New Zealand Law Society - Courts roundup 6 March - 13 March 2024

Courts roundup 6 March - 13 March 2024

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

High Court Judges Bench

New Zealand Supreme Court

Insurance, “No win no pay”

Pfisterer v Claims Resolution Service Ltd and anor [2024] NZSC 18 (5 March 2024)

Unsuccessful leave application – P entered into “no win, no pay” contract with CRS to facilitate resolving insurance claim – GS subsequently engaged to file proceedings against P’s insurer – However, P’s relationship with GS broke down and she engaged new lawyers –

When CRS sought to recover fees for its services, P raised several affirmative defences and counterclaims against both respondents – Comprised unconscionable bargain, breach of contract, misleading and deceptive conduct and breach of fiduciary duty – HC largely ruled against P – Found two breaches of fiduciary duty by GS, but said breaches did not cause loss – No relief awarded – CA upheld HC decision – P sought leave to appeal to SC –

SC said did not meet leave criteria – Emphasis had to be to challenge lower court fact findings – No matter of general or public importance – No matter of commercial significance – No risk of substantial miscarriage of justice – Application dismissed.

Sexual offences, ESO

Mist v Chief Executive Department of Corrections [2024] NZSC 20 (5 March 2024)

Unsuccessful leave application – HC imposed Extended Supervision Order (ESO) on M on 26 August 2022 for maximum 10-year term and with an intensive monitoring condition for maximum 12 months – M consented –

M applied to CA for leave to appeal out of time against ESO imposition – On 6 November 2023, granted application for leave to appeal out of time but dismissed appeal – Sought leave to appeal to SC –

ESO imposed on M in anticipation of his release from 20-year sentence for sexual offending against five girls aged between seven and 15 and manslaughter of his teenage partner – M had been sentenced to preventive detention following Solicitor-General’s successful appeal to CA – SC set that sentence aside on appeal – Subsequently replaced in further CA decision by 20-year prison sentence because preventive detention unavailable due to age – M did not complete any rehabilitative programs while incarcerated –

SC said application did not meet leave criteria – Concurrent findings in Courts below that statutory criteria met and CA  “clear conclusion” M still presented high level of risk of committing relevant sexual offence in future – SC noted gravity of offending, lack of community support and had not undertaken rehabilitation programmes in prison – In such circumstances, whatever additional considerations that should have been taken into account, no risk of miscarriage of justice – Application dismissed.

Public Protection Order, imposition of

Pori v Chief Executive Department of Corrections [2024] NZSC 22 (5 March 2024)

Unsuccessful leave application – P applied for leave to appeal CA decision dismissing appeal against imposing public protection order under Public Safety (Public Protection Orders) Act 2014 (PPO Act) –

History of sexual offending both in Cook Islands (where born) and New Zealand – After imprisonment sentence imposed for sexual offence against child in 2006, Extended Supervision Order (ESO) imposed in 2011 – In 2017, further ESO (with intensive monitoring) imposed for balance of original ESO term –

P said proposed appeal would clarify proper approach to s 12(2) PPO Act – Particularly said s 12(2) should be interpreted in way that gave effect to principle in s 5(c) that court had regard to principle that “a public protection order should not be imposed on a person who is [relevantly] eligible to be detained under the Mental Health” Act – Said this meant Department had to formally decide about appropriateness of application under s 45 Mental Health Act –

SC said might wish at some point to consider questions about s 12(2) processes and its interaction with s 5(c) – Present case not appropriate one to address those issues – Leave criteria not met – Application dismissed.

Defamation, interim injunction

Dew v Discovery NZ Ltd [2024] NZSC 21 (5 March 2024)

Unsuccessful leave application – D sought leave to appeal CA judgment declining to restrain publication of programme accusing him and others of sexual abuse in November 1977 – D media organisation – Programme, which intended to be broadcast on TV3 and other media platforms associated with D –

SC said proposed appeal from interlocutory order in defamation proceeding brought by applicant – Had to cross threshold in s 74(4) Senior Courts Act 2016, leave must not be granted unless necessary in interests of justice to decide proposed appeal before proceeding concluded – SC said if leave denied, D’s name would be published, irrevocably, in connection with allegations – But he could be vindicated at trial – Application declined.

