPool’s appeal – Applied general approach to contractual interpretation set out in earlier SC decisions – Approach objective with aim to ascertaining meaning document would convey to reasonable person with all relevant background knowledge –

SC also agreed with CA construction of exclusion clause – When clause was read as whole, in context, clear that common intention was to exclude only risks specifically referred to, namely, weathertightness – Here, where Council faced liability for separate and divisible loss arising from breaches of weathertightness and non-weathertightness aspects of Building Code, only former excluded from cover even though apartment owners put claim on mixed basis – Appeal dismissed.

Loan agreements, protracted history

Jones v New Zealand Bloodstock Finance and Leasing Ltd [2023] NZSC 98 (2 August 2023)

Unsuccessful leave application – Self-represented J Had dispute with NZBFL over two loan agreements – SC said, as CA noted, proceedings had “somewhat protracted history” –

Leave application included criticism of judges in courts below and application that SC judges recused themselves where, among other things, they had personal knowledge of issues referred to – In Minute of 28 April 2023, SC said for Court to determine whether any member should recuse him or herself, and that it was contrary to principle that judiciary be interrogated on such matters – Even so, Minute confirmed that no SC judge, whether assigned to panel or not, met any of J’s criteria –

Addressing leave application, SC first examined recusal issue – Reiterated its April Minute then said it found further claims were “mystifying” – “The short point is that nothing advanced by the applicant could possibly concern fair-minded and fully-informed observer as to the impartiality of the panel in hearing this leave application” –

On leave criteria SC said proposed appeal raised no matter of general public importance or commercial significance – Issues raised confined to facts of this particular case and lacked broader implications beyond parties themselves – No risk of substantial miscarriage of justice – Application declined.

New Zealand Court of Appeal

Stay, tikanga Māori

Huata v Mangaroa 26N2 Trust [2023] NZCA 338

Unsuccessful application for stay until tikanga claim heard – HC decision related to general land leased by appellants from respondent Trust constituted under the Māori Affairs Act 1953 – Land had been purchased by T in 1909 and respondent established in 1974 to administer the land on behalf of her descendants – Appellants relied on Ellis v R submitting that premature for appeal to be heard until HC had determined tikanga claim – HELD: tikanga claim never pleaded by appellants in the HC, nor mentioned in notice of appeal – If there were errors made by three sets of lawyers, that was a matter between appellants and those lawyers – Untenable to suggest respondent would not be significantly prejudiced by significant delay – Application for stay declined.

Sentence appeal, rape bands

Cook v R [2023] NZCA 342

Successful appeal against sentence of 8 years imprisonment (unsuccessful conviction appeal) – Sexual violation by unlawful sexual connection; Sexual violation by rape – C’s defence at trial was that he suffered from sexsomnia – Judge sentenced on the basis the jury had rejected C’s defence that he was asleep and unconscious at the time of the offending – Judge adopted starting point of 8 years imprisonment, having regard to aggravating factors – No increase or decrease applied and Judge rejected suggestion of relevant remorse – Whether end sentence manifestly excessive – HELD: victim was highly vulnerable, and high degree of harm – Premeditation was not an aggravating factor in this case – Digital penetration immediately prior to penile penetration was part of the single incident and was an aggravating factor, but not to a moderate degree – Looking at offending overall in light of R v AM, taking a common-sense approach to culpability and given aggravating factors, offending fell at lower end of rape band two – Starting point of 7 years imprisonment appropriate – Appeal against sentence allowed and sentence of 7 years imprisonment substituted.

Sentence appeal, tikanga Māori

Kohu v R [2023] NZCA 343

Unsuccessful appeal against sentence of 5 years 2 months imprisonment – Wounding with intent to cause grievous bodily harm (GBH); Assault with a weapon (hammer); Intentional damage – Appeal on the grounds the Judge failed to give proper or sufficient weight to the tikanga Māori aspects of the restorative justice process, genuine remorse expressed, and the combined weight of the various cultural factors set out in the s27 Sentencing Act 2002 report – Whether sentence manifestly excessive – Waikato-Tuhenga v R comparable – HELD: 15 percent discount for cultural factors reflected an orthodox application of the relevant principles courts had consistently applied – Higher discount would be wholly out of proportion in the circumstances of this case – K sought and accepted a sentence indication, following which he repeatedly failed to take responsibility for his actions as charged – Existence of the undisputable facts limited any entitlement K might otherwise have had, either under orthodox sentencing principles or tikanga, to a discount for remorse – Appeal dismissed.

