New Zealand Supreme Court

Employment, personal grievances, costs

Shaw v Bay of Plenty District Health Board [2022] NZSC 117 (14 October 2022)

Unsuccessful leave application – S applied out of time for leave to appeal against two Employment Court judgments (substantive judgment and costs judgments) – DHB (now called Health New Zealand) summarily dismissed S in March 2015 for serious misconduct saying she had breached patient privacy – S raised two personal grievances with DHB for unjustified disadvantage (failure to provide  safe workplace free from bullying and harassment) and unjustified dismissal –

Employment Relations Authority (Authority) said regarding unjustified disadvantage claim, S had not identified any unjustified actions - Also did not raise disadvantage personal grievance within 90-day time limit in s 114(1)  Employment Relations Act 2000 - Regarding unjustified dismissal claim, Authority said S’s dismissal “decision open to a fair and reasonable employer” and therefore justified – Employment Court upheld Authority, saying disadvantage personal grievance not raised within 90-day time limit – Also said dismissal justified in light of patient privacy breach - In separate judgment, Court awarded DHB costs totalling $48,960 –

S applied for leave to appeal to CA – It said she was challenging fact findings rather than law and, even had they been questions of law, were without merit and not issues of general or public importance –

SC agreed with CA that questions largely fact-related – Related to particular circumstances – No issue of public or general importance – On costs said Court followed orthodox approach –

Application dismissed.

New Zealand Court of Appeal

Criminal procedure, appeals against conviction and sentence, misuse of drugs, money laundering

Milosevic v R [2022] NZCA 479

Appellants convicted on range of methamphetamine and cannabis offending, and associated money laundering charges following 8 week jury trial – Police operation “Operation Notus” – Various grounds of appeal included conduct of trials and summing up, decision declining severance of money laundering charges, evidence and cross-examination decisions – HELD: criticised interventions by Judge did not result in trial of defendants on the drug dealing charges being unfair – Challenges to convictions on drug offending charges failed – Unfortunate the Crown elected to lay money laundering charges at late stage which imposed heavy burden on defence counsel – Given lateness of application, Judge would have been justified in requiring charges to be severed – Judge required to advise jury they had to be sure the funds in question were derived from other offending with which defendants had never been charged – Money laundering convictions quashed – Appeals against sentences allowed in part.

Statutory demand, construction contracts

Demasol Ltd v South Pacific Industrial Ltd [2022] NZCA 480

Appeal from decision setting aside a statutory demand – Statutory demand sought payment of amount claimed in payment claims served by appellant on respondent under the Construction Contracts Act 2002 – Respondent was head contractor in respect of various demolition works at a redundant gas facility – Appellant specialised in asbestos removal and was engaged by respondent as a subcontractor to demolish a bin tank – Price of $100,000 quoted – Appellant sought payment for additional works claiming variations in the contract – Payment claims of $114,425 and $276,572 – Whether reasonably arguable second payment claim was invalid – HELD: second payment claim complied with statutory requirements in s20 – Respondent only belatedly disputed a number of matters raised in the payment claim which could have been covered in a payment schedule – Judge erred when embarked on an enquiry into the terms of the contract and the quantum and merits of the payment claim – Orders made by High Court set aside – Application to set aside statutory demand dismissed but time for complying with statutory demand extended.

Criminal procedure, evidence admissibility – Login required

Croft v R [2022] NZCA 481

C faced charged of sexual offending against a girl who was then under the age of 16 years and who was living in his home – C appealed decision permitting Crown to lead evidence at his trial of an incident in which C assisted complainant to insert a tampon – Judge held evidence was relevant, showed inappropriate sexual intimacy had become normalised in the relationship, and showed what Mrs C regarded as appropriate behaviour by C towards complainant – HELD: evidence properly characterised as relationship propensity evidence and to that extent was relevant – The evidence was not probative of any of the charges – No suggestion there was anything sexual in the incident – Not accepted the incident helped explain complainant’s delay in making her complaint or showed an acquiescence in inappropriate intimate activity which was probative of her acquiescence in the alleged sexual abuse – Probative value was low and unfair prejudice was high – Appeal allowed and evidence of the incident inadmissible.