New Zealand Court of Appeal

Alleged sexual abuse, Suppression, Broadcast - Login Required

[D] v [DNZ Ltd] [2023] NZCA 589

Extended supervision order, Offence against child 

Madden v Chief Executive of the Department of Corrections [2024] NZCA 8

Unsuccessful appeal against a 5 year extended supervision order (ESO) imposed on appellant for a representative offence against a child – Sought permanent name suppression – Sought to adduce fresh evidence – Whether DC erred in imposition of ESO – Further evidence neither fresh nor relevant to whether DC erred – Term of ESO justified, explicitly in terms of community safety – Threshold for permanent name suppression not met – HELD: Application to adduce further evidence declined - Application for permanent name suppression was declined - Appeal dismissed.

Criminal law, Manifestly excessive, Murder, Youth, Fresh evidence, Minimum period of imprisonment

Kriel v R [2024] NZCA 45

Successful application to adduce further evidence by applicants two, three and four – Unsuccessful application for leave to appeal out of time by applicants one, two, three and five – Successful application for leave to appeal out of time by applicant four - Each of the five applicants were convicted of murder, the offences committed when the applicants were aged between 14–18 years old – Whether the CA changed the law relating to the sentencing of young persons convicted of murder in its decision in Dickey v R - Three applicants also apply to adduce fresh evidence in support of these applications - Much of proposed evidence was not fresh - Evidence was cogent in that it explained in considerable detail the psychiatric and psychological factors that may have influenced the applicants’ offending - It is in the interests of justice to admit the reports – HELD: Applications to adduce further evidence granted - Application for leave to appeal out of time granted for applicant four only.

Property development, Joint venture agreements, Misrepresentation

Shiu v CSR Pokeno Ltd [2024] NZCA 48

Successful appeal against HC decision -  The appellant, a property developer, entered into joint venture agreements with the respondents for a development opportunity – Respondents claimed that they were induced to enter into the agreements based on misrepresentations made by the appellant regarding commission payments and profit sharing – HC upheld the respondents claims – Appellants argued that the Judge made findings of fact that were against the weight of evidence and erred in law​ – HELD: The commission representation was not the effective cause of the loss claimed - Any causative link there might have been between the commission representation and the claimed loss was severed by the conduct of the respondents - Appeal allowed - Cross-appeal dismissed. 

Rape, Unfair trial, Sentence manifestly excessive

Metuala v R [2024] NZCA 50

Unsuccessful appeal against conviction on one charge of rape – Successful appeal against sentence of 8 years 10 months – Whether the trial judge's interventions during the trial resulted in an unfair trial – Whether the sentence was manifestly excessive – Argued that starting point too high, and too little credit given – Whilst the Judge did err in some aspects of the trial the Judge’s interventions and comments did not make the trial unfair to the appellant - Judge did err in discount given for time spent on EM bail – HELD: Appeal against conviction dismissed - Sentence of 8 years 3 months substituted.

Habeas corpus, Custody order, Guardianship order

Adamson v Chief Executive of Oranga Tamariki [2024] NZCA 52

Unsuccessful appeal against custody and guardianship orders made in the FC in relation to the second appellant’s child – Appellant’s applied for a writ of habeas corpus in the HC – HC decision that orders were lawfully in place and child was not unlawfully detained – Whether application for habeas corpus should have been remitted to the FC - ​Argument that the FC orders were invalid due to a breakdown in the implementation of the child's plan was rejected - The Oranga Tamariki Act 1989 (the Act) allows for regular review and revision of such plans – No doubt as to the validity of the orders, the HC Judge had expressly stated that the orders were lawfully in place - The restraining order against the second appellant did not constitute detention under the Habeas Corpus Act 2001 – Child’s current placement in a residence or institution authorised by the Act did not amount to illegal detention – HELD: Appeal dismissed.

New Zealand High Court

Cryptopia, trust asset distribution

Ruscoe v Houchens [2024] NZHC 419 (1 March 2024) Palmer J

Orders re Cryptopia distribution – HC made various orders re crypto currency Cryptopia Ltd (in liquidation) trust assets – Accorded with liquidators’ application.

Defamation, injunction judgment

Dew v Discovery NZ Ltd [2023] NZHC 2105 (8 August 2023) Palmer J

Reasons injunction judgment following unsuccessful appeal to CA and SC leave decline – D applied for interim injunction, restraining Discovery NZ Ltd from screening news item on Three’s Newshub – HC declined application because D had not met high legal threshold for interim injunction – Not shown there is no reasonable possibility Discovery had defence against defamation or little legitimate public concern in information to be released – HC had issued interim injunction to preserve applicant’s appeal rights.

