New Zealand Law Society - Courts roundup 8 June - 14 June 2023

Courts roundup 8 June - 14 June 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

NZBORA, State actors’ conduct

Wallace v Attorney-General and anor [2023] NZSC 66 (6 June 2023)

Unsuccessful leave application – Related to Police shooting SW in 2000 – Mother, RW, in 2014 filed civil claim alleging State actors breached SW’s right to life as protected in s 8 New Zealand Bill of Rights Act 1990 – RW succeeded to limited extent in HC – Appealed unsuccessful aspects and Crown cross-appealed – CA ruled for Crown in both appeals –

SC agreed with Crown that only three appeal grounds raised questions of general importance – Most other proposed grounds case and fact specific, and unsuitable for consideration on second appeal due to evidential and procedural basis upon which case proceeded –

Regarding three grounds raised matters of general importance, SC not satisfied this was appropriate case to address them – Application dismissed.

New Zealand Court of Appeal

Name suppression - Login Required

R (CA 654-2022) v R [2023] 125

Evidence admissibility, severance - Login Required

Church v R [2023] NZCA 212

Hearsay, deceased complainant - Login Required

C (CA 31-2023) v R [2023] NZCA 214

Employment, Uber, “employee” 

Rasier Operations BV v E Tū Inc [2023] NZCA 216

Successful application for leave to appeal on question of law – Applicants operated within the Uber group – Respondents sought declarations in the Employment Court on behalf of the drivers as to their employment status and declaration made that each of the drivers were in an employment relationship when carrying out their work for the applicants – Whether question of law appropriate for appeal – meaning of “employee” in s6 Employment Relations Act 2000 – Application of test in s6 – Joint employment finding – HELD: first two questions of law were concerned with the correct approach to s6, and raised questions of law in the context of new ways and fast-moving changes to the way in which work done – Third question raised question of law as to the factors that determined whether there was a joint employment of an employee – In the context of Uber businesses with multiple individual drivers who might be impacted by the decision, it was of general or public importance – Leave to appeal granted on all three questions of law.

Property law, caveat

Lendich v Codilla [2023] NZCA 222

Unsuccessful appeal from decision declining application for an order a caveat not lapse – 1982, L Ltd transferred property to a long-term company employee, P – At the time appellant (L) was governing director and shareholder of L Ltd – Consideration for the transfer was $1 – P died in 2018, and respondent was executor of his estate – L claimed interest in the property under a resulting trust and lodged caveat – Whether L had an reasonably arguable case for the interest claimed – Applicable principles in Philpott v Noble Investments Ltd – Elements of resulting trust in Potter v Potter – HELD: memorandum of transfer signed by L expressly recorded that consideration had been paid in the sum of $1 – L expressly acknowledged receipt of the consideration in the key contemporaneous document – Well settled that courts would not inquire into the adequacy of consideration – Not reasonably arguable that L intended to retain the beneficial interest in the property for himself or L Ltd – Appeal dismissed.

New Zealand High Court

Sentencing, murder

R v Yu [2023] NZHC 1391 (2 June 2023) Moore J

Sentencing – Y pleaded guilty to murder – HC said manifestly unjust to impose 17-year MPI as would not reflect available discounts for personal mitigating factors – Notional starting MPI 16 years considered to accurately reflect role and culpability in offending – Discounts of: four years for guilty plea and assistance; one year nine months for age, vulnerable psychological condition, and status as foreign prisoner; and three years for time spent on pre and post-sentence detention – Total discounts eight years nine months from starting MPI of 16 years, producing notional MPI seven years and three months –

Manifestly unjust to impose life imprisonment due to: disparity between appropriate notional MPI and 10-year mandatory MPI; effect on total effective end sentence of imposing cumulative sentence on existing sentences; and parity with co-defendant – Also manifestly unjust as matter of overall impression –

Starting point 19 years' imprisonment adopted for finite sentence – Discounts: 15 per cent for guilty plea; 15 per cent for assistance; 10 per cent for age, vulnerable psychological condition, and status as foreign prisoner; and three years for time spent in pre and post-sentence detention – Total discounts ten years seven months from 19 year starting point, producing eight years five months' imprisonment –

Uplifted to 15 years' imprisonment for proportionate response to seriousness of offending – MPI 8 years' imprisonment satisfied sentencing purposes – 

Final sentence: 15 years' imprisonment with 8-year MPI – Imposed cumulatively on existing sentences for accessory to murder and drug charges, producing single notional sentence ten years six months' imprisonment – Eligibility for parole two-and-a-half years earlier (17 January 2029) than if sentence imposed concurrently (2 June 2031).

