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Case Summaries 2011

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As at 21 December 2012

 

Case Number SC 134/2011
Case Name

Courtney Pauline Churchward v The Queen

Summary

Criminal – Conviction – Murder – Whether Court of Appeal erred in dismissing appeal against conviction – Whether Court of Appeal took correct approach to directions concerning accused’s youth and possible effect on intent – Availability of diminished responsibility defence.

[2011] NZCA  531  CA 610/2010

Dates Application for leave to appeal dismissed.
5 April 2012.
Hearing
Result

 

Case Number SC 133/2011
Case Name

Pawel Marian Misiuk v The Queen

Summary

Criminal Appeal – New Zealand Bill of Rights Act 1990, s 24(d) – Appeal against the decision of the Court of Appeal, which dismissed the applicant’s appeal against conviction and sentence – Whether there was a breach of the New Zealand Bill of Rights Act 1990, s 24(d) – Applicant claims not to have access to files and computer facilities

[2011] NZCA  663   CA 307/2011

Dates Application for recall dismissed.
5 April 2012.
Hearing Application for leave to appeal  dismissed.
21 June  2012.
Result

 

Case Number SC 132/2011
Case Name

Robert Erwood v Raylee Harley and the Official Assignee

Summary

Civil Appeal – Disbursements – Appeal against a decision of the Court of Appeal which set aside the Registrar’s decision to award $1,000 in disbursements to the applicant – The Court of Appeal declined to recall the decision when presented with new information in relation to this matter – Whether an unrepresented litigant can be awarded costs or disbursements relating to legal advice obtained for the purposes of litigation when the order only covered “usual disbursements” as defined – Whether this matter should be remitted back to the Court of Appeal for full panel hearing.

[2011] NZCA  370   CA 260/2009

Dates Application for leave to appeal dismissed.
24 April 2012.
Hearing
Result

 

Case Number SC 131/2011
Case Name

Josephine Takamore v Denise Clarke  and Nehuata Takamore & Donald Takamore

Summary

Civil Appeal – Customary Law – Approach to determining whether Tūhoe burial custom forms part of the common law – Whether the Court of Appeal majority erred in its analysis of the reasonableness of the Tūhoe custom – Whether the Court of Appeal majority was wrong to hold that the Tūhoe custom was insufficiently certain to form part of the common law – Whether the Court of Appeal majority was correct to hold that Tūhoe custom was a relevant cultural consideration for an executor or executrix where one or more of the whānau pani of the deceased is Tūhoe and the deceased is Tūhoe under Tūhoe custom – Whether the Court of Appeal minority judgment raised important issues about the approach to findings of fact in the High Court

[2011] NZCA  587   CA 525/2009

Dates

A The application for leave to appeal is granted.

B The approved grounds of appeal are whether the Court of Appeal was correct to hold that New Zealand law entitled the executrix to determine disposal of the body of the deceased and whether it was correct to hold that the executrix is entitled to take possession of the body of the deceased notwithstanding its burial.

28 March 2012.

Hearing

17 and 18 July 2012.

Elias CJ, Tipping, McGrath, William Young, Blanchard JJ.

Decision Reserved.

Result

A The appeal is dismissed.

B  The first respondent is entitled to proceed under the exhumation licence to have Mr Takamore reburied in a place of her choosing.

C  The matter is remitted back to the High Court in case any consequential orders are necessary.

D  Costs are reserved. 

18 December 2012.

 

Case Number SC 130/2011
Case Name

Jacqueline Elaine Wihongi v The Queen

Summary

Criminal Appeal – Sentencing – Sentencing Act 2002, s 102 – appeal against the Court of Appeal’s decision to raise the Applicant’s sentence from 8 years to 12 years – whether the Court of Appeal erred in its assessment of the Applicant’s future risk of violent offending – whether the Court of Appeal erred in finding that a longer finite sentence would increase the level of public safety – whether the Court of Appeal erred in its consideration of the Applicant’s mental impairments – whether the Court of Appeal erred in its consideration of the Applicant’s favourable qualities – whether the application should be heard even though it was filed out of time.

[2011] NZCA  592   CA 641/2010

Dates Application for leave to appeal dismissed.
6 March 2012.
Hearing
Result

 

Case Number SC 129/2011
Case Name

Barry John Hart v Standards Committee of the New Zealand Law Society and the Lawyers and Conveyances Disciplinary Tribunal.

Summary

Civil – Name suppression – Legal professional conduct – Lawyers and Conveyancers Act 2006 – Whether High Court and Court of Appeal, in declining to suppress applicant’s name, erred in their approaches to principles applicable to name suppression in context of disciplinary charges under Lawyers and Conveyancers Act – Significance of nature of charges against applicant – Weight to be given to inaccurate media reports of charges – Whether Court of Appeal’s orders sufficiently protect applicant – Effect of applicant’s high public profile and associated prejudicial effects arising from publication. 

[2011] NZCA   671   CA 839/2011

Dates The application for leave to appeal is dismissed.
In place of the order made by McGrath J on 21 December 2011 in relation to the searching of court files, we order that the Supreme Court file in relation to the application not be searched without the permission of a Judge.
13 February 2012.
Hearing
Result

 

Case Number SC 128/2011
Case Name

Ricardo Aryan v The Queen

Summary

Criminal Appeal – Appeal against the decision of the Court of Appeal, which dismissed the applicant’s appeal against conviction – Whether conviction should be appealed because of fresh evidence

[2010] NZCA 57  CA 614/2009

Dates Application for leave to appeal dismissed.
13 March 2012.
Hearing
Result

 

Case Number SC 127/2011
Case Name

Xing Hua Du v Ming Gu

Summary

Civil Appeal – Joint Venture Agreement – The applicant and respondent were parties to a joint venture agreement, the terms of which were breached by the respondent, but the respondent raised a number of positive defences – The Court of Appeal held that the respondent was allowed to avoid the joint agreement because of the applicant’s failure to comply with ss 63 and 64 of the Real Estate Agents Act 1976 – Whether the Court of Appeal erred in finding that the termination of the agency agreement between the applicant and a real estate agency required, by way of reasonable notice, not less than 14 days notice – Whether the Court of Appeal erred in finding that, because the agency agreement was still afoot, and because ss 63 and 64 of the Real Estate Agents Act were not complied with, the joint venture agreement was voidable – Whether the Court of Appeal erred in holding that the respondent’s cancellation of the joint venture agreement was a valid exercise of her rights under s 63(3) of the Real Estate Agents Act.

[2011] NZCA 577  CA 867/2010

Dates Application for leave to appeal dismissed. Costs $2,500 to the respondent.
6 March 2012.
Hearing
Result

 

Case Number SC 126/2011
Case Name

Ross Nathan v The Queen

Summary

Criminal Appeal – Attempt to adduce fresh evidence – Whether evidence of the complainant allegedly being in a sexual relationship at the time that the offence was committed was relevant to the complainant’s reliability and credibility – Whether failure to adduce that evidence resulted in a substantial miscarriage of justice.

[2011] NZCA 578  CA 318/2011

Dates
Hearing
Result

 

Case Number SC 125/2011
Case Name

Mark Terence Pearson v The Queen

Summary

Criminal Appeal – Section 76 of the Evidence Act 2006 – Illegitimate reasoning by jury – That the Court of Appeal was wrong to decline to interview one of the jury members at the appellant’s trial – That the application should be heard out of time. 

[2011] NZCA 572  CA 411/2011

Dates Application for leave to appeal dismissed.
27 April 2012.
Hearing
Result

 

Case Number SC 124/2011
Case Name

Service and Food Workers Union Nga Ringa Tota Inc and others v OCS Limited

Summary

Employment – Employment Relations Act 2000, ss 69N(3) and 69O – Relationship between the Act and the parties’ (collective) employment agreement – Express exclusion of monetary compensation for redundancy by terms of agreement, with alternative forms of entitlement also provided for – Whether the Court of Appeal erred in holding that appellants are not entitled to seek (bargain for) appropriate redundancy entitlements under the Act  

[2011] NZCA 597  CA 865/2010

Dates

Leave to appeal is granted.

The approved questions are whether, and if so to what extent, the multi-employer collective employment agreement precludes the second appellants from bargaining for redundancy entitlements under s 69N of the Employment Relations Act 2000.

28 February 2012.

Hearing

26 July 2012.
Tipping, McGrath, William Young, Gault, Blanchard JJ.

Decision reserved.

Result

The appeal is allowed.

The orders made by the Court of Appeal are set aside.

The orders made by the Employment Court are reinstated. 

9 August 2012.

 

Case Number SC 123/2011
Case Name

MFT Properties  Limited v Country Club Apartments Limited

Summary

Civil Appeal – Leases – Contracts Enforcement Act 1956 – Whether Court of Appeal erred in finding a binding oral agreement to vary rental rate rather than indulgence revocable at will by lessor – Whether oral agreement constituted sufficient memorandum for purposes or Contracts Enforcement Act or whether alternatively doctrine of part performance could apply to agreement – Whether Court of Appeal erred in factual findings in respect of accommodation charge set-off and penalty interest liability.

[2011] NZCA 560  CA 244/2011

Dates Application for leave to appeal dismissed, costs of $2,500 to the respondent.
29 February 2012.
Hearing
Result

 

Case Number SC 122/2011
Case Name

Station Properties Limited (in liquidation) v Shane Arthur Paget

Summary

[2011] NZCA 570  CA 36/2010

Dates Notice of abandonment being lodged, the appeal for leave to appeal is deemed to be dismissed.
13 February 2012
Hearing
Result

 

Case Number SC 121/2011
Case Name

Christine Mary Herron and another v Westpac New Zealand Limited

Summary

Civil Appeal – Evidence – Whether the Court of Appeal erred in its assessment of a witness’s credibility – Whether the Court of Appeal erred in its treatment of evidence that was allegedly of a hearsay character – Whether the respondent breached any of its obligations in relation to putting relevant evidence (allegedly in its possession) before the Court.

[2011] NZCA 544  CA 505/2010

Dates Application for leave to appeal dismissed with costs $2,500 to  the respondent.
17 February 2012.
Hearing
Result

 

Case Number SC 120/2011
Case Name

Michael Andrew Keith Hastie  v The Queen

Summary

Criminal Appeal – Whether the trial Judge should have given a Papadopoulos direction.

[2011] NZCA 498   CA 153/2011

Dates

The application for leave to appeal is granted.

The approved grounds of appeal are whether the directions given to the jury before it delivered its verdicts were appropriate and, if not, whether this gave rise to a substantial miscarriage of justice?

9 February 2012.

Hearing 7 June 2012.
Elias CJ, Tipping, McGrath, William Young, Chambers JJ
Decision reserved.




Result Appeal dismissed.
23 July 2012.

 

Case Number SC 119/2011  
Case Name

Ricky Tamati v The Queen

Summary

Criminal – Evidence Act 2006 – jury direction – appeal against conviction on four representative charges of sexual violation and one of indecent assault – primary focus at trial had been the reliability of the evidence of the complainant who had suffered brain injury at a young age – whether the trial Judge erred in failing to warn the jury, as is permitted under s 122(1) of the Act if of the opinion that evidence admitted “may nevertheless be unreliable”, of the need for caution in deciding whether to accept the evidence of the complainant and the weight to be given to that evidence – if so, whether the failure to give a warning to the jury led to a miscarriage of justice

[2010] NZCA 49   CA 440/2009

Dates Application for leave to appeal dismissed.
13 December 2011.
Hearing
Result  

 

Case Number SC 118/2011  
Case Name

M v  Minister of Immigration

Summary

Civil – Striking out of judicial review application.