Note SC leave judgment in NZSC cases.

Defamation, reissued judgment

R v Discovery NZ Ltd [2023] NZHC 2533 (8 September 2023, re-issued 8 March 2024) Palmer J

Reasons for decision on interim injunction to prevent publication of news story on NewsHub TV3 following SC judgement regarding Dew.

High Court of Australia

Immigration, visa cancellation, jurisdictional error

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (6 March 2024)

Successful certiorari application – HC under original jurisdiction quashed Minister’s delegate’s decision to cancel L’s visa because of jurisdictional error – Delegate erroneously considered offences for which L sentenced when under 16 years old –

Fiji citizen L, first arrived in Australia in 1988 at age four – Granted visa to remain permanently in 1999 – Between 1996 and 2001, L either pleaded guilty to, or Children's Court found him guilty of numerous offences including robbery in company (youth offences) – In 2003 and 2010, DC convicted and sentenced him to imprisonment terms for further robbery offences – In 2013, delegate cancelled L’s visa under s 501(2) Migration Act 1958 (Cth) (delegate's decision) –Delegate provided with issues paper which addressed L’s circumstances and attached  "National Police Certificate" – Certificate described L as having been "convicted" of youth offences – Delegate's reasons noted took into account L’s convictions, including "convictions" for offences for which Children’s Court sentenced him –

L commenced proceedings in HC original jurisdiction seeking certiorari to quash delegate's decision – Alleged, by having regard to youth offences, delegate took into account material precluded from considering under ss 85ZR and 85ZS Crimes Act 1914 (Cth) – Section 85ZR(2)(b) provided where, under State law, person "in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence", they shall be taken "in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority" never to have been convicted of that offence –

At time of youth offences, s 14(1)(a) Children (Criminal Proceedings) Act 1987 (NSW) prohibited Children's Court from proceeding to, or recording, any conviction if child under 16 years of age – L said s 14(1)(a), meant taken never to have been convicted of youth offences – Said delegate precluded from taking youth offences into account –

HC said s 14(1)(a) State law sufficient to engage s 85ZR(2) Crimes Act – L taken as never convicted of offences dealt with in Children's Court – Sections 85ZR and 85SZ Crimes Act precluded delegate from considering youth offences – As Minister conceded, considering offences material to delegate's decision – Jurisdictional error affected decision and writ of certiorari quashing decision issued.

United Kingdom Supreme Court

Trade mark, cross-border internet marketing

Lifestyle Equities CV v Amazon UK Services Ltd [2024] UKSC 8 (6 March 2024)

Unsuccessful appeal from CA – Appeal concerned application of EU and UK trade mark law to cross-border marketing and sale of goods on internet – Lifestyles owners and exclusive licensees of UK and EU trade marks relating to “BEVERLY HILLS POLO CLUB” brand (UK/EU Marks) – Corresponding trade marks in USA are owned by commercially unrelated entity, which produced goods identical to those for which Lifestyle’s trade marks registered in UK and EU (USA Branded Goods) – Amazon marketed and sold USA Branded Goods on USA website, which Lifestyle claimed infringed its rights in UK/EU Marks –

Dispute related entirely to events that occurred before UK left EU – UK trade mark law at that time substantially governed by EU legislation and case law – Agreed before CA that issues arising on appeal concerning EU Marks might be decided by reference to Regulation 2017/1001 on European Union trade mark (EUTM Regulation) – Also common ground issues not affected by Brexit – Article 9(2) EUTM Regulation provided (among other things) that owner of an EU trade mark entitled to prevent third parties from using in course of trade, without owner’s consent, any sign which was identical with EU trade mark regarding goods identical with those for which EU trade mark registered – Section 10(1) Trade Marks Act 1994, which applied to UK trade marks, in this respect materially same terms as Article 9(2) -

Lifestyle claimed Amazon targeted consumers in UK/EU, in contravention of above trade mark laws, by advertising and offering for sale USA Branded Goods on USA website – HC dismissed Lifestyle’s claims, concluding USA Branded Goods listings on Amazon’s USA website not targeted at consumers in UK/EU – CA allowed Lifestyle’s appeal, saying advertisements and offers for sale of USA Branded Goods targeted at UK/EU consumers – CA granted injunction against two Amazon defendants and permitted Lifestyle to pursue an enquiry as to damages same defendants’ acts of infringement caused – Amazon appealed to SC –

SC unanimously dismissed Amazon’s appeal – Said Amazon targeted UK consumers by displaying USA Branded Goods on USA website and marking them available for shipment to UK, which in turn infringed UK/EU Marks – Injunction and order relating to an enquiry as to damages CA made remained in place –

SC said, among other things, to determine whether marketing goods on foreign website targeted at consumers within relevant territory, here UK, question to be answered by court is whether average consumer, being someone reasonably well informed and reasonably observant, would consider website to be directed at him or her – Mere accessibility of overseas website to UK consumer not enough on its own to establish targeting – Court must carry out multifactorial assessment of all relevant circumstances to assess reaction of average consumer and assess whether there was targeting – Appeal dismissed.

