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Court of Appeal Judgments of Public Interest

This page provides access to judgments of the Court of Appeal in the last 90 days deemed to be of particular public interest.

More information about finding court judgments is available on the judgments section of this website.

It is the responsibility of users of the information contained in these decisions to ensure compliance with conditions or other legal obligations governing access, release, storage and re-publication. See also the guide on statutory provisions that prohibit publication of certain information in certain circumstances. If in doubt you should consult the court that issued the decision(s).  Judicial Decisions are presented in PDF format to preserve the integrity of the documents.

Enterprise Miramar Incorporated v Wellington City Council
03 December 2018
[2018] NZCA 541
Media release

Appeal allowed.  Council’s decision granting resource consent quashed.  Application for resource consent remitted back to Council for reconsideration.  Council should consider whether or not to appoint independent commissioners.  Costs orders.

Issue: Did the Council misinterpret or misapply ss 4 and 34(1) of the Housing Accords and Special Housing Areas Act 2013 (HASHAA)?

Held: Yes.  The Council made an error of law by using the purpose of HASHAA to effectively neutralise the other matters that arise for consideration under s 34(1)(b)–(e), with the result that those matters were not properly acknowledged and weighed in the Council’s decision to grant resource consent.  Two other arguments of error of law were rejected.  The Council properly understood the purpose of HASHAA as being to enhance housing affordability.  Having already determined that the proposed development was a qualifying development, the Council was not obliged to reconsider the extent to which the proposed development met the purpose of HASHAA in determining how much weight to attribute to that purpose at the resource consenting stage under s 34(1)(a).

Issue: Did the Council erroneously substitute a lower test than that set out in s 34(2) when assessing whether there was sufficient and appropriate infrastructure to support the development?

Held: No.  The material before the decision-makers was sufficiently detailed for the Council to be satisfied under s 34(2).  To require a higher standard of detail at the pre-consent phase would be impractical.  The Council imposed appropriate conditions on consent requiring expert approval of infrastructure proposals before the development can proceed.

Issue: Did the Council err in failing to appoint independent commissioners to determine the resource consent application?

Held: No.  The Saxmere test for apparent bias is not an appropriate standard for local authorities deciding applications for resource consent.  Local authorities exercise dual commercial and regulatory functions, therefore there will always be some notional conflict of interest.  The appropriate test is whether the Council approached the application with a closed mind.  That was not established on the evidence.  However, in light of the Council’s defence of its decision in this litigation, it should consider whether or not to appoint independent commissioners to reconsider the application.        

Sophie Annabelle Biggs v Stephen Timothy Biggs
30 November 2018
[2018] NZCA 546

Appeal allowed in part.  Orders discovering documents, requiring an interim payment, and for costs.

Family law - practice and procedure

Practice and procedure - discovery

Relationship property - separate property

The wife sought discovery of a large number of documents, mostly relating to the husband’s private equity business.  He resisted on grounds of irrelevance, unfair burden and separate confidentiality obligations to the business.  In the High Court, the Judge characterised the discovery as unnecessary, disproportionate and inconsistent with the goals of relationship property proceedings.  The Judge also addressed several other issues: a claim the husband should pay the wife’s legal and expert accounting costs in the proceeding; a claim for an interim distribution by the wife; and whether he should direct an interim payment to the husband.

Held: there is jurisdiction to make an order requiring one party to pay for all of the other party’s legal and accounting costs pre-trial. An order could be made because of impecuniosity of the applicant or to force more efficient resolution of the proceedings.  The jurisdiction is not exceptional, but it needs to be carefully exercised as it creates powerful incentives.  An interim distribution may be a preferable alternative to such an order, and was in this case.  The wife is justified in pursuing her claims despite her impecuniosity, but the order sought was open-ended and would give her advisers too much discretion.  Instead, the wife should be granted an increased interim payment of $400,000.  There is no basis for not granting the husband an interim distribution.

