New Zealand Law Society - Courts roundup 9 November - 15 November 2023

Courts roundup 9 November - 15 November 2023

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

Auckland High Court 2

New Zealand Supreme Court

Negligence, building consents, code compliance certificates

Linehan v Thames-Coromandel District Council [2023] NZSC 149 (10 November 2023)

Unsuccessful leave application – L, W and B trustees of trust brought claim against Council for negligence issuing building consents, inspecting and issuing code compliance certificates in relation to remediation work carried out on Whitianga house – HC said Council negligent regarding issuing code compliance certificate in 2011 (certification breach) and issuing building consent in 2016 (consenting breach) – HC awarded damages for both (totalling $796,138) and general damages for stress and anxiety ($15,000)  – Figures were reduced 50 per cent to reflect trustees contributory negligence – CA dismissed trustees’ appeal – Applied for leave to appeal to SC on contributory negligence issue –

SC said CA recorded parties largely agreed on relevant contributory negligence principles – No challenge in application to applicable contributory negligence principles – Rather, proposed appeal would reprise arguments in CA about application to facts – Other proposed issues, relating to pleadings, drawing of inferences and burden of proof, also turned on particular facts – No questions of general or public importance arose – No appearance of miscarriage of justice – Application declined.

New Zealand Court of Appeal

Extended supervision order, leave to appeal out of time, sexual offending

Mist v Chief Executive of the Department of Corrections [2023] NZCA 549

Successful application for leave to appeal out of time – Successful application for leave to file a post-hearing memorandum – Sentenced to 20 years’ imprisonment with a minimum period of imprisonment of 10 years for manslaughter, male assaults female (1 representative charge), sexual conduct with a young person aged 12 to 16 (2 representative charges), sexual violation by rape (x2), and sexual violation by unlawful sexual connection (x2) - Appellant consented to an extended supervision order (ESO) with an intensive monitoring condition – Whether the Judge gave insufficient reasons for finding that the grounds for making the ESO order were made out – Whether there was sufficient evidence to support such a finding – Appeal against ESO treated as an appeal against sentence – Appeal only allowed if satisfied that for any reason there was an error in the sentence imposed, and that a different sentence ought to be imposed – HELD: Application for leave to appeal out of time and for leave to file a post-hearing memorandum granted – Appeal dismissed.

Deception, political donations

Zheng v R [2023] NZCA 551

Partially successful appeals by three appellants against convictions of obtaining a benefit by deception contrary to s240(1)(a) Crimes Act 1961 – Appellants participated in a strategy that hid the true source of donations to the National Party in 2017 and 2018 – Whether the appellants could be convicted when it was accepted they did not receive, directly or indirectly, a benefit for themselves from the donations – HELD: Appeals against some charges allowed for all three appellants – Convictions on those charges quashed – No retrials ordered.

Charitable status

Better Public Media Trust v Attorney-General [2023] NZCA 553

Successful application to adduce further evidence – Successful appeal against decline of charitable status – Whether the HC erred when it concluded the appellant did not qualify for registration as a charity under the fourth head of charitable purpose set out in s5(1) Charities Act 2005 because its purposes were not beneficial to the community – HELD: Appellant’s overarching purpose was clearly linked to the protection and promotion of democracy in NZ – Appellant met the criteria for registration under the fourth head of charitable purposes – Appellant to be registered as a charity.

Domestic violence, propensity evidence - Login Required

[N] v R [2023] NZCA 554 

Admissibility of hearsay statements - Login Required

[A] v R [2023] NZCA 555  

High Court of Australia

Constitutional law, citizenship

Jones v Commonwealth of Australia [2023] HCA 34 (1 November 2023)

Unsuccessful constitutional challenge – J challenged validity of s 34(2)(b)(ii) Australian Citizenship Act 2007 (Cth) (Act) – HC said s 34(2)(b)(ii) supported by s 51(xix) Constitution, which conferred power to make laws with respect to "naturalization and aliens" on the Commonwealth Parliament and did not repose power in Minister administering Act – Exclusively judicial function of punishing criminal guilt contrary to Ch III of the Constitution –

J born in United Kingdom in 1950 – Migrated to Australia with his parents in 1966 – In 1988, applied for and was granted certificate of Australian citizenship under the now-repealed Australian Citizenship Act 1948 (Cth)  – He was, and remained, British citizen – In 2003, convicted in Queensland DC of five counts of indecent dealing and indecent assault committed between 1980 and 2001 sentenced to two and a half years' imprisonment for each count – Two counts related to conduct occurring entirely before became an Australian citizen in 1988 – In 2018, Minister for Home Affairs, Immigration and Border Protection revoked J’s Australian citizenship under s 34(2) Act – By special case in HC original jurisdiction, J challenged validity of s 34(2)(b)(ii) on grounds not supported by s 51(xix) Constitution or, alternatively, because it reposed in Minister the exclusively judicial function of punishing criminal guilt contrary to Ch III Constitution –

HC majority said s 34(2)(b)(ii) not invalid in J’s respect – Provided for act or process of denaturalisation supported by "naturalization" limb of s 51(xix) Constitution, because condition imposed on J's naturalisation reasonably capable of being seen as necessary to protect integrity of the naturalisation process – Power conferred on Minister to denaturalise Australian citizen not power to punish criminal guilt and not otherwise exclusively judicial – Commonwealth Parliament's conferral power on Minister rather than court not contrary to Ch III Constitution – Challenge declined.