Interim relief, Emissions Trading Scheme

Insley v Minister of Climate Change [2023] NZHC 1388 (5 June 2023) Gault J

Unsuccessful urgent application – I applied for interim orders under s 15 Judicial Review Procedure Act 2016 declaring that Crown ought not to: (a) make any public announcement relating to review of Emissions Trading Scheme (ETS), including Government’s proposals under it, until I’s judicial review claim determined or Court ruled otherwise; and (b) release or announce substantive proposal document for ETS review scope until claim is determined or Court ruled otherwise –

I’s claim (in draft) brought as chair of Te Taumata, collective represented Māori interests in trade, including Māori forestry owners within ETS – Alleged procedural review grounds concerning Crown’s lack of “pre-engagement”, meaning engagement prior to wider public announcement and consultation, on government’s proposals under ETS review – Alleged ETS review initiated in September 2022 but not publicly announced until 22 March 2023 and that during this period detailed policy options paper prepared without consultation with Māori and document did not contain adequate analysis to ensure that options te Tiriti o Waitangi |Treaty of Waitangi compliant –

Alleged document proposals ETS market sensitive and release would impact significantly on market participants; have significant and irreversible effects on Māori forestry, carbon assets and wider Māori economy; and disproportionately impact on Māori – Alleged pre-engagement in March 2023 flawed and not subsequently remedied – Review grounds: (1) failure to satisfy requirements of s 160 Climate Change Response Act 2002 (CCRA); (2) procedural impropriety; (3) legitimate expectation; (4) breach of te Tiriti principles; and (5) selective engagement with Māori groups – Issues: (1) whether interim order of kind available reasonably necessary to preserve I’s position pending final determination; and (2) whether circumstances in favour or against granting interim relief –

HC: (1) accepted for threshold question purposes interim order of kind available (albeit less broad than sought) might be necessary to preserve I’s position; but (2) strengths and weaknesses of intended claim and all repercussions, public and private, weigh against granting interim orders – Application dismissed.

Sentencing, drug offending

R v Valent [2023] NZHC 1432 (9 June 2023) Fitzgerald J

Sentencing – V convicted of 86 charges for serious class A and B drug offending – Offending fell into Zhang band 5 – Drug quantity involved at least 200 kgs – V also drug syndicate leader – Offending fell within most serious of cases for which life imprisonment imposed for drug offending – No mitigating factors to justify stepping back from life imprisonment – 10-year non-parole period automatically imposed under s 84(3) Parole Act 2002.

United Kingdom Supreme Court

Charities, charitable purpose, rates relief

London Borough of Merton Council v Nuffield Health [2023] UKSC 18 (7 June 2023)

Unsuccessful appeal from CA – Sections 43(5) and (6)(a) Local Government Finance Act 1988 (LGFA) provided for mandatory 80% relief from business rates where "the ratepayer is a charity or trustees for a charity" and premises were "wholly or mainly used for charitable purposes (whether of that charity or of that and other charities)" – SC asked to decide whether Nuffield Health (NH) entitled to 80% relief for members-only gym known as Merton Abbey –

NH registered charity – Purposes "to advance, promote and maintain health and healthcare of all descriptions and to prevent, relieve and cure sickness and ill health of any kind, all for the public benefit" – Pursued purposes primarily through providing gym facilities, including Merton Abbey gym – Also operated private hospitals and clinics – Merton Abbey gym mainly restricted to fee-paying NH gym members – In April 2019, standard membership fee £80 per month (or £71 per month for those who committed to longer period of membership) – NH offered limited services to non-members through Merton Abbey gym –

NH claimed mandatory 80% relief from business rates under ss 43(5) and (6)(a) LGFA from 1 August 2016, when it acquired Merton Abbey gym from Virgin Active – Council refused relief because membership fees set at level which excluded people of modest means from enjoying gym facilities – Council’s view was this meant gym not used for charitable purposes because public benefit requirement not satisfied –

NH challenged decision and succeeded, both in HC and CA – Council appealed to SC –

SC unanimously dismissed Council’s appeal – Said NH used gym for charitable purposes – NH entitled to mandatory 80% relief under ss 43(5) and (6)(a) LGFA from 1 August 2016 – Appeal dismissed.