Civ 2011 404 2913

Dates Application for leave to appeal dismissed, with costs $2,500 to the respondent.
13 December 2011.
Hearing
Result  

 

Case Number SC 117/2011  
Case Name

W v The Queen

Summary

Criminal Appeal – Counsel error – Whether the Court of Appeal erred in concluding that trial counsel’s advice to the applicant not to give or call evidence was reasonably open to him in the circumstances – Whether or not the Court of Appeal adequately addressed the applicant’s claim that acceptance of trial counsel’s advice not to give evidence was based on a fundamental misunderstanding of that part of his advice which was intended to inform the applicant of the advantages of giving evidence – Whether the Court of Appeal omitted or misstated evidence supporting the applicant’s allegations on appeal that the trial counsel gave advice in a manner that usurped the applicant’s right to make elections about evidence, impacting on the credibility of the decisions made by the Court of Appeal – Whether the Court of Appeal’s decision that the result of the applicant’s trial could not possibly have been affected if the applicant or any other of the applicant’s witnesses had given evidence was available to it on the evidence.

[2011] NZCA 529   CA 702/2010

Dates Application for leave to appeal dismissed.
13 February 2012.
Hearing
Result  

 

Case Number SC 116/2011  
Case Name

Robert Frank Terry v Department of Correction 

Summary

Criminal – direct appeal from High Court.

[2011] NZCA 519   CA 217/2010

Dates Application for leave to appeal dismissed.
14 December 2011.
Hearing
Result  

 

Case Number SC 115/2011  
Case Name

Shelley Anne Francis Mitchell v Trustees Executors Limited

Summary

Civil Appeal – Summary judgment against guarantor of defaulted loan – That the respondent breached its duty to act fairly in relation to the sale and letting of the mortgaged property, in particular through its non-compliance with the Property Law Act 2007, and the appellant therefore has a defence to the action – That this conduct entitles the appellant to re-open the loan contract for oppression.

[2011] NZCA 519   CA 217/2010

Dates Notice of abandonment being lodged, the appeal is deemed to be dismissed.
1 March 2012.
Hearing
Result  

 

Case Number SC 114/2011  
Case Name

James Joseph Kapa v The Queen

Summary

[2011] NZCA 504 CA 407/2010 CA 572/2010

Dates

Leave to appeal is granted in respect of the sentence of reparation only.

The approved ground is whether the sentence of reparation complied with the requirements of s 32 of the Sentencing Act 2002.

7 February 2012.

Hearing 7 August 2012.
Elias CJ, McGrath, William Young, Chambers, Glazebrook J.
Decision reserved.
Result

Appeal is allowed. The sentence of reparation is quashed.

20 December 2012.

 

Case Number SC 113/2011  
Case Name

Ronald van Wakeren v The Queen

Summary

Criminal Appeal – Bill of Rights Act – Right to justice – Applicant convicted in District Court of 70+ offences – Court of Appeal allowed in part appeals against conviction and sentence – Whether Court of Appeal failed to properly consider certain parts of appeal submissions – Whether Court of Appeal failed to give sufficient and proper reasons –Whether sentences manifestly excessive individually and in totality – Whether minimum period of imprisonment excessive.

[2011] NZCA 503 CA 58/2008 CA 716/2009 CA 398/2010

Dates Application for leave to appeal dismissed.
5 December 2011.
Hearing
Result  

 

Case Number SC 112/2011  
Case Name

Wendy Maree Egen v The Queen

Summary

Criminal Appeal – Miscarriage of justice – Whether the appellant had a fair trial in circumstances where counsel discouraged her from testifying during her trial by jury.  

[2011] NZCA 372  CA 861/2010

Dates Application for leave to appeal dismissed.
16 December 2011
Hearing
Result  

 

Case Number SC 111/2011  
Case Name

Emily-Jade Brazendale, Nicki Eva Brazendale, Michelle Gwendolyn Brazendale v The Queen

Summary

Criminal Appeal – Sentencing – Criminal Proceeds (Recovery) Act 2009 and Sentencing Act 2002 – Forfeiture Orders – Whether the Court of Appeal erred in finding that the making of an instrument forfeiture order would not cause undue hardship to the applicant – Whether the Court of Appeal erred in holding that an instrument forfeiture order was not a disproportionate response to the offending in this case – Whether the Court of Appeal erred in its assessment of whether an instrument forfeiture order would cause undue hardship to the applicant’s daughters – Whether the Court of Appeal was wrong to conclude that there was no basis on which to make a partial forfeiture order.

[2011] NZCA 494  CA 646/2010

Dates Application for leave to appeal dismissed.
5 December 2011.
Hearing
Result  

 

Case Number SC 110/2011  
Case Name

Lawrence Paul Wharton v The Queen

Summary

Criminal – Jury verdict – That the trial Judge did not comply with s 29C of the Juries Act 1981 when taking a majority verdict – That evidence of the jury deliberations ought to be put before the Court under s 76(3) of the Evidence Act 2006.

[2011] NZCA 476  CA 614/2010

Dates Application for leave to appeal dismissed.
12 December 2011.
Hearing
Result  

 

Case Number SC 109/2011  
Case Name

Anthony Hugh Close v The Queen

Summary

Criminal – Sentence – Sentencing Guidelines – Whether or not the present guideline judgment in respect of class B drugs is correct, given that the drug in issue there was methamphetamine – Whether there ought to be gradations in sentencing guidelines between different drugs in the same general category – Whether sentence imposed manifestly excessive. 

[2011] NZCA 434  CA 729/2010

Dates Application for leave to appeal dismissed.
16 December 2011
Hearing
Result  

 

Case Number SC 108/2011  
Case Name

John Kenneth Slavich v The Queen

Summary

Criminal Appeal – Sentencing – Applicant convicted of six dishonesty offences and ordered to pay $60,000 reparation – Applicant sentenced to term of imprisonment under s 19D Crimes Act 1961 in substitution when reparation not paid – Whether Court of Appeal erred in fact and law in finding applicant able through family trust or family members to pay outstanding reparation.

[2011] NZCA 457  CA 669/2010

Dates Application for leave to appeal dismissed.
17 November 2011.
Hearing
Result  

 

Case Number SC 107/2011  
Case Name

Econicorp Holdings Limited  v Minister of Education

Summary

Civil Appeal – Duty of care – The applicant, Enconicorp, trading as Ahead Buildings, built a school hall pursuant to a contract it had with the school’s Board of Trustees – Ahead Buildings engaged LHT Ltd, structural engineers, to assist with the design and specifications –  Three or four years after the hall was completed it became apparent that it had serious defects and was unusable – The Board issued proceedings against Ahead Buildings in tort and contract, and against LHT Ltd in tort, for loss suffered as a result of the defects – The land and buildings that comprise the school are owned by the Crown through the Ministry of Education and the Ministry provided around 70 per cent of the funding for the hall’s construction – The Minister of Education issued proceedings against Ahead Buildings and LHT Ltd for loss suffered as a result of its breach of the duty of care owed to the Ministry – Ahead Buildings applied to the High Court to strike out the causes of action against it – The High Court struck out the Board’s contractual claim and the Minister’s claim in tort – The Court of Appeal overturned the decision of the High Court to strike out the Minister’s claim against the applicant – Whether the applicant ought to face a claim if that claim could not be otherwise brought – Whether the Minister should be allowed to continue her claim when it will substantially later the nature and substance of the proceeding against the applicant – Whether the Court of Appeal erred in not taking account of the fact that the claim of the Board is still subject to challenge – Whether the Court of Appeal erred in allowing the appeal when the Board entered into a settlement agreement with the applicant for repair of the hall, which relates to the question of loss suffered.
[2011] NZCA 450  CA 160/2011

Dates

Application for leave to appeal dismissed.
Costs to the respondent $2,500.

5 December 2011.

Hearing
Result  

 

Case Number SC 106/2011  
Case Name

G v The Queen

Summary

Criminal Appeal – Evidence – Whether admission of prior consistent statement evidence in re-examination resulted in undue emphasis on that evidence and unfairness – Whether s 35 of the Evidence Act 2006 requires that prior consistent statement evidence should in this case have been given by the complainant only – Whether the jury should have been directed that prior consistent statement evidence given by a witness could not affect the jury’s separate assessments of credibility and veracity – Severing of counts – Whether a count alleging more minor indecent offending against a second complainant should have been severed because of the danger of illegitimate propensity reasoning.

[2011] NZCA 395  CA 883/2010

Dates Application for leave to appeal is dismissed.
1 December 2011.
Hearing
Result  

 

Case Number SC 105/2011  
Case Name

FCM v Refugee Status Appeals Authority and Chief Executive of the Department of Labour

Summary

Civil – declining to review amount of security for costs fixed by Court of Appeal registrar.

[2011] NZCA 441  CA 653/2010

Dates Application for leave to appeal is dismissed.
24 November 2011.
Hearing
Result  

 

Case Number SC 104/2011  
Case Name

Eric Neil Smail v The Queen

Summary

Criminal – Murder – Fair Trial – Whether Court of Appeal correct to dismiss appeal against conviction – Whether it was possible for appellant to have obtained a fair trial in Christchurch given the particular circumstances of the case. (There had already been a pre-trial decision to refuse a change of venue application and an unsuccessful appeal against this).  

[2010] NZCA 403  CA 561/2010

Dates Application for leave to appeal is dismissed.
24 November 2011.
Hearing
Result  

 

Case Number SC 103/2011  
Case Name

Vincent Ross Siemer v Michael Peter Stiassney and Korda Mentha

Summary

[Civil Appeal – Injunctions – Strike-out – Applicant applied to set aside, rescind and/or vary injunction – Whether Court of Appeal had jurisdiction to strike out applicant’s appeal as vexatious and an abuse of process without first hearing from the parties.
[2011] NZCA 466   CA 262/2011

Dates

The application for leave to appeal is dismissed with costs of $2,500 to the respondents.

3 October 2011.

Hearing
Result  

 

Case Number SC 102/2011  
Case Name

Luaiava Fagalilo v Seneti Time

Summary

Civil Appeal – Trusts – The Green Valley Church Assembly formed in 1984 and was formally affiliated with Assemblies of God in New Zealand Incorporated (AOGNZ) – The church set up a trust to own their church property in 1985 – The Trust Deed specified that trustees could not act inconsistently with the AOGNZ Constitution and Rules – The Constitution stated that no member church could also hold a certificate of membership with another organised body with a distinct constitution – A schism in the church occurred in 2005 when the Samoan Assemblies of God New Zealand (SAOG), which some church members were affiliated with, incorporated – Trustees who were affiliated with the SAOG were not acting in accordance with the Trust Deed – Appeal against the decision of the Court of Appeal requiring an election by the members of the church affiliated with the AOGNZ of persons to be nominated as trustees – Whether the Court of Appeal erred by effectively giving full control of church property to members affiliated with the AOGNZ – Whether the Court of Appeal erred in not obliging the respondent to enter into dialogue aimed at settlement of the parties’ differences –  Whether the Court of Appeal erred by failing to consider the existence of constructive trusts whereby the Trust Board holds its assets in trust for the people who paid for them or otherwise contributed to them since acquisition. 

[2010] NZCA 402   CA 191/2010

Dates The application for leave to appeal is dismissed with costs payable by the applicant to the respondent of $2,500.
16 April 2012.
Hearing
Result  

 

Case Number SC 101/2011  
Case Name

SNC v The Queen

Summary

Criminal Appeal – Evidence Act 2006 – Admissibility of evidence “improperly obtained” by police pursuant to a warrantless search – whether the Court of Appeal erred in upholding the District Court Judge’s decision to admit the evidence in exercise of the balancing test required by subs 30(2) of the Act – whether the Court of Appeal failed to give sufficient weight to and/or erred in its assessment of the listed factors in paras 30(3)(a), (b) and (d) of the Act – whether the Court of Appeal gave too much weight to the importance of the evidence to the case of the prosecution
[2011] NZCA 402   CA 191/2010

Dates Application for leave to appeal dismissed.
18 October 2011.
Hearing
Result  

 

Case Number SC 100/2011  
Case Name

Llewellyn William Burchell v The Queen

Summary

Criminal – application for leave to appeal out of time

[2010] NZCA 311  CA 326/2009

Dates Application for leave to appeal out of time  is dismissed.
24 November 2011.
Hearing
Result  

 

Case Number SC 99/2011  
Case Name

Jay Maui Wallace v The Queen

Summary

Criminal – Appeal against conviction and sentence – Whether trial was conducted unfairly resulting in a miscarriage of justice – Whether the High Court had jurisdiction to convict – Whether bail should be granted pending determination of the appeal.  