Supreme Court of Canada

Publication ban

Canadian Broadcasting Corporation v Manitoba [2023] SCC 27 (9 November 2023)

Unsuccessful appeal from Manitoba CA – O convicted of first-degree murder in 1987 and sentenced to life in prison with no chance of parole for 25 years – In 2014, federal Minister of Justice asked Manitoba CA if there had been miscarriage of justice at his 1987 trial – In 2018, CA said miscarriage of justice had indeed occurred and set aside conviction –

During wrongful conviction proceedings before the Manitoba Court of Appeal, O sought to enter affidavit into evidence concerning death of witness involved in proceedings – CA issued publication ban over affidavit – In 2018 decision setting aside O’s conviction, CA did not accept affidavit into evidence, but ordered publication ban on contents remain in effect –

In May 2019, Canadian Broadcasting Corporation (CBC) asked CA to lift publication ban – CA refused, ruling since had already decided O’s case, no longer had authority to reconsider publication ban –

CBC appealed two CA decisions to SC: 2018 decision ordering publication ban and 2019 decision refusing to reconsider the publication ban –

SC ruled in 2021 CA did have authority to reconsider ban and returned CBC’s motion to lift publication ban for determination – SC then adjourned CBC’s appeal of ban itself – Manitoba CA unanimously dismissed returned motion – SC then unanimously dismissed ban appeal –

Said generally court proceedings open and public – Known as open court principle and protected by right to freedom of expression guaranteed by Canadian Charter of Rights and Freedoms – Here, strong public interest in protecting privacy of spouse of deceased witness – Affidavit disclosure would reveal highly sensitive and acutely personal information that would directly engage spouse’s dignity interest – Moreover, publication ban necessary to prevent serious risk to dignity of witness’s spouse – Ban not overbroad or vague and no reasonable alternative to its terms – SC said benefit significantly outweighed minimal negative effects on right of free expression and by extension, principle of open and accessible court proceedings – Affidavit did not play role in determining that wrongful conviction had occurred – Ban upheld.

Occupational health and safety, liability for statute breach

R v Greater Sudbury (City) [2023] SCC 28 (10 November 2023)

Unsuccessful appeal from Ontario CA – Arose from fatal accident and concerned proper interpretation of Ontario’s Occupational Health and Safety Act (Act) – In September 2015, pedestrian was struck and killed in Sudbury, Ontario, by Interpaving employee who was driving road grader in reverse through intersection – Corporation of the City of Greater Sudbury had contracted with Interpaving to act as constructor to repair downtown water main – Contrary to provincial construction projects regulation (Regulation), no fence placed between construction project workplace and public intersection and no signaller assisting Interpaving worker – In separate proceedings, Interpaving convicted of breaching duty as employer under s 25(1)(c) Act to “ensure that…the measures and procedures prescribed [in the Regulation] are carried out in the workplace” –

Issue in this appeal whether City liable as employer for breaching same duty – City charged by Ontario Ministry of Attorney General (Ministry of Labour, Immigration, Training and Skills Development) under s 25(1)(c) – Section 1(1) Act defined employer as person who employs or contracts for services of one or more workers – City agreed was construction project owner but denied being employer because lacked control of repair work and had delegated control to Interpaving –

Trial judge acquitted City – Said Interpaving, not City, had direct control over workers and intersection, meaning City was not employer under s 1(1) Act – Alternatively, said even if City had breached obligations as employer, accepted defence had taken every precaution reasonable in circumstances, known as due diligence defence – Crown appealed to provincial offences appeal court who upheld the City’s acquittal, but did not address trial judge’s conclusion on City’s due diligence defence –  

Ontario CA unanimously allowed appeal and set aside decision of provincial offences appeal court judge – Applied definition of “employer” established in earlier decision from Ontario CA, which excluded control requirement to find City liable under s 25(1)(c) Act – Returned question of City’s due diligence defence to provincial offences appeal court for determination – City appealed to SC –

SC dismissed appeal – Said City was employer of Interpaving and had breached its duty under s 25(1)(c) Act – Said nothing in text, context or purpose of Act required Crown to establish control over workers or workplace to prove City breached obligations as employer under s 25(1)(c) – Said diminishing employer’s duties by reading in control requirement would thwart purpose of this remedial public welfare legislation –

However, SC said control properly considered to decide whether employer having breached its obligations in Act could nevertheless defend itself on basis acted with due diligence – Open to accused – Here, City had to prove that lack of control suggested took all reasonable steps in circumstances – Appeal dismissed – CA order returning due diligence defence to lower court upheld. 

United Kingdom Supreme Court

Private international law, revenue rule

Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) [2023] UKSC 40 (8 November 2023)

Unsuccessful appeal from CA – Skatteforvaltningen (SKAT), Danish Customs and Tax Administration, issued claims in England and Wales against several parties, including appellants (SCP) – SKAT alleged parties submitted fraudulent applications for tax refunds to which they were never entitled –

When SKAT brought proceedings in Commercial Court in England and Wales, SCP defended claims saying principle of private international law protected them – Were claims which sought to enforce the tax law of foreign state, whether directly or indirectly, inadmissible before courts in this jurisdiction – Principle known as revenue rule –

Commercial Court considered as preliminary issue whether revenue rule applied – Said SKAT’s claims fell within rule scope and therefore inadmissible – SKAT appealed to CA –

CA reversed Commercial Court decision – Said SKAT’s claims did not fall within revenue rule scope – Said money SKAT sought not unpaid tax or tax at all, but rather money which SKAT alleged taken by fraud – SCP appealed to SC –

SC unanimously dismissed appeal – Said revenue rule did not apply to SKAT’s claims – Meant SKAT’s claims against SCP could proceed to trial in Commercial Court – Accepted SCP’s argument revenue rule only applied to proceedings where unsatisfied demand for tax which foreign tax authority sought to recover directly or indirectly – Appeal dismissed.