Propensity evidence, previous convictions - Login Required

[P] v R [2023] NZCA 348

Conviction appeal, miscarriage of justice, fitness to stand trial - Login Required

[T] v R [2023] NZCA 350

Admissibility of circumstantial evidence - Login Required

[B] v R [2023] NZCA 344

Admissibility of improperly obtained evidence - Login Required 

[J] v R [2023] NZCA 345

Accident compensation, treatment injury

AR v Accident Compensation Corporation [2023] NZCA 354

Successful application for special leave to appeal – Incorrect medical advice given through helpline for an out-of-hours medical centre led to delay of 7.5 to 8 hours in a diagnosis of, and hospital treatment for, Guillain-Barré Syndrome (GBS) – AR suffered severe effects from GBS – ACC declined claim for treatment injury due to delay in treatment on basis the delay did not cause GBS nor increase the severity of its effects – HELD: there was a question of law capable of serious and bona fide argument as to whether the DC approach, upheld in the HC, misinterpreted the test for causation in ACC v Ambros – Arguable the DC approach looked for certainty in the medical literature, or relied on the opinions of doctors who were looking for certainty in the medical literature, that the period of delay in treatment that occurred here was likely to have caused an increase in the severity of AR’s symptoms, when that was not the test for legal causation – Application granted.

New Zealand High Court

Sentencing, double murder

R v Puata-Chaney [2023] NZHC 1980 (27 July 2023) Edwards J

Sentencing – P-C pleaded guilty to ex-partner and her father’s murder – P-C and ex-partner argued on phone on day of murder – P-C travelled to ex-partner's family home with firearm and ammunition inside guitar case – Forced way into home and dragged ex-partner on to front lawn – Father followed them out, trying to stop attack – P-C shot father multiple times at close range, killing him – Then turned firearm on ex-partner who pleaded for her life – Shot her multiple times, killing her – Witnesses heard gunfire and screaming, and others saw shooting – P-C then shot dog he and ex-partner had shared – Returned to home and called 111, saying had done something, and should send police –

Sentenced to life imprisonment with MPI 20 years, six months – Judge said murders of most serious category: two murders; P-C acted callously; forced way into family home – Planning involved and risk posed to public through using lethal weapon in suburban area additional factors taken into account –

Offending compared to other cases involving double murders – Starting point 23 years adopted – Six-month uplift applied for offending while on bail – No discount for mental health and methamphetamine-induced psychosis suffered at time of shooting – Six month discount for background which characterised by extreme violence and gang life from early age – Discount took into account offending seriousness, comparable discounts, and discount applied in prior sentence for same factors – Further six-month discount applied for remorse – Finally, two-year discount for early guilty plea – While sentence of life imprisonment with no possibility of parole for 20 years, six months lengthy sentence for 28 year old, fair and proportionate response to loss of two lives.

Sentencing, murder

R v Singh [2023] NZHC 2040 (2 August 2023) Johnstone J

Sentencing – S pleaded guilty to murder – Offending engaged three s 104 Sentencing Act 2002 factors: calculated or lengthy planning; high level of brutality, cruelty, depravity, or callousness; and deceased particularly vulnerable – Factors were all sufficiently engaged to warrant applying s 104 – Notional MPI 17.5 years, to reflect three s 104 factors – Only mitigating factor guilty plea, warranting one-year MPI reduction to MPI – Imposing 17-year MPI not manifestly unjust – Final MPI 17 years.

Sentencing, manslaughter, 14-year-old

R v Henara [2023] NZHC 2057 (2 August 2023) Grice J

Sentencing – H pleaded guilty to manslaughter committed in March 2018, when 14 years old – Factors included weapon use, limited premeditation, vulnerability of victim, context of multiple attackers – Starting point 7.5 years' imprisonment – Discounts: 25 per cent guilty plea, 15 per cent youth, 20 per cent personal circumstances, including deprivation, neglect, violence in upbringing and neurodisability, 5 per cent remorse – No totality adjustment required – End sentence two years 7.5 months' imprisonment – Immediate release for time served – Standard release conditions for six months plus any special release conditions probation officer imposed.