[2011] NZCA 424  CA 471/2011

Dates Application for leave to appeal dismissed.
18 October 2011.
Hearing
Result  

 

Case Number SC 98/2011  
Case Name

W v The Queen

Summary

Criminal Appeal – Sexual Offences – Evidence Act 2006 – Appeal against conviction  – Whether Court of Appeal wrong to uphold admission at trial of expert evidence relating to “counterintuitive” evidence given by child abuse victims– Whether expert evidence met “substantially helpful” test under s 25 Evidence Act – Whether evidence used in an inappropriately diagnostic way at trial – Whether linking by prosecutor in closing address of expert evidence with circumstances of particular complainant led to unfair trial.

[2011] NZCA 191  CA 51/2009

Dates Application for leave to appeal dismissed.
8 November 2011.
Hearing
Result  

 

Case Number SC 97/2011  
Case Name

R B Road Limited v Malcolm Alexander Johnstone and others

Summary

Civil Appeal – Contract – Conditional agreement for sale and purchase of land – Agreement conditional upon the vendor and purchaser, both acting reasonably, being satisfied with the terms and conditions attaching to subdivision consent issued by the Council – Whether the Court of Appeal erred in declining the appellant’s application for a summary judgment and remitting the proceeding back to the High Court for trial on the basis that there is a conflict of evidence as to whether the terms and conditions attaching to the subdivision consent could have been reasonably anticipated – Whether the Court of Appeal erred by not substantively addressing the appellant’s alternative argument that, even if the terms and conditions attaching to the subdivision consent could not have been reasonably anticipated, they imposed no burden on the respondents so they could not avoid the agreement on this basis.

[2011] NZCA 393  CA 493/2010

Dates
Hearing
Result  

 

Case Number SC 96/2011  
Case Name

Damien Grant and Steven Khov v Commissioner of Inland Revenue

Summary

[2011] NZCA 373  CA 368/2010 CA 285/2010

Dates

Application for leave to appeal dismissed with costs of $2,500 to the respondent.

30 November 2011.

Hearing
Result  

 

Case Number SC 95/2011  
Case Name

Llewellyn Burchell v The Queen

Summary

Criminal – Threatening to kill – Counsel incompetence – Whether trial counsel did not follow the appellant’s instruction, and failed to lead available evidence – Whether evidence was wrongfully admitted – Whether the jury’s verdict was unreasonable.

[2010] NZCA 313  CA 162/2008

Dates Application for leave to appeal out of time  is dismissed.
24 November 2011.
Hearing
Result  

 

Case Number SC 94/2011  
Case Name

Rodney Mark Gibson and Habode IP Limited v Richard John Curtis and Curtis Holdings Limited

Summary

Civil – Existence of Joint Venture – Jurisdiction – Judicature Act 1908, s66 – Costs – Whether Court of Appeal exceeded its jurisdiction by hearing argument not put in issue in High Court as to existence of joint venture – Whether Court of Appeal made factual findings inconsistent with evidence presented, particularly as to the Australian company Habode Holdings Ltd – Whether Court of Appeal made factual findings for which there was no evidential basis – Whether Court of Appeal misapplied the test for determining imposition of joint venture obligations – Whether correct approach taken to costs. 

[2011] NZCA 373  CA 368/2010 CA 285/2010

Dates Application for leave to appeal declined. Costs to respondent $2,500.
Hearing
Result  

 

Case Number SC 93/2011  
Case Name

Haiden Davis v The Queen

Summary

Criminal Appeal – Murder – Evidence Act 2006 – Appeal against conviction – Whether trial Judge correct in the circumstances to give “lies direction” to jury under s 124 Evidence Act – Whether trial judge correct in the circumstances to give condensed version of model jury direction on unanimity (“Papadopoulos direction”).

[2011] NZCA 380 CA 767/2010

Dates Application for leave to appeal dismissed.
3 November 2011.
Hearing
Result  

 

Case Number SC 92/2011  
Case Name

Robert Michael Symons, Gregory John Symons and others v Wiltshire Investments Limited

Summary

Civil Appeal – Appeal against Court of Appeal upholding a summary decision of the High Court – Whether the Court of Appeal erred in finding that the refusal by the respondents to produce critical relevant documents that are in the respondent’s sole possession did not constitute a failure by the respondent to discharge the onus on a summary judgment application to establish that the appellants had no arguable defence – Whether the use of residual discretion to refuse an application for summary judgment under r 12.2 of the High Court Rules was justified – Whether the Court of Appeal erred in holding that the confidentiality can be a valid ground for refusal to disclose relevant documentation to the Court and the defendants in a summary judgment application. 

[2011] NZCA 397 CA 534/2010

Dates

Leave to appeal is granted in relation to the indebtedness associated with Opus Fintek Ltd (in receivership).

The approved question is whether the Associate Judge ought to have entered summary judgment despite the non disclosure of the 2009 settlement agreement between Opus Fintek Ltd and Hats Holdings Ltd.

17 November 2011

Hearing 17 April 2012.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ>
Decision reserved.
Result

A Leave to appeal is extended to cover the indebtedness of Fibroin Initiatives Ltd.

B The appeal is allowed with the result that the entry of summary judgment is set aside but with leave reserved to the respondent to seek summary judgment once it has disclosed the settlement agreement to the appellants.

C The awards of costs in the High Court and Court of Appeal are set aside.

9 August 2012.

 

17 October 2012:  Judgment recalled and reissued. 

A Leave to appeal is extended to cover the indebtedness of Fibroin Initiatives Ltd.

B The appeal is allowed with the result that the entry of summary judgment is set aside.

C Upon disclosure of the settlement agreement to the appellants, the application for summary judgment is, at the option of the respondent, to be reheard in the High Court with the appellants at liberty to resist the claim (and, if they think appropriate, produce additional evidence) on the basis of (i) defences associated with, or arising out of the disclosure of the settlement agreement and (ii), subject to the leave of the High Court being obtained, on any other basis. The appellants are also at liberty to make such interlocutory applications to the High Court as they see fit.

D The awards of costs in the High Court and Court of Appeal are set aside.

 

Case Number SC 91/2011  
Case Name

Specialized Bicycle Components Inc v Sheppard Industries Ltd and Avanti Bicycle Company Ltd

Summary

Civil Appeal – Evidence – Scope of privilege for settlement negotiations or mediation – Whether the Court of Appeal erred in its interpretation and application of s 57 of the Evidence Act 2006 – Whether the Court of Appeal gave proper effect to the mediation agreement and confidentiality agreement between the parties – Whether the Court of Appeal erred in holding that the respondents could adduce particular affidavit evidence and evidence of what occurred during the course of mediation.

[2011] NZCA 346 CA 805/2010

Dates

Leave to appeal is granted.

The approved ground is whether the respondents are precluded by the terms of the mediation agreement and/or the confidentiality agreement from adducing the disputed evidence.

12 October 2011.

Hearing 28 February 2012
Result Notice of abandonment being lodged, the appeal  is deemed to be dismissed.

 

Case Number SC 90/2011  
Case Name

Richard Horton McKay v The Queen

Summary

Criminal – Fitness to stand trial – Whether the District Court’s deviation from the procedure set out in Part 2, Subpart 1 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 resulted in a miscarriage of justice or rendered the trial a nullity under s 385(1) of the Crimes Act 1961 – Extension of time to apply for leave to appeal sought.

[2009] NZCA 378 CA 475/2010

Dates Application for leave to appeal dismissed.
6 October 2011.
Hearing
Result  

 

Case Number SC 89/2011  
Case Name

Shannon Ian Clifford v The Queen

Summary

Criminal – Sentence – Increase of sentence – Sentencing guideline judgments – Sentencing Act 2002, s 9(3) – Whether Court of Appeal, in assessing appellant’s sentence, appropriately increased it from 5 to 7 years after considering courts’ approach to sentencing in light of the Supreme Court’s Hessell decision – Whether Court of Appeal in affirming s 9(3)’s prohibition on treating intoxication as mitigating has effectively held that lack of mens rea, if induced by voluntary consumption of intoxicants, can never be a mitigating factor; and whether this is correct in principle – Status of lack of mens rea partially induced by intoxicants – Status of guideline judgments in the wake of Supreme Court’s decision in Hessell  

[2011] NZCA 360 CA 88/2011

Dates Application for leave to appeal dismissed.
18 October 2011
Hearing
Result  

 

Case Number SC 88/2011  
Case Name

Pawel Marian Misiuk v Chief Executive of the Department of Corrections

Summary

Civil Appeal - Habeas Corpus - Costs - Court of Appeal dismissed appeal against High Court's refusal of writ of habeas corpus on the grounds that applicant was lawfully detained pursuant to warrants of commitment following conviction and sentencing on multiple charges in the District Court - Whether writ of habeas corpus should be granted - Whether Court of Appeal correct to award costs for unmeritorious habeas corpus application (one in series of such applications) - Whether delay between filing of notice of appeal and hearing before Court of Appeal unreasonable. 

[2011] NZCA 318 CA 416/2011

Dates Application for leave to appeal dismissed.  Costs reserved.
10 October 2011.
Hearing
Result  

 

Case Number SC 87/2011  
Case Name

Gary Francis Haddon v GE Custodians and  Barbara Gale Haddon.

Summary

Civil Appeal – Credit Contracts and Consumer Finance Act 2003 – Appeal against the Court of Appeal’s decision to uphold a summary judgment of the High Court – Whether a credit contract is a “consumer credit contract” where the appellants were both debtors in their personal capacities and as trustees of a family trust – Whether it is sufficient for a lender to “largely” comply with the mandatory disclosure requirements of s 17 – Whether the lender could contract out of the Act by defining the contract as a “credit contract” – Whether the Court of Appeal erred in upholding the summary judgment where the appellants did not have available to them much of the factual information relating to the load transaction, where the loan purpose on the loan documents differs from that stated on the loan application, where the lender was put on inquiry as to whether the borrowers could service the loan and where parties were being advised by the same lawyer increasing the likelihood of conflict of interest and undue influence. 

[2011] NZCA 335    CA 475/2010

Dates Application for leave to appeal dismissed. Costs to first respondent $2,500.00
Hearing
Result  

 

Case Number SC 86/2011  
Case Name

Rodney John Humphries v Ewan Robert Carr

Summary

Civil Appeal – Contract – Application of principle that a party should not be entitled to take advantage of his or her own wrong – Whether respondent should have been precluded from enforcing judgment for specific performance following his breach of a settlement agreement.

[2011] NZCA 314    CA 565/2010

Dates Application for leave to appeal dismissed.
Costs $2,500 to the respondent.
28 September 2011.
Hearing
Result  

 

Case Number SC 85/2011  
Case Name

Otehei Bay Holdings Limited and Explore NZ (2004) Limited v Fuller Bay of Islands Limited, Intercity Group (NZ) Limited and Minister of Conservation

Summary

Civil – Reserves and Domains Act 1953 – Reserves Act 1977 – Conservation Act 1987, Part 3B – That the appellants’ lease was not brought within the jurisdiction of the Reserves and Domains Act 1953 when the Crown acquired Urupukapuka Island (where the appellant’s leasehold is situated) as a recreation reserve – That s 59A of the Reserves Act 1977 does not apply to the appellants’ lease, and no concession under Part 3B of the Conservation Act 1987 is required to render the appellant’s lease lawful.

[2011] NZCA 300    CA 57/2010, CA 684/2010

Dates

A The application for leave to appeal is granted.
B The approved grounds of appeal are:
(i) Was the lease at Otehei Bay brought within the jurisdiction of the Reserves and Domains Act 1953 upon the Crown’s acquisition of Urupukapuka Island as a recreation reserve in 1970?
(ii) Does s 59A of the Reserves Act 1977, as inserted by the Reserves Amendment Act 1996, apply to the lease at Otehei Bay?
C The approved grounds are intended to comprehend the sub issues referred to in the submissions of the third respondent dated 15 September, namely:
(i) Is the lease a perpetually renewable lease which has been extended since its creation, or is it one where a new lease has been entered into each time it has been extended or renewed?
(ii) What is the effect of the 10 to 15 year period where the lease may not have been renewed by the parties?