Extradition, “deliberately absented himself from his trial”

Bertino v Public Prosecutor's Office, Italy [2024] UKSC 9 (6 March 2024)

Successful appeal from HC on point of law of general public importance – B’s extradition sought under European Arrest Warrant (EAW) – Court of Pordenone public prosecutor’s office (requesting judicial authority) issued EAW on 6 February 2020 seeking to enforce sentence of one year’s imprisonment imposed for sexual activity with an underage person – B had not been arrested or questioned formally after alleged offence – However, on 23 July 2015, B attended police station in Sicily where he signed document which recorded that he was under investigation and in which he elected Italy as his domicile – Document warned that if B did not notify any change of domicile service of any document would be executed by delivery to defence lawyer either of B’s choosing or of court’s appointment – B left Italy in November 2015 and came to UK – Requesting judicial authority subsequently unsuccessful in serving writ of summons dated 12 June 2017 on B and trial took place in his absence –

District judge (DJ) determined whether to extradite B under EAW referring to questions set out in s 20 Extradition Act 2003 (Act) Only issue for determination arose under s 20(3), whether requested person “deliberately absented himself from his trial” – DJ concluded B left country so that he could not be served with court papers or future dates for his trial and that he demonstrated ‘manifest lack of diligence’ in moving address without notifying requesting judicial authority – Sufficient to establish deliberate absence under s 20(3) – HC dismissed B’s appeal but certified following point of law of general public importance: “For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Act, must the requesting judicial authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?” – SC granted B permission to appeal on this point –

SC unanimously allowed appeal – Said for judge at extradition hearing to be satisfied that requested person “deliberately absent from trial” within s 20(3) requesting judicial authority had to demonstrate to criminal standard of proof that requested person had unequivocally waived their right to be present at trial – Ordinarily required person to have actual knowledge they could be convicted and tried in their absence, although there  might be cases where person’s behaviour of nature that established unequivocal waiver without establishing actual knowledge – Appeal allowed, extradition order quashed, ordered B’s discharge.

Extradition, “would be entitled to a retrial or (on appeal) to a review amounting to a retrial”

Merticariu v Judecatoria Arad, Romania [2024] UKSC 10 (6 March 2024)

Successful appeal from HC on point of law of general public importance – M arrested in England on 25 September 2019 under European Arrest Warrant (EAW) Judecatoria Arad (requesting judicial authority) issued –

EAW issued based on Romanian court imposing sentence on B on 11 April 2019 for burglary – DJ determined whether to extradite B under EAW referring to questions set out in s 20 Extradition Act 2003 (Act) – DJ determined M not present at trial and had not deliberately absented himself from trial –

DJ therefore required under s 20(5) to ask whether M “would be entitled to a retrial or (on appeal) to a review amounting to a retrial” on return to Romania – Concluded M had right to retrial in Romania even though required to apply for retrial in Romania and application success contingent on M demonstrating had not deliberately absented himself from trial – DJ ordered M’s extradition –

HC dismissed H’s appeal but certified following points as points of law of general public importance for SC to determine: “In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?” – SC granted permission for M to appeal on these points of law –

SC unanimously allowed appeal – Said to establish that person would be entitled to retrial or (on appeal) to review amounting to retrial on return to requesting state entitlement must not be dependent on any contingency, except for purely procedural matters such as making an application in manner and in time prescribed in requesting state –

Said short point in appeal concerned s 20(5)’s proper construction – Natural and ordinary meaning words in s 20(5) plain [51] – Judge must decide whether person is “entitled” to retrial or (on appeal) to review amounting to retrial – Section 20(5) did not require judge to decide different question, namely whether person “entitled to apply for a retrial” – Entitlement to retrial could not be contingent on court in requesting state making factual finding that  person not present at or was not deliberately absent from their trial – SC  quashed judge’s order and ordered M’s discharge.

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