New Zealand High Court

Rulings on Customary Marine Title and Protected Customary Rights

Re Edwards (Whakatōhea Stage Two) No. 7 [2022] NZHC 2644 (13 October 2022) Churchman J

Interim judgment under Marine and Coastal Area (Takutai Moana) Act 2011 (Act) - Rulings on Customary Marine Title (CMT) and Protected Customary Rights (PCR) recognition orders and wāhi tapu – HC made several determinations regarding CMT and PCR awards - Also directed applicants file further maps and evidence where necessary - Many applicants produced material beyond limited matters required for Stage Two hearing - No applicants who had obtained CMT orders filed survey plans which complied with Act requirements - First case where many issues relevant to Stage Two hearings had been considered - Because of technical difficulties experienced preparing survey plans, appropriate to give successful applicants opportunity to supplement evidence to comply with Court's directions.

High Court of Australia

Security, adverse security assessment, non-disclosure

SDCV v Director-General of Security [2022] HCA 32 (12 October 2022)

Unsuccessful appeal from Full Court FCA - Challenged validity of s 46(2) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) being contrary to Ch III Constitution - S‘s visa cancelled following Australian Security Intelligence Organisation adverse security assessment (ASA certificate) - ASA certificate and statement of grounds comprised decision (ASA decision) – S applied to Administrative Appeals Tribunal for merits review of ASA decision - Minister administering Australian Security Intelligence Organisation Act 1979 (Cth) issued certificates under s 39B(2)(a)  AAT Act, saying disclosure of some contents of documents relating to ASA decision would be contrary to public interest because it would prejudice security of Australia (certificated matter) - Tribunal provided with certificated matter, but not disclosed to S or his legal representatives - Tribunal affirmed ASA decision –

S appealed to FCA under s 44 AAT Act, including ground that Tribunal's decision not open on evidence before it – Full FCA heard appeal in original jurisdiction - Section 46(1) AAT Act, allowed FCA to have regard to certificated matter, but FCA required not to disclose certificated matter to S or his legal representatives - Section 46(2) provided that FCA "shall … do all things necessary to ensure that [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding" – During appeal, S also challenged constitutional validity of s 46(2) – FCA rejected constitutional challenge and dismissed appeal –

HCA majority said s 46(2) AAT Act valid law - No "minimum requirement" of procedural fairness applied to proceedings in Ch III court; ultimate question whether, taken as  whole, court's procedures for resolving dispute accorded both parties procedural fairness and avoided practical injustice - Appeal under s 44, to which s 46 applied, additional to available remedies under s 75(v) of Constitution or s 39B of Judiciary Act 1903 (Cth) - Practically, any "disadvantage" occasioned by s 46(2) would have been avoided by choice of proceedings under these other remedies - That choice would have denied S, by likely operation of public interest immunity rules, forensic advantage s 46(1) offered in having certificated matter provided to Court - Section 46(2) operated inseparably from s 46(1) to provide S with forensic advantages different from those otherwise provided by law - Having chosen to pursue remedy that afforded those advantages, S suffered no practical injustice – Appeal dismissed.

Supreme Court of Canada

Murder, evidence admissibility, overheard conversation, confession

R v Schneider [2022] SCC 34 (7 October 2022)

Successful appeal from British Columbia CA - In September 2016, body of Japanese student K found in suitcase in Vancouver - Police arrested and charged S with second degree murder following tip from his brother – Brother testified for Crown at jury trial - Judge held voir dire, determined if brother’s testimony about what he overheard admissible evidence - Judge decided to admit evidence about overheard conversation - Said what brother heard relevant to trial issue - Secondly, said evidence probative value outweighed prejudicial effect – Jury convicted S – CA majority allowed his appeal – Crown appealed to SC –

SC allowed appeal – Majority allowed appeal – Said three questions: Was what brother overheard relevant? Was exception to hearsay rule applicable? Did trial judge exercise her discretion correctly in deciding that probative value of evidence outweighed its prejudicial effect? Said answer to all three questions was “yes” - What brother overheard relevant - Also, “party admission” exception applied here because allowed witness testimony about confession even if witness not party to conversation - Finally, trial judge used discretion correctly and further minimised evidence potential harmful effects with strong jury caution – Appeal allowed.