29 September 2011.

Hearing

Notice of abandonment being filed, the appeal  is deemed to be dismissed.

26 July 2012.

Result  

 

Case Number SC 84/2011  
Case Name

Raewyn Marie Scott v Lindy Jane Ellison

Summary

Civil – Agreement for Sale and Purchase of Land – Contractual interpretation – Standard form vendor warranty – Warranty that where vendor has done/permitted works on property requiring permits/consents these have been obtained (cl 6.2(5)) – Whether Court of Appeal correct in dismissing appeal against refusal to grant summary judgment – Appellant and co-owner made alterations to property without obtaining requisite permits and certificates – Appellant, then sole owner, created trust, transferred property to trustees, then sold property describing vendor as appellant and trustees – Whether appellant’s status as legal owner changed – Whether warranty applies to works done/permitted by appellant prior to transfer to trustees 
[2011] NZCA 302    CA 660/2010

Dates Application for leave to appeal dismissed. Costs $2,500 to the respondent.
31 August 2011.
Hearing
Result  

 

Case Number SC 83/2011  
Case Name

Pawel Marian Misiuk v The Queen

Summary

Criminal Appeal – Bail Act 2000 – Defendant convicted on various charges and sentenced to imprisonment of four years and one month – Bail denied by High Court and Court of Appeal pending appeal against conviction and sentence – Whether applicant should be granted bail – Whether Court of Appeal Judge should not have sat on bail hearing because of misconduct alleged by applicant in related hearing – Whether Court of Appeal Judge failed to consider relevant evidence.

[2011] NZCA 323    CA 397/2011

Dates Application for leave to appeal dismissed.
13 September  2011.
Hearing
Result  

 

Case Number SC 82/2011  
Case Name

B v B

Summary

Civil Appeal – Properties Relationship Act 1976, ss 10(1)(a) and (c)  – The applicant obtained property by suing his father’s estate to perfect his entitlement under his father’s will, the trustees of two trusts of which he was a beneficiary, and his mother and two sisters under the Family Protection Act 1955 - Whether this property, acquired by litigation paid for by relationship property money, is his personal property under ss 10(1)(a) and (c) of the Act or relationship property.  

[2011] NZCA 292   CA 161/2010

Dates

The application for leave to appeal is dismissed with costs of $2,500 to the respondent.

29 September 2011.

Hearing
Result  

 

Case Number SC 81/2011  
Case Name

Clayton Robert Weatherston v The Queen

Summary

Criminal – Appeal against conviction for murder – Impact of media statements on fair trial rights of applicant – whether the applicant’s trial was rendered unfair as a consequence of media statements made during the trial – whether the directions of the trial Judge to the jury were sufficient to overcome the prejudice resulting from the media coverage – whether the Court of Appeal erred in requiring the applicant to demonstrate that a juror may have seen or read the coverage in issue – whether the Court of Appeal erred in its assessment of the trial Judge’s post-trial conference address – Evidence Act 2006, s 92 – whether the Crown was obliged to put to the applicant on cross-examination the divergence of his evidence of events by comparison with that of other witnesses, if it intended to take issue with his version – Evidence Act 2006, ss 37 and 38 – whether the Court of Appeal erred in finding ss 37 and 38 did not apply to the Crown’s cross-examination of the applicant which aimed to establish his propensity to lie – Admission of photographs of victim’s wounds – whether the Court of Appeal erred in admitting photographs of stab wounds when the purpose for which that evidence was tendered could have been met by computer graphic reconstructions and diagrams

[2011] NZCA 276   CA 648/2009

Dates Application for leave to appeal dismissed.
13 September 2011
Hearing
Result  

 

Case Number SC 80/2011  
Case Name

Christopher James Ball v The Queen

Summary

Criminal – Sentencing – Preventive detention – That the sentencing Judge failed to give sufficient weight to psychological and psychiatric reports on the appropriateness of rehabilitative intervention, and its unavailability for – That the sentencing Judge failed to have adequate regard to mitigating factors, including the appellant’s early guilty plea.


[2011] NZCA 43 CA 484/2010

Dates Application for leave to appeal dismissed.
23 August 2011.
Hearing
Result  

 

Case Number SC 79/2011  
Case Name

NV Sumatra Tobacco Trading Company v New Zealand Milk Brands Limited

Summary

Civil – Intellectual Property – Trademark registration – Trade Marks Act 2002 – Whether Court of Appeal erred in not allowing registration of appellant’s mark in relation to tea, cocoa, chocolate, artificial coffee, flavourings for beverages and non-dairy creamer – Whether Court of Appeal misdirected itself on “similar goods” in the context of s 25(1)(b) and (c) of the Trade Marks Act 2002 – Relevance of test in British Sugar Plc v James Robertson & Sons Ltd [1996] RPC 281 (Ch) under the Trade Marks Act 2002. 

[2011] NZCA 264   CA 25/2009

Dates

The application for leave to appeal is dismissed.

The applicant is to pay the respondent costs in the sum of $2,500. 

22 September 2011

Hearing
Result  

 

Case Number SC 78/2011  
Case Name

Paul Robert Devcich and others v AMI Insurance Limited

Summary

Civil Appeal – Insurance – Arson – Applicant claims indemnification against respondent insurer for fire damage and stolen property in respect of deliberately started fire at his Auckland property – Whether Court of Appeal correct to find on civil standard of proof that applicant himself responsible for starting fire – Whether Court of Appeal wrong to find that High Court’s approach did not apply an appropriate standard of proof and imposed too high a standard for respondent to meet – Whether Court of Appeal did not defer appropriately to High Court’s factual findings.

[2011] NZCA 266   CA 522/2010

Dates

Application for leave to appeal dismissed.
Costs $2,500 to the respondent.
30 August 2011.

Hearing
Result  

 

Case Number SC 77/2011  
Case Name

Marcell Sydney Geros v The Queen

Summary

Criminal Appeal – Conviction – Whether defence counsel advice to plead guilty caused a miscarriage of justice – Whether defence counsel prevented relevant evidence being adduced – Sentencing – Whether the sentence was manifestly excessive – Application for bail to prepare the case.

[2011] NZCA 122  CA 321/2010

Dates Application for leave to appeal dismissed.
16 September 2011.
Hearing
Result  

 

Case Number SC 76/2011  
Case Name

Mark Stafford Feary aka All means All v The Queen

Summary

Criminal – Appeal against conviction for threatening to kill or do grievous bodily harm to any person – Miscarriage of justice – That the Court of Appeal fabricated a fact in order to reach its conclusion that the applicant had had every opportunity to advance his appeal

[2011] NZCA 235 CA 568/2010

Dates Application for leave to appeal dismissed.
19 August 2011
Hearing
Result  

 

Case Number SC 75/2011  
Case Name

Robert Frank Terry v Rosalind Megan McLellan and The Public Trustee

Summary

Civil Appeal – Public Trustee powers – That the High Court failed to take into account the fact that directions in previous proceedings between the parties had not been followed – That the High Court made various errors of fact and law.

Civ  2010 4189 123

Dates Application for leave to appeal dismissed.
30 August 2011.
Hearing
Result  

 

Case Number SC 74/2011  
Case Name

David Mitchell v Bluestar Print Group (NZ) Limited

Summary

[2010] NZCA 385   CA 504/2009

Dates Application for leave to appeal dismissed.
22 September 2011.
Hearing
Result  

 

Case Number SC 73/2011  
Case Name

Right to Life New Zealand Inc v The Abortion Supervisory Committee

Summary

Civil Appeal – Contraception, Sterilisation and Abortion Act 1977 – Whether Court of Appeal erred in holding that none of statutory functions or powers of Abortion Supervisory Committee entitle or require Committee to scrutinise or review certifying consultants’ particular clinical decisions or diagnoses after the fact – Whether judicial review requires that applicant identify a decision challenged – Whether Court of Appeal erred in holding counselling services provided under CSA Act were “adequate” – Whether Court of Appeal erred in implicitly finding no State and common law interest in preservation of life of unborn child which ought to influence interpretation of CSA Act.

[2011] NZCA 246   CA 522/2009

Dates A. Leave to appeal is granted. 

B. The approved grounds are: 

(a) Whether the respondent Committee’s functions under ss 14(1)(a), (i) and (k) and 36 of the Contraception, Sterilisation and Abortion Act 1977 empower it to review or scrutinise the decisions of certifying consultants and form its own view about the lawfulness of their decisions to the extent necessary to perform its functions.

(b) If so, whether there is any evidential foundation for the High
Court’s finding that “the approval rates [for abortions] seems remarkably high, bearing in mind that under s 187(A) [of the Crimes Act 1961] the consultants must form a good faith opinion that continuance of the pregnancy would result in serious danger to the mother’s health”.

(c) Whether the High Court has jurisdiction to consider whether
certifying consultants are obeying the “abortion law” (as defined) and, if so, whether there is any evidential foundation for the High Court’s finding that “there is reason to doubt the lawfulness of many abortions authorised by certifying consultants”.

26 August 2011.
Hearing 13 March 2012
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Decision reserved.
Result

The appeal is dismissed.

9 August 2012.

 

Case Number SC 72/2011  
Case Name

F v The Queen

Summary

Criminal Appeal – Evidence – Witness C gave evidence against the appellant at trial and later recanted this in an affidavit – Whether the Court of Appeal erred in fact and law in not considering the recantation credible or cogent and in holding that the evidence of witness C would not have made any difference to the outcome of the trial had the jury heard it.

[2010] NZCA 266   CA 415/2009

Dates Application for leave to appeal dismissed.
8 December 2011.
Hearing
Result  

 

Case Number SC 71/2011  
Case Name

A v The Queen

Summary

Criminal – Appeal against conviction of sexual violation by rape – whether the verdict as returned by the jury was unreasonable or unable to be supported having regard to the evidence – whether the applicant was denied his right to a fair trial pursuant to s 25(a) of the New Zealand Bill of Rights Act 1990, both at trial and on appeal, due to counsel incompetence. 

[2007] NZCA 541   CA 305/2007

Dates

Application for leave to appeal dismissed.

10 August 2011.

Hearing
Result  

 

Case Number SC 70/2011  
Case Name

Keith Allenby v H, Middlemore Hospital of Counties Manukau District Health Board and Accident Compensation Corporation

Summary

The case is clearly one in respect of which leave should be granted and we therefore grant leave.

The approved ground of appeal is whether the Court of Appeal was correct in answering the question before it in the negative.

30 June 2011.

[2011] NZCA 251   CA 586/2010

Dates

The case is clearly one in respect of which leave should be granted and we therefore grant leave.

The approved ground of appeal is whether the Court of Appeal was correct in answering the question before it in the negative.
30 June 2011.

Hearing 16 February 2012.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Decision reserved.
Result

A The appeal is allowed.  The question framed in the High Court is answered “yes”.

B Costs are reserved.

9 May 2012

 

Case Number SC 69/2011  
Case Name

Sovereign Assurance Company Limited v Douglas Norman Scott

Summary

Civil – Insurance – Appeal against Court of Appeal decision holding High Court incorrect to strike out respondent’s proceeding – Whether proceeding out of time – Limitation Act 1950 – Whether Court of Appeal correct in finding it arguable that respondent’s cause of action accrued on or after 28 September 2000 – Distinction between occurrence of insured event and proof of insured event – Whether English authority on limitation and application of limitation statutes to insurance policies relevant in the context of contingency insurance policies for a fixed benefit payable under a critical illness policy in New Zealand – Relevance of respondent’s eventual cancellation of policy – Consistency of Court of Appeal’s decision with principles in Trustees Executors Ltd v Murray [2007] NZSC 27, [2007] 3 NZLR 721. 