High Court of Australia

Employment law, tort, employer vicarious liability

CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (2 August 2023)

Successful appeal from Queensland CA – Appeal concerned whether employer liable for employee’s tortious act where act occurred in shared staff accommodation where employees required to live –

In 2016, S commenced employment with CCIGI at resort in Whitsunday Islands off Queensland coast – Employment requirement he lived on island in furnished, shared accommodation – S shared accommodation with H – In early morning of 7 November 2016, H returned to shared accommodation from staff bar intoxicated – Around 3.30 am, S woken in distressed condition and unable to breathe as H urinating on him – S suffered cataplectic attack from incident, described as sudden and ordinarily brief loss of voluntary muscle tone triggered by emotional distress – S brought proceedings against CCIGI, claiming it was vicariously liable as employer for H’s negligent act because act done in course or scope of employment –

Trial judge said H’s actions not committed in course of his employment with CGIGI – Accepted tort arose from shared accommodation requirement, but said not fair allocation of consequences to impose vicarious liability on employer for H’s drunken misadventure –

CA allowed S’s appeal – Relied on terms of H’s employment to find requisite connection between tortious act and employment – Said as H obliged to occupy room as employee under employment contract, not as stranger, followed was requisite connection between employment and actions –

HC said CCIGI not liable for H’s actions – Said whether wrongful act committed in course or scope of employment depended on circumstances of particular case, including identifying what employee actually employed to do, and held out as being employed to do – Nothing in present case pointed to H’s drunken act being authorised, in any way required by, or incidental to, his employment – No real connection to employment – Appeal allowed.

Regulations, regulation-making power, prohibition on “participant in criminal organisation” entering “prescribed place”

Disorganized Developments Pty Ltd and ors v State of South Australia [2023] HCA 22 (2 August 2023)

Successful appeal from South Australia CA – Concerned validity of two Regulations (Cowirra Regulations), each of which purported to declare land in Cowirra, South Australia ("Cowirra land”), as "prescribed place" for purposes of s 83GD(1) Criminal Law Consolidation Act 1935 (SA) (1935 Act) – Provision made it offence for "participant in a criminal organisation" to enter or attempt to enter "prescribed place" – "Prescribed place" defined to mean place declared by regulation and 1935 Act conferred on Governor in Council general power to make regulations –

DD Cowirra land registered proprietor – S and T DD’s directors and only shareholder – Also Hells Angels Motorcycle Club members – Hells Angels criminal organisation for s 83GD(1) purposes – If Cowirra Regulations valid, S and T would commit offence if entered or attempted to enter Cowirra land –

Cowirra Regulations drafted as "variation" to earlier regulations, Cowirra land to list of places declared to be prescribed places – Cowirra Regulations did not "declare" Cowirra land to be prescribed places – CA said Cowirra Regulations valid because they "impliedly" declared Cowirra land to be prescribed place –

In HC, DD, S and T said (1) CA erred to find Cowirra Regulations validly declared Cowirra land to be prescribed places; and (2) Cowirra Regulations invalid as they were made in breach of duty to afford procedural fairness to them as Cowirra landowners and occupiers –

On (1) HC unanimously said Cowirra Regulations ineffective to declare Cowirra land to be prescribed place, and were therefore invalid – Said no available interpretation of Cowirra Regulations that included declaring Cowirra land to be prescribed places – On (2), majority said Cowirra Regulations invalid because Governor failed to afford DD, S and T, as Cowirra landowners and occupiers, procedural fairness before making Cowirra Regulations – No aspects of 1935 Act (such as unfettered nature of regulation-making power, Governor being repository of power, parliamentary oversight of regulation-making power, or Parliament's alternative power to make regulations by primary statute) were sufficient to displace common law presumption legislature does not intend to deny procedural fairness where power directly affected particular individual rights or interests – Court said procedural fairness would require reasonable notice to be given to owner or occupier of proposal to declare place to be prescribed place, to give them opportunity to respond – Appeal allowed.