[2011] NZCA 214   CA 452/2010

Dates

The application for leave to appeal is dismissed.

The applicant is to pay the respondent costs in the sum of $2,500.

22 September 2011

Hearing
Result  

 

Case Number SC 68/2011  
Case Name

M v The Queen

Summary

Criminal Appeal – Sexual Offences – Evidence Act 2006 – Whether Court of Appeal erred in upholding admission at trial of expert evidence relating to “counterintuitive” evidence given by child abuse victims– Whether expert evidence met “substantially helpful” test under s 25 Evidence Act – Whether linking by prosecutor in closing address of expert evidence with circumstances of particular complainant led to unfair trial where no direction given to jury on proper use of expert evidence.

[2011] NZCA 191   CA 23/2009

Dates Application for leave to appeal dismissed.
8 November 2011.
Hearing
Result  

 

Case Number SC 67/2011  
Case Name

John Anthony Edwards v Wellington Regional Council

Summary

Civil – Costs – Whether the Court of Appeal was right to uphold a decision of the Acting Registrar of that Court fixing security for costs on an appeal from the High Court – Section 14 of the Supreme Court Act 2003 – Appeal directly from the High Court – Whether a decision of the High Court to stay proceedings until a further statement of claim with adequate pleadings is submitted, and the leave of a Judge to file it is granted, is sufficiently exceptional to allow a direct appeal against the judgment to this Court.
[2011] NZCA 260   CA 176/2011

Dates Application for leave to appeal dismissed. Costs $2,5000 to the respondent.
Hearing
Result  

 

Case Number SC 66/2011  
Case Name

Kunal Nand Reddy v The Queen

Summary

Criminal – Evidence of good character – That failure of trial counsel to adduce evidence of the appellant’s good character caused a miscarriage of justice – Trial process – That the trial Judge’s directions were insufficiently clear – That the process by which the jury delivered its verdicts was unsafe – Accessory after the fact – That the Court of Appeal erred in its interpretation of s 71(1) of the Crimes Act 1961.

[2011] NZCA 181   CA 75/2011

Dates Application for leave to appeal dismissed.
11 November 2011.
Hearing
Result  

 

Case Number SC 65/2011  
Case Name

Augustus  Ah-Chong v The Queen

Summary

Criminal – Party liability – That the trial Judge’s directions on s 66(2) of the Crimes Act 1961 were inadequate – Trial process – That the process by which the jury delivered its verdicts was unsafe.

[2011] NZCA 181   CA 75/2011

Dates Application for leave to appeal dismissed.
11 November 2011.
Hearing
Result  

 

Case Number SC 64/2011  
Case Name

Pacific Farms Limited and Pacific Farms Development Limited v Palmerston North City Council and Palmerston North Industrial & Residential Developments Limited

Summary

Civil – Resource Management Act 1991 – Issue of consents without notice ¬– High Court declining to quash consents or grant declarations on terms sought by appellants – Whether Court of Appeal correct to set aside all of High Court’s declarations (and leave feasibility of a rehearing to the parties) on basis that late revelation of a relevant consent and regional plan meant that the critical issues were unable to be addressed in any meaningful way – Whether, in light of that finding, Court of Appeal correct to order parties to bear their own costs and set aside High Court costs orders – Extent of differentiation and/or overlap of functions and jurisdiction of Territorial Authorities and Regional Councils – Effect of regional plan on status of activity for notification purposes – Effect of principles of natural justice on Court of Appeal decision, particularly its decision to determine proceedings on a ground not the subject of pleadings or submissions by the parties.   
 

[2011] NZCA 187    CA 116/2010

Dates Notice of abandonment being lodged, the application for leave to appeal is deemed to be dismissed.
6 July 2011.
Hearing
Result  

 

Case Number SC 63/2011  
Case Name

Yolande Elisabeth Mark and others v The Attorney-General and others

Summary

Civil Appeal – Public Works Act 1981 – Whether Crown required to offer back land acquired in Kapiti for purposes of new motorway under Public Works Act – Whether Court of Appeal erred in its generalised approach to determining public work purpose for which subject land taken and held – Whether Court of Appeal erred in adopting a “merged” approach to s 40(1) of the Public Works Act – Whether Court of Appeal incorrect to suggest land required for essential work under s 40(1)(b).     

[2011] NZCA 176    CA 722/2009

Dates
Hearing
Result Application for leave to appeal dismissed.
Costs $2,500 to the 1st and 2nd respondents (jointly) and the 3rd and 4th respondents (jointly).
23 August 2011.

 

Case Number SC 62/2011  
Case Name

Abdul Saleem Hussein v The Queen

Summary

Criminal – Application to vacate guilty plea – The appellant pleaded guilty to 6 out of 7 charges of receiving stolen vehicles – Before sentence he applied to vacate the guilty pleas asserting that trial counsel advice was inadequate and that he had defences in relation to the charges – The District Court declined the appellant’s application which was upheld by the Court of Appeal – Whether the Court of Appeal was correct to apply s 385(1)(c) of the Crimes Act 1961 instead of an interests of justice test in the context of an application to vacate a guilty plea before sentencing – Whether the Court of Appeal erred in suggesting that an application to adduce further evidence was required in relation to a DVD recording not included in the transcript.

[2011] NZCA 58

Dates

Application for leave to appeal dismissed.

12 August 2011.

Hearing
Result  

 

Case Number SC 61/2011  
Case Name

Matiu Joseph Paora Pahau v The Queen

Summary

Criminal Appeal – Judicial directions – Section 122(1) of the Evidence Act 2006 – The appellant was convicted for the murder of Mr Niwa caused by a single stab wound – The appellant gave evidence at trial that he swung his knife defensively but Mr Niwa stepped in its path – Mr Murray, who was present when the stabbing occurred, gave evidence that the appellant confessed to stabbing Mr Niwa while they were in prison together – The appellant says this evidence is false and that Mr Murray, whose charges against him were dropped, had a motive to lie – Whether the Court of Appeal was correct to uphold the High Court’s decision not to give a warning to the jury under s 122(1).

[2011] NZCA 147

Dates Application for leave to appeal dismissed.
15 August 2011.
Hearing
Result  

 

Case Number SC 60/2011  
Case Name

Warren Bruce Fenemor v The Queen

Summary

Criminal – Admissibility of propensity evidence –That some items of evidence admitted were inadmissible propensity evidence – That the trial Judge’s directions on the use of that evidence were inadequate – That the trial Judge erred in preventing the appellant from demonstrating his account of the incident.

[2011] NZCA 206  CA 457/2010

Dates The application for leave to appeal is granted in part.

The approved ground is whether the Court of Appeal was correct to hold, following R v Degnan that propensity evidence may be led by the Crown despite that evidence having previously been led at a trial which resulted in an acquittal.

We refuse leave to appeal on the other proposed grounds as they do not, in our view, meet the statutory criteria.

23 August 2011.
Hearing 4 October 2011
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Decision reserved
Result Appeal dismissed.
21 October 2011.

 

Case Number SC 59/2011  
Case Name

Marta Hayes v Judith Guerin

Summary

Civil – Administration Act 1969 – Family Protection Act 1955 – Dispute over will –Costs ¬– Whether appellant ought to have been made liable for costs in Court of Appeal following unsuccessful application for extension of time within which to appeal 2009 High Court decision ¬– Whether related lower court judgments were made without jurisdiction; were void ab initio; were erroneous; and thus necessitate a remedy in restitution.

[2010] NZCA 592 CA 466/2010

Dates Application for leave to appeal dismissed with costs $2500 to the respondent.
3 August 2011.
Hearing
Result  

 

Case Number SC 58/2011  
Case Name

Body Corporate 207624 and others v North Shore City Council

Summary

Civil Appeal – Negligence – Leaky building – Whether applicant hotel unit owners owed a duty of care by respondent council – Whether applicant penthouse apartment owners owed a duty of care by council – Whether intended use of building as residential or non-residential a controlling factor in determining whether local authority owes duty of care – How duty of care in respect of a mixed-use building should be determined – Whether council can owe duty of care for negligent misstatement based upon code compliance certificates in absence of specific reliance by applicants.

[2011] NZCA 164  CA 760/2009

Dates

A Leave to appeal is granted.
B The approved ground is whether and to what extent the respondent local authority owed a duty of care to the body corporate and/or all or some of the appellant unit owners in exercising its regulatory functions under the Building Act 1991 in relation to the construction of the Spencer on Byron building which contains a mixture of  non-residential and residential apartments.

5 August 2011.

Hearing 20, 21 and 26 March 2012.
Elias CJ, Tipping, McGrath, William Young, Chambers JJ.
Decision reserved.
Result

A The appeal is allowed.
B The orders made in the High Court and Court of Appeal are set aside.
C The appellants’ claim against the respondent is permitted to proceed in the High Court.
D The appellants are entitled to costs in the High Court and the Court of Appeal.  If the parties cannot agree quantum, costs are to be fixed in the respective Courts.
E The respondent is to pay the appellants’ costs in this Court in the sum of $40,000 plus disbursements to be fixed, if necessary, by the Registrar. 

11 October 2012.

 

Case Number SC 57/2011  
Case Name

Mahana Makarini Edmonds v The Queen

Summary

Criminal Appeal – Party offences – Section 66(2) of the Crimes Act 1961 – Appellant was convicted of manslaughter after Mr Pahau, one of his associates, killed Mr Niwa through a single stab wound inflicted by a knife - Whether the jury must be directed that knowledge of the possession of the particular type of weapon used in the commission of the principal offence is required under s 66(2).  

[2011] NZCA 147  CA 588/2010

Dates A Leave to appeal is granted.
B The approved ground of appeal is whether the trial Judge should have directed the jury that they could not convict the appellant unless satisfied that he knew the principal offender was carrying a knife.
15 August 2011.
Hearing

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
6 October 2011

Result Appeal dismissed.
20 December 2011

 

Case Number SC 56/2011  
Case Name

John George Russell v The Taxation Review Authority & Commissioner of Inland Revenue

Summary

Civil Appeal – Bias – Whether Court of Appeal erred in holding that any apparent bias on the part of Judge Barber in the Taxation Review Authority was “cured” by the effective rehearing held by Justice Wylie in the High Court – Whether the Court of Appeal took into account irrelevant matters or gave insufficient weight to relevant matters or made erroneous factual findings.

[2011] NZCA 158  CA 65/2009

Dates Application for leave to appeal dismissed.
Costs $2,500 to the second respondent.
26 August 2011.
Hearing
Result  

 

Case Number SC 55/2011  
Case Name

Anthony Phillip Musson v Ministry of Fisheries

Summary

Civil – Fisheries levies – That the District Court erred in granting judgment to the Ministry of Fisheries against the appellant.

Civ 2011 425 043

Dates

Application for leave to appeal dismissed. Costs to the respondent in the sum of $1500.00 plus disbursements.

27 June 2011.
Hearing
Result  

 

Case Number SC 54/2011  
Case Name

Say Tsuong Lu v The Queen

Summary

Criminal – Sentence – Minimum Period of Imprisonment (MPI) – Whether Court of Appeal erred in concluding applicant’s MPI not manifestly excessive – Whether integrity and consistency of MPIs for such offending (supply of methamphetamine) being maintained.

[2011] NZCA 151  CA 485/2010

Dates

Application for leave to appeal dismissed.

10 August 2011.

Hearing
Result  

 

Case Number SC 53/2011  
Case Name

Shane Andrew Ellis v The Queen

Summary

Criminal Appeal – Juries Act 1981 – Applicant convicted in High Court at Wellington by jury trial on three counts of importing methamphetamine – Jury selected in accordance with Juries Act – Whether trial was unfair as jury unrepresentative of population, in particular New Zealand’s rural population, and did not constitute trial by applicant’s peers.

[2011] NZCA 90 CA 739/2009

Dates

Application for leave to appeal dismissed.

2 June 2011.

Hearing
Result  

 

Case Number SC 52/2011  
Case Name

Lewis Gaire Herdman Thompson v The Commissioner of Inland Revenue

Summary

Civil Appeal – Tax – The appellant deregistered for GST from 30 November 1999 – Commissioner of Inland Revenue later made tax assessments on the basis that the appellant was not able to deregister at this time because of subsequent land transactions – Whether there were reasonable grounds for the Court of Appeal to make a finding of fact that the appellant would have made taxable supplies greater than $30,000 through these transactions after deregistration – Whether the Court of Appeal was correct to set the end of the appellant’s GST period at 31 January 2001 instead of February 2000.  

[2011] NZCA 132  CA 580/2009

Dates The application for leave to appeal is granted on the following grounds:

A When did the appellant become entitled to be de-registered for GST purposes?

B In light of that determination, and the circumstances in which they took place, did the second and third sales of land attract GST?

22 August 2011.

Hearing 1 March 2012.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Decision reserved.
Result Appeal dismissed.
Costs of $15,000 plus disbursement to the respondent.
10 May 2012.

 

Case Number SC 51/2011  
Case Name

David Ingram Rowley and Barrie James Skinner v Commissioner of Inland Revenue

Summary

Criminal Appeal – Name Suppression – Interim name suppression order granted in the District Court, but overturned in High Court, with a Court of Appeal majority upholding the High Court’s decision – Whether Court of Appeal majority correctly applied the test for name suppression appeals – Whether Court of Appeal majority was right to uphold the view of the High Court Judge that the possible impact on financing of a defence was an irrelevant consideration – Whether Court of Appeal majority was correct in supporting the High Court Judge’s finding that the District Court Judge had failed to take into account a relevant consideration, namely the interest in clients of the appellants in knowing of the charges faced – Whether Court of Appeal majority was justified in holding that the High Court could make its own evaluation of the factors for and against name suppression if the District Court took into account irrelevant considerations or failed to take into account a relevant consideration.

[2011] NZCA 160  CA 112/2011

Dates Application for leave to appeal is declined.
7 July 2011.
Hearing
Result  

 

Case Number SC 50/2011  
Case Name

DF  v The Queen

Summary

Criminal – Admissibility of Evidence – Defective warrant – Whether the Court of Appeal gave sufficient weight to defects in the warrant application when it determined that the evidence was admissible under s 30 of the Evidence Act 2006.

[2011] NZCA 151  CA 612/2010

Dates

Application for leave to appeal dismissed.

20 May 2011
Hearing
Result  

 

Case Number SC 49/2011  
Case Name

Vincent Ross Siemer v Michael Peter Stiassny and Korda Mentha

Summary

Civil – Costs – Defamation – Whether Court of Appeal, in considering quantum of damages awarded against applicant, erred by: not considering applicant’s substantive defence of truth; upholding finding of liability in the circumstances. 

[2011] NZCA 106  CA 826/2009

Dates

Application for leave to appeal dismissed.

3 June 2011.
Hearing
Result  

 

Case Number SC 48/2011  
Case Name

Carol Margaret Down v The Queen

Summary

Criminal Appeal – Resource Management Act 1991 – Summary Proceedings Act 1957 – Applicant convicted of four counts of discharge of a contaminant under s 15 RMA – Whether s 15 discharge offences are infringement offences as defined in s 2(1) SPA and therefore required leave of District Court Judge or Registrar to lay informations under s 21 SPA and also s 78A SPA applicable – Whether Court of Appeal correct to find prosecution saved in any case by s 204 SPA and did not result in a nullity.

[2011] NZCA 119  CA 819/2009

Dates

Leave to appeal is granted.
The approved grounds are:
(i) whether the laying of the informations on the discharge counts required leave of a District Court Judge or Registrar under s 21 of the Summary Proceedings Act 1957; and
(ii) if so, whether in the absence of such leave prior to the laying of the informations the proceedings were validated by s 204 of that Act.

5 August 2011.

Hearing 29 November 2012.
Elias CJ, Blanchard, McGrath, William Young, Gault JJ.
Decision reserved.
Result Appeal dismissed.
3 April 2012.

 

Case Number SC 47/2011  
Case Name

Peter Morrison Petryszick v The Queen

Summary

Criminal Appeal – s 385 of the Crimes Act 1961 – Whether the Court of Appeal, after an order by the Supreme Court to remit this appeal in Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153, denied the appellant an effective appeal against conviction on one count of assault using a motor vehicle as a weapon. 

[2011] NZCA 99  CA 269/2008

Dates

Application for leave to appeal dismissed.

30 June 2011.
Hearing
Result  

 

Case Number SC 46/2011  
Case Name

Neil Tony Hickman and others v Turn and Wave Limited, Greenstone Barclay Trustees Ltd and Iicon Central Ltd

Summary

Civil Appeal – Securities Act 1978 – Whether Court of Appeal erred in its interpretation of s 33 of the Securities Act, its interpretation of the term “debt security” under the Securities Act, and its interpretation of the scope of the exemption in s 5(1)(b) of the Securities Act – Whether Court of Appeal erred in finding that if the Blue Chip investment products were invalid, they were not interdependent with the sale and purchase agreements – Whether the Court of Appeal erred in holding that the sale and purchase agreements were not tainted by illegality if in breach of s 33 of the Securities Act

[2011] NZCA 100  CA 796/2009, CA 797/2009, CA 798/2009

Dates

Leave to appeal is granted on the following questions:

(1) Did the marketing by Blue Chip companies and sales agents of the Blue Chip investment products amount to offers to the public of equity and/or debt securities for the purposes of s 37 of the Securities Act 1978?

(2) If so, is the exemption in s 5(1)(b) applicable?

(3) If the answers to questions (1) and (2) are favourable to the investors, does this impeach the ability of the developers to enforce the agreements for sale and purchase on the basis that they (a) constituted part of the relevant allotments and were thus void and of no effect under s 37(4) or, (b) were tainted by their association with those allotments and thus illegal?

6 September 2011.

Hearing 7 – 9 November 2011
Elias CJ, Tipping, McGrath, William Young, Anderson JJ.
Decision reserved.
Result

A The appeals are allowed.

B The SPAs executed at the same time as, or after, the corresponding Blue Chip investment product agreements were entered into are declared to be unenforceable under s 37 of the Securities Act 1978.

C The High Court is to determine whether SPAs, entered into before the corresponding Blue Chip investment products were executed, were subscriptions for securities.

D The cases are otherwise generally remitted to the High Court to make such further orders as may be consistent with this judgment.

E The respondents are to pay the appellants costs $75,000 and usual disbursements.

F Costs in the High Court and Court of Appeal are to be as determined by those courts.

9 August 2012.

 Recall Judgment

Former order F now replaced by orders F, G and H.

F The existing orders for costs in the High Court and Court of Appeal are set aside.

G Other than those affected by timing issues (being Mr Hutchinson in the case of TWL, and in the case of Greenstone Barclay, Mr and Mrs Bogardus, Ms Janes, Mrs and Mrs Johnson, Mr Crawford-Greene, Mr and Mrs Dick and Mr and Mrs Lester) the appellants are to be awarded costs and disbursements in the High Court and Court of Appeal in sums to be determined by those Courts in light of the judgment of this Court.

H Costs and disbursements in relation to the appellants affected by timing issues are to be addressed in the High Court and Court of Appeal once those timing issues have been resolved.

11 December 1012

 

Case Number SC 45/2011  
Case Name

Maritime New Zealand v Survey Nelson Limited

Summary

Judicial Review – Direct appeal from High Court decision – Whether Court of Appeal decision which High Court interpreted correct (see SC 14/2011) – Accordingly, whether High Court decision correct – Whether failure to grant leave would result in substantial miscarriage of justice.   

Civ  2011 485 391

Dates

Notice of abandonment being lodged, the application for leave to appeal is deemed to be dismissed.

8 June 2011.
Hearing 29 November 2011.
Elias CJ, Blanchard, McGrath, William Young, Gault JJ.
Decision reserved.
Result  

 

Case Number SC 44/2011  
Case Name

Pauesi Brown v The Queen

Summary

Criminal – Sentence – Sentencing Act 2002 – Whether Court of Appeal correct to dismiss appeal against sentence – Whether appropriate approach taken to mitigating and aggravating features – Absence of specific credit for remorse – Insufficient credit for guilty plea – Whether correct approach taken to imposing Minimum Period of Imprisonment.  

[2011] NZCA 95  CA 894/2010

Dates

Application for leave to appeal dismissed.
5 July 2011.

Hearing
Result  

 

Case Number SC 43/2011  
Case Name

Rangi Kemara  v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114  

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing 14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Result Appeal allowed by consent. Orders for trial by judge alone set aside.
14 September 2011.

 

Case Number SC 42/2011  
Case Name

Tuhoe Lambert  v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114   CA 879/2010

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing 14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Result  Appeal is deemed to be dismissed due to the death of the appellant.

 

Case Number SC 41/2011  
Case Name

Trudi Paraha v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114   CA 871/2010

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing 14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Result Appeal allowed by consent. Orders for trial by judge alone set aside.
14 September 2011

 

Case Number SC 40/2011  
Case Name

Phillip Purewa v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114   CA 874/2010

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing 14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ
Result Appeal allowed by consent. Orders for trial by judge alone set aside.
14 September 2011.

 

Case Number SC 39/2011  
Case Name

Valerie Morse v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114   CA 864/2010

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing 14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ
Result Appeal allowed by consent. Orders for trial by judge alone set aside.
14 September 2011.

 

Case Number SC 38/2011  
Case Name

Fonterra Co-operative Group Limited v The Grate Kiwi Cheese Company Limited & Kaimai Cheese Co Ltd

Summary

Civil Appeal – the Commerce Commission made a final determination on 5 June 2009 that The Grate Kiwi Cheese Company Ltd and Kaimai Cheese Company Ltd were both entitled to raw milk from Fonterra under the Dairy Industry Restructuring (Raw Milk) Regulations 2001 – whether the Court of Appeal erred in upholding the Commerce Commission determination – whether an entity can be entitled to raw milk even though the entity does not itself process the milk

[2011] NZCA 67   CA 223/2010

Dates

The application for leave to appeal is granted.

The approved ground is whether the Court of Appeal ([2011] NZCA 67) correctly applied the Dairy Industry Restructuring (Raw Milk) Regulations 2001.

20 June 2011

Hearing 14 February 2012.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Decision reserved.
Result

Appeal dismissed. Costs $15,000 plus disbursements to the respondent.

15 March 2012.

 

Case Number SC 37/2011  
Case Name

Emily Felicity Bailey v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114   CA 873/2010

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing
14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Result Appeal allowed by consent. Orders for trial by judge alone set aside.
14 September 2011.

 

Case Number SC 36/2011  
Case Name

Urs Peter Signer v The Queen

Summary

Criminal Appeal - Trial by Judge alone - whether the Court of Appeal erred in upholding the order made in the High Court under s 361D of the Crimes Act 1961 that the trial of the applicant proceed before a Judge alone

[2011] NZCA 114  CA 872/2010

Dates

A The application for leave to appeal is granted.

B The approved ground is whether the High Court and Court of Appeal correctly interpreted and applied s 361D of the Crimes Act 1961 in directing that the applicants be tried for the offences charged under indictment (Number CRI 2007-085-7842) before a Judge without a jury.

6 May 2011
Hearing 14 September 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Result Appeal allowed by consent. Orders for trial by judge alone set aside.
14 September 2011.

 

Case Number SC 35/2011  
Case Name

Carol Margaret Down v The Queen

Summary

Criminal – Dishonestly using a document – Whether the guilty verdicts were reasonable without direct evidence that the appellant had ‘used’ the documents in question –Whether the guilty verdicts on four counts were inconsistent with the not guilty verdict on the first count – Whether a miscarriage resulted from publicity of the case – Whether the sentence imposed was excessive.

[2011] NZCA 138   CA 497/2010

Dates

Application for leave to appeal dismissed.

10 August 2011.

Hearing
Result  

 

Case Number SC 34/2011  
Case Name

AVM v The Queen

Summary

Criminal – Evidence Act 2006, ss 37 and 85 – Whether Crown ought to have disclosed material in its possession regarding expert witness to defence, in order to prevent ‘trial by ambush’ – Whether cross-examination of expert was in substance a challenge to witness’ veracity and s 37 was properly complied with (ie leave should have been sought) – Whether leave should have been sought based on s 85, ss 7 and 8 or common law – Whether in all the circumstances, the applicant had a fair trial. 

[2011] NZCA 84  CA 438/2010

Dates

Application for leave to appeal dismissed.

20 June 2011.
Hearing
Result  

 

Case Number SC 33/2011  
Case Name

Open Country Cheese Company Limited v New Zealand Dairy Workers Union Incorporated

Summary

Civil Appeal – Employment Relations Act 2000 – Applicant’s parent company sent own employees to operate applicant’s cheese and milk powder plant during lawful strike by members of respondent union employed at plant – Whether parent company employees “employed or engaged” by applicant in breach of s 97(2) of Employment Relations Act.

[2011] NZCA 56  CA 687/2009

Dates

Application for leave to appeal dismissed with costs of $2,500 to the respondent.

2 June 2011.
Hearing
Result  

 

Case Number SC 32/2011  
Case Name

Steven John Cleave v The Queen

Summary

Criminal Appeal – Wounding with intent to cause grievous bodily harm – Whether appellant was denied right to elect to give evidence of self-defence by defence counsel – Whether defence counsel failed to follow instructions by not proceeding with forensic testing. 

[2011]  NZCA 40  CA 127/2010

Dates Application for leave to appeal dismissed.
5 July 2011.
Hearing
Result  

 

Case Number SC 31/2011  
Case Name

Jordan James Ataria v The Queen

Summary

Criminal Appeal – Sentencing – Whether the Judge was entitled to determine particular matters of fact at the sentencing stage, and whether there was sufficient evidence to support those findings of fact – Whether the appellant’s sentence should be reduced on account of an alleged disparity with the sentence imposed on certain other offenders in this case

[2010] NZCA 559 CA 120/2010

Dates Application for leave to appeal dismissed.
17 June  2011.
Hearing
Result  

 

Case Number SC 30/2011  
Case Name

Kathy Apostolakis v Damir De Polo

Summary

Civil Appeal – Family Law – Whether the appellant’s decision to represent herself caused her undue disadvantage – Whether relevant facts were not taken into account by the Family Court.

Civ 2009 485 2550  22 July 2010

Dates

Notice of abandonment being filed, the application for leave to appeal is deemed to be dismissed.

22 June 2011.
Hearing
Result  

 

Case Number SC 29/2011  
Case Name

Kay Halton Skelton v The Queen

Summary

Criminal Appeal – Sentence – Whether Court of Appeal erred in dismissing sentence appeal – Whether rights of children of mothers in custody; effects of imprisonment on a pregnant woman/mother of a young child; and totality principle properly considered – New Zealand’s obligations under United Nations Convention of the Rights of the Child.

[2011] NZCA 35  CA 663/2010

Dates

Application for leave to appeal dismissed.

27 June 2011.
Hearing
Result  

 

Case Number SC 28/2011  
Case Name

Lynette Kaye Stewart v The Queen

Summary

Criminal Appeal – Sexual Offences – Party Liability – Applicant convicted as party to sexual violation by unlawful sexual connection – Court of Appeal allowed new medical evidence in principal offender’s appeal and quashed principal offender’s conviction ordering re-trial – Whether quashing of principal offender’s conviction renders applicant’s conviction unsafe.

CA 515/2005

Dates

A  The application for leave to appeal is granted.

B  The approved ground is whether the conviction can stand in light of the quashing of the conviction of the person with whom the appellant was jointly charged and her discharge under s 347 of the Crimes Act 1961.

12 May 2011

Hearing

2 June 2011

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.
Result

Appeal allowed. Conviction quashed.  No order for new trial.

2 June 2011.

 

Case Number SC 27/2011  
Case Name

Technix Group Limited v Fitzroy Engineering Group Limited

Summary

Civil Appeal – Contract – Lease contained clauses conferring an option to purchase and a right of pre-emption option to purchase process has been triggered but not completed – Whether the Court of Appeal’s decision to impose its own interpretation of the lease that was in line with business common sense instead of following the plain and ordinary meaning of the lease was a correct application of Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444.

[2011] NZCA 17  CA 337/2010

Dates

Application for leave to appeal  is dismissed.

Costs to the respondent $2,5000 plus disbursements.

20 May 2011.

Hearing
Result  

 

Case Number SC 26/2011  
Case Name

David Stanley Heenan v The Attorney-General

Summary

Civil Appeal – Judicature Act 1908 – Vexatious litigant – Order made by the High Court under s 88B(1) of the Act that no civil proceeding be instituted or continued by Mr Heenan, either in his own name or in a representative or fiduciary capacity, in any court without the leave of the High Court – Order upheld by the Court of Appeal – Applicant’s submissions to this Court repeat allegations of forgery, fraud and perjury against judicial officers and other individuals – whether the High Court erred in exercising its discretion to make orders under s 88B(1)

[2011] NZCA 9  CA 630/2009

Dates

Application for leave to appeal  is dismissed.

20 April 2011.
Hearing
Result  

 

Case Number SC 25/2011  
Case Name

Idea Services Limited v Phillip William Dickson

Summary

Civil Appeal – Minimum Wage Act 1983 – Definition of ‘work’ – Whether the Court of Appeal erred in holding that ‘work’ includes time engaged in a ‘sleepover’ – Whether the Court of Appeal erred in holding that the appellant must pay at least the minimum wage rate for each hour of work.

[2011] NZCA 14  CA 405/2010

Dates

A  The application for leave to appeal is granted.

B  The approved grounds are:

(a) Whether sleepovers constitute “work” under s 6 of the Minimum Wage Age 1983; and

(b) If so, whether the Act is complied with if an employee’s average rate of pay over a pay period is not less than the prescribed minimum.

19 May 2011
Hearing
Result  

 

Case Number SC 24/2011  
Case Name

Joseph Lockwood Tana v The Attorney-General

Summary

[2011] NZCA 12  CA 587/2010

Dates
Hearing

Application for leave to appeal dismissed.

19 May 2011.
Result  

 

Case Number SC 23/2011  
Case Name

Jeremy James McGuire v Lee Grace Sheridan

Summary

Civil Appeal – Fees – Legal Services Act 2000 – Whether applicant entitled to payment of quantum meruit legal fees from respondent notwithstanding s 66 Legal Services Act – Whether respondent agreed to abandon legal aid grant in signing contingency-fee and fixed-fee agreements with respondent – Whether under s 66 permission must be sought from Legal Services Agency before suing for “top-up” of legal aid fees – Whether High Court summary judgment hearing unfair – Whether award of indemnity costs by High Court against applicant unwarranted.

[2011] NZCA 15  CA 377/2010

Dates

Application for leave to appeal dismissed. Costs $2,000 to the respondent.

13 April 2011
Hearing
Result  

 

Case Number SC 22/2011  
Case Name

TN v The Queen

Summary

[2011] NZCA 8  CA 797/2010 CA 885/2010

Dates

Application for leave to appeal dismissed.

31 March 2011.
Hearing
Result  

 

Case Number SC 21/2011  
Case Name

Sher Afzal Khan v Keith William Reid

Summary

Civil Appeal – Application to set aside bankruptcy notice – Court of Appeal declined application for an extension of time for filing the appeal ­–Mr Khan had already been adjudicated bankrupt and that adjudication was final and binding under s 61 of the Insolvency Act 2006 – whether the Court of Appeal erred in fact and in law in considering that no satisfactory explanation had been given for initial delay and that, in any event, the present application would fail

[2011] NZCA 22  CA 242/2010

Dates

Application for leave to appeal dismissed with cocts of $2,500 to the respondent.

1 June 2011.
Hearing
Result  

 

Case Number SC 20/2011  
Case Name

Vincent Ross Siemer v Michael Peter Stiassny and others

Summary

Civil Appeal – Strike out application – Whether a cause of action can be struck out before any statement of defence has been filed and the plaintiff’s evidence contested – Judicial bias – Whether a Judge shows bias by requesting the defendant to carry out some action against the plaintiff in relation to a separate proceeding.

[2011] NZCA 1  CA 718/2010

Dates

Application for leave to appeal dismissed, with costs $1500.00 plus disbursements to be fixed if necessary by the Registrar to the Attorney-General.

20 April 2011.

Hearing
Result  

 

Case Number SC 19/2011  
Case Name

Shirleen Shia Ling Sim v Moncrieff Pastoral Limited

Summary

Civil – Deemed abandonment – Whether Court of Appeal correct to decline application for order granting extension of time to appeal as well as making associated orders – whether leave ought to be granted to adduce new evidence. 

[2011] NZCA 21   CA 706/2010

Dates

The application for leave to appeal is dismissed.

 

The applicant is to pay the respondent costs in the sum of $2,500.

9 May 2011.

Hearing
Result  

 

Case Number SC 18/2011  
Case Name

Kerry John Williams v The Queen

Summary

Criminal Appeal – Right to a fair trial – New Zealand Bill of Rights Act 1990, ss 24, 25; Sentencing Act 2002, s 30 – Applicant convicted by jury on charges of conspiracy to supply methamphetamine, supply and manufacture of methamphetamine – Applicant lost legal representation during the course of the trial – whether the Court of Appeal erred in finding that the applicant’s right to a fair trial was not impaired, as a result of the trial continuing shortly after counsel for the applicant withdrew 

CA 137/04  19 May 2005

Dates

Application for leave to appeal dismissed.

9 June 2011.
Hearing
Result  

 

Case Number SC 17/2011  
Case Name

Alex Kwong Wong v The Queen

Summary

Criminal – Appeal out of time against conviction for importation and possession of methamphetamine – Whether the Court failed to provide a proper interpreter at, or interpretation of, the trial – Interlocutory application under ss 25(2) and 28 of the Supreme Court Act 2003 and/or rule 18 of the Supreme Court Rules 2004 – Request for an interlocutory order that the Auckland High Court Registry release a copy of all audio recordings of Mr Wong at trial to support this application.

CRI 2005 004 15296  1 May 2009

Dates

Application for leave to appeal dismissed.

11 March 2011.
Hearing
Result  

 

Case Number SC 16/2011  
Case Name

Liam James Reid v The Queen

Summary

Criminal appeal – application for leave to appeal out of time – possible fresh evidence.

[2009] NZCA 281  CA 794/2008  7 July 2009

Dates Application for leave to appeal dismissed.
28 February 2012.
Hearing
Result  

 

Case Number SC 15/2011  
Case Name

Allan Brian Miller and Michael John Carroll v The New Zealand Parole Board and The Attorney-General

Summary

Civil – Judicial Bias – Whether the Court of Appeal bench was properly selected – Whether the Court of Appeal applied the correct test for judicial bias – Whether the Parole Board was independent – Whether the appellant Carroll was properly recalled from parole – Whether preventive detention is consistent with the rehabilitation purpose of art 10(3) of the International Covenant on Civil and Political Rights.

[2010] NZCA 600  CA 67/2009  8 December 2010

Dates

Application for leave to appeal dismissed.

23 March 2011.

Hearing
Result  

 

Case Number SC 14/2011  
Case Name

Maritime New Zealand v Survey Nelson Limited

Summary

Judicial Review – Decision to approve Safe Ship Management Company – Maritime Transport Act 1995 – Maritime Rules – Error of Law – Whether Court of Appeal correct, after finding error of law, to reverse High Court position and grant relief to Survey Nelson Ltd ­– Whether Court of Appeal possessed jurisdiction to reinstate approval where this effectively required the issue of a new approval

[2010] NZCA 629   CA 245/2010  21 December 2010

Dates

The application for leave to appeal is dismissed.

The applicant is to pay the respondent costs in the sum of $2,500 plus disbursements and other necessary payments, to be fixed if necessary by the Registrar. 

2 June 2011.

Hearing
Result  

 

Case Number SC 13/2011  
Case Name

Toa Haere Faulkner v Deputy Registrar, Trustees of Allotment 5 Parish of Tahawai and Western Bay of Plenty District Court

Summary

Civil appeal – Te Ture Whenua Maori Act 1993 – Determination of the Maori Land Court of Maori freehold land status – Whether the Maori Land Court erred in law – Whether the Maori Land Court failed to consider evidence – Whether the Maori Land Court is biased towards the Crown.

Maori Appellate Court A 20090002450 21 December  2010

Dates

Application for leave to appeal dismissed. Costs $2,500 to the 2nd respondent.

12  April 2011.
Hearing
Result  

 

Case Number SC 12/2011  
Case Name

Sherman Limited v Roy Jay Harlow and Nancy Jean Harlow

Summary

Civil – Appeal against a decision of the Court of Appeal overturning the High Court – Restrictive covenants registered against a title to land by the vendors after an agreement of sale and purchase made –Whether the purchaser is obliged to requisition the title where the purchaser objects to the title available from the vendor – Whether, in the absence of requisition, the vendor is entitled to issue a settlement notice and in the absence of compliance with the notice, to cancel the contract.

[2010] NZCA 627  CA 785/2009 20 December  2010

Dates

Application for leave to appeal dismissed. Costs $2,500 to the respondent.

11  April 2011.
Hearing
Result  

 

Case Number SC 11/2011  
Case Name

The Attorney-General and Lindsay Gow v Erin Alice Leigh

Summary

Civil Appeal – Defamation Act 1992 – Absolute Privilege – whether the Court of Appeal erred in holding that the Briefing Paper and oral statements did not form part of the “proceedings in the House of Representatives” and therefore were not protected by absolute privilege

[2010] NZCA 624  CA 483/2009 17 December  2010

Dates

The application for leave to appeal is granted.

The approved ground is whether the communications by Mr Gow to the Minister for the Environment were the subject of absolute privilege.

11 April 2011.

Hearing

16 August 2011

Elias CJ, Blanchard, Tipping, McGrath, Anderson JJ.

Decision reserved.

Result Appeal dismissed.
16 September 2011.

 

Case Number SC 10/2011  
Case Name

Erin Alice Leigh v The Attorney-General and Lindsay Gow

Summary

Civil Appeal – Defamation – the applicant claims damages for defamation against the then Minister for the Environment and Deputy Secretary of the Ministry in relation to statements made about her in a Briefing Paper and orally ­– whether the Court of Appeal erred in finding that Article 9 of the Bill of Rights 1688 precluded the applicant from relying on republication of the statements in the House of Representatives to show the nature and extent of consequential damage from the original written and oral statements

[2010] NZCA 624  CA 483/2009 17 December  2010

Dates

Notice of abandonment being lodged, the application for leave to appeal is deemed to be dismissed.

8 April 2011.
Hearing
Result  

 

Case Number SC 9/2011  
Case Name Gary Owen Burgess v Susan Natalie Beaven
Summary

Civil – Property (Relationships) Act 1976 – Relationship Property – Whether Court of Appeal took correct approach to overturning lower court decisions and costs orders – Whether relationship property was correctly assessed under the Property (Relationships) Act, and a division of relationship property inconsistent with the Act has eventuated.

[2010] NZCA 625  CA 371/2009   20 December  2010

Dates


1 We grant leave to appeal and cross-appeal (and an extension of time in relation to the cross-appeal).

2 The approved grounds of appeal and cross-appeal proceed on the basis that the Court of Appeal’s assessment under s 14(2)(c) of the Property (Relationships) Act 1976 in favour of equal sharing was correct and are as follows:

(a) was the Court of Appeal in error in adopting separation date values;

(b) was there any logical or arithmetical error in the Court of Appeal’s identification and valuation of the relationship property and its allowances for post-separation contributions;

(c) should the Court of Appeal have made consequential orders in respect of the costs ordered in relation to earlier judgments and money paid by Mr Burgess to Ms Beaven; and

(d) what, if any, additional or other orders are required.

22 September 2011.

Hearing 23 April 2012.
Blanchard, Tipping, William Young, Chambers, Anderson JJ.
Decision reserved.
Result

A The appeal is allowed and the cross-appeal is dismissed.

B Orders B, C and D of the decision of the Court of Appeal [2010] NZCA 625 are set aside.

C The awards of costs made against Mr Burgess by John Hansen J in the Stream A litigation are set aside and in their place Mr Burgess is awarded $5,000 costs in respect of the first appeal to the High Court heard by John Hansen J. 

D Ms Beaven’s gross liability to Mr Burgess is:

(a) Balance due on division of property  3,716.10

(b) Refund of money paid to Ms Beaven 36,804.31

(c) Costs and disbursements on first appeal    5,000   

Total       45,520.41

E Ms Beaven is entitled to set off outstanding awards of costs in her favour totalling $15,474.16 against her gross liability producing a net figure which she must pay, and on which Mr Burgess may now execute judgment of $30,046.25.  Interest will run on that sum from the date of this judgment in terms of r 11.27 of the High Court Rules.

F Ms Beaven is to pay Mr Burgess usual disbursements in relation to this appeal.

9 August 2012.

 

Case Number SC 8/2011  
Case Name Vincent Ross Siemer v Michael Peter Stiassny and Korda Mentha
Summary

Civil Appeal – Defamation – Injunctions – Whether High Court correct to strike out appellant’s application to vary/set aside injunction as abuse of process – Whether Court of Appeal properly addressed leave question of extension of time to file appeal –Whether Court of Appeal dealt with substantive issues not properly the subject of leave hearing.

[2010] NZCA 607  CA 692/2010  14 December  2010

Dates

The Application for leave to appeal is dismissed with costs of $2,500 to the respondents.

9 May 2011.

Hearing
Result  

 

Case Number SC 7/2011  
Case Name Jane Chapman Siemer v Kate Fardell as executrix of the estate of John  Robert Fortesque Fardell
Summary

Civil – Pre-trial security for costs – Appeal against a Court of Appeal decision refusing to dispense with security for costs in an appeal before that Court – Whether the procedure adopted by the Court lacked procedural fairness – Whether the Court properly exercised discretion – Whether the Court’s ruling wrong on the merits – Section 27 of the New Zealand Bill of Rights Act 1990 – Whether right to justice at trial court level violated.   

[2010] NZCA 586  CA 450/2010   3 December  2010

Dates

Application for leave to appeal dismissed, with costs of $2,500 to the respondent.

31 March 2011.
Hearing
Result  

 

Case Number SC 6/2011  
Case Name Vincent Ross Siemer v Michael Heron and others
Summary

Civil Appeal – Procedure – Whether the Court of Appeal’s holding that there is no automatic right of appeal against a High Court order fixing security for costs is consistent with natural justice – Whether the Court of Appeal addressed the appellant’s arguments – Whether the fact that r 20.13(2) of the High Court Rules was adopted by the Rules Committee has International Covenant on Civil and Political Rights implications.

[2010] NZCA 610  CA 190/2010  14 December  2010

Dates

The application for leave to appeal is granted.

The ground approved is whether leave of the Court of Appeal was required under s 67 of the Judicature Act for the applicant’s appeal against security for costs fixed by order of the High Court or whether appeal was available as of right under s 66 of the Judicature Act.

30 March 2011.

Hearing 15 August 2011.
Elias CJ, Blanchard, Tipping, McGrath, William Young JJ
Decision reserved.
Result Appeal dismissed. Costs reserved.
8 November 2011.
Applications for recall and costs Application for recall of judgment of 8 November 2011 is dismissed.
Both applications for costs are dismissed.
9 December 2011. 
2nd Application for recall

Dismissed.
14 December 2011.

 

Case Number SC 5/2011  
Case Name Gary Morell v The Queen
Summary

Criminal appeal – Proceeds of Crime Act 1991 – Whether the Court of Appeal erred in holding that the appellant had no interest in the property and thus had no standing to appeal against the proceeds of its sale vesting in Mascot Finance Ltd – Whether the Court of Appeal erred in holding that there was no right of appeal under s 82 of the Proceeds of Crime Act.

[2010] NZCA 570  CA 448/2010   30 November  2010

Dates

Application for leave to appeal dismissed.

19 April 2011.
Hearing
Result  

 

Case Number SC 4/2011  
Case Name Lisa Marie Colleen Mandic and Stephen Neil Dohnt
Summary

Civil – Interpretation of a Glasgow lease – Whether Court of Appeal erred in its approach and conclusions as to the interpretation of the lease’s particular rental review formula. 

[2010] NZCA 576  CA 787/2009   3 December  2010

Dates

Leave to appeal is granted.

The approved ground of appeal is whether the Court of Appeal conclusion as to the valuation methodology provided by cl 13(b) of the lease is correct.

18 March 2011.

Hearing

23 June 2011

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Decision reserved.

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Decision reserved.

Result The appeal is dismissed.
The appellants are to pay the respondent costs of $15,000 and reasonable disbursements in connection with this appeal, as fixed by the Registrar if necessary.
11 November 2011.

 

Case Number SC 3/2011  
Case Name Taito Phillip Hans Field
Summary

Criminal Appeal – Corruption and Bribery – Whether the Court of Appeal adopted the wrong test for corruptly obtaining a  bribe under s 103 Crimes Act 1961 – Whether Court of Appeal applied the wrong test for attempting to obstruct or pervert the course of justice – Whether Court of Appeal erred in finding appellant was not deprived of right to a fair trial and no miscarriage had resulted through admission of evidence from ministerial inquiry – Whether Court of Appeal was wrong to dismiss appeal against sentence.

[2010] NZCA 556  CA 681/2009  26 November  2010

Dates

The application for leave to appeal is granted.

The approved ground is whether the Court of Appeal has in [2010] NZCA 556 correctly stated the test for corruptly accepting a bribe in terms of s 103 of the Crimes Act 1961.

17 March 2011

Hearing

21 June 2011

Elias CJ, Blanchard, Tipping, McGrath, William Young JJ.

Decision reserved.
Result

Appeal dismissed.
27 October 2011.

 

Case Number SC 2/2011  
Case Name VM  v The Queen
Summary

Criminal – Summary Proceedings Act 1957 – validity and scope of search warrants – whether the Court of Appeal erred in upholding the validity of search warrants issued under s 198 of the Summary Proceedings Act 1957; whether the Court of Appeal erred in concluding that s 198 of the Summary Proceedings Act can be used to authorise surveillance on private land – New Zealand Bill of Rights Act 1990 – unreasonable search and seizure – whether the Court of Appeal erred in holding that the police in this case did not breach s 21 of the New Zealand Bill of Rights Act 1990 – Evidence Act 2006 – admissibility of evidence – whether the Court of Appeal erred in its undertaking of the s 30 balancing exercise and in concluding that the evidence in dispute was admissible at trial

[2010] NZCA 528  CA 820/2010  19 November  2010

Dates

The application for leave to appeal is granted.

The approved grounds are whether the challenged evidence was lawfully obtained under s 198 of the Summary Proceedings Act 1957 or was, alternatively, properly admissible pursuant to s 30 of the Evidence Act 2006.

25 March 2011

Hearing

3 and 4 May 2011

Elias CJ, Blanchard, Tipping, McGrath, Gault JJ.

Decision reserved.

Result The appeal is allowed in part.  The video surveillance evidence (other than footage of vehicles on Reid Road) is inadmissible against those appellants.  All the other disputed evidence is admissible against them.
2 September 2011.

 

Case Number SC 1/2011   
Case Name HP v The Queen
Summary

Criminal Appeal – Appeal against Conviction – Evidence – Whether the Court of Appeal erred in holding that no warning needed to be given to the jury in this case regarding allegedly unreliable evidence under s 122 of the Evidence Act 2006 – Whether the Court of Appeal’s approach in R v Taylor [2010] NZCA 69 to s 122 directions is correct –  Whether the Court of Appeal erred in declining an application to adduce fresh evidence concerning the complainant.

[2010] NZCA 617  CA 178/2010  16 December  2010

Dates

Application for leave to appeal dismissed.

18 March 2011.

Hearing
Result  

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