Held: the Judge did not err in stating the law applicable to discovery, but did err in refusing discovery of certain documents.  The wife’s claim is based on her providing childcare, entertaining corporate clients and similar.  Those indirect contributions are presumptively valuable and it must be assumed she will make out her claim.  This is also an unusual case in that the husband denies spending large amounts of time on the business and claims he contributed equally to childcare.  

Accordingly, some documents sought bear on various aspects of the wife’s claim, especially those that go to the question of how much time the husband spent on the business.  The rest are unnecessary and discovering them would be disproportionate.

Sainey Marong v R
28 November 2018
[2018] NZCA 531

Application to adduce further evidence on appeal declined. Appeal dismissed.

Criminal law - insanity

Criminal practice and procedure - trial counsel error.

The appellant contended that, at the time he committed murder, he was insane because he had not had the proper amount of insulin for his diabetes. No expert considered he was insane. The trial judge left insanity for the jury, which rejected it.

Held: appeal dismissed. The test for insanity is set out in the Crimes Act 1961; other legislation serves different purposes. There was no evidence of insanity; the appellant’s behaviour was plainly abnormal in the extreme, but the jury was well entitled to find that the appellant was sane. Further, the appellant was not denied the ability to call evidence of his insanity; he refused to waive privilege over his communications with trial counsel and the proper inference is that counsel did not call such evidence because it was not available to him. Finally, murderous intent was clearly established.

Commerce Commission v Lodge Real Estate Limited
23 November 2018
[2018] NZCA 523

Appeal allowed.  Cross-appeal dismissed.  Declaration that the respondents’ conduct contravened s 27 of the Commerce Act 1986.  Case remitted back to the High Court for an assessment of penalties.  Costs order.

Commercial law — competition.  Anti-competitive conduct — price-fixing.

The Commerce Commission claimed that the respondents participated in price-fixing by entering into an arrangement or understanding with other real estate agencies that the cost of Trade Me standard listings would be passed on to the vendors, and would generally not be funded by the agency as had previously been the case.  The High Court dismissed the Commerce Commission’s claims.

Issue: Did the respondents enter into an arrangement or understanding that Trade Me listings would generally be vendor funded?

Held: Yes.  The evidence objectively established a consensus and mutual expectations between the agencies that they would move to vendor funding.  Whilst many of the agencies were unlikely to be able to absorb the increased costs of Trade Me listings and were likely to shift to vendor funding, the evidence established that the agencies appreciated that, unless they all shifted to vendor funding, they may lose listings to other agencies.  The arrangement, which involved a co-ordinated withdrawal from Trade Me and shift to vendor funding in January 2014, was not simply conscious parallelism.  

Issue: In order for there to be an arrangement or understanding, is it necessary for the Commerce Commission to establish that the parties had a moral obligation to adhere to the terms of the arrangement?

Held: No.  Provided there is consensus and mutual expectations, it is not necessary for the Commerce Commission to establish the existence of a moral obligation.

Issue: Did the arrangement have the purpose or likely effect of fixing, controlling or maintaining the price?

Held: Yes.  The fact that the agencies retained a discretion to fund Trade Me listings themselves did not mean there was no anti-competitive effect.  An arrangement as to a starting point or offer price has the purpose and likely effect of price-fixing.  A consensus need not be absolute in order to be anti-competitive.  

Royal Forest and Bird Protection Society of New Zealand Incorporated v Rangitira Developments Limited
23 October 2018
[2018] NZCA 445

Appeal allowed.  High Court declarations quashed.  Questions of law answered.  Costs orders.

Mining — access arrangement.  Mining — public reserves.  Statutory interpretation — implied repeal.

The appellant wishes to build an open cast mine on 104 ha of reserve land vested in the Buller District Council (the Council). 

Issue: In considering the application for access over the reserve land, is the Council required to make its decision under s 60(2) of the Crown Minerals Act 1991 in accordance with s 23 of the Reserves Act 1997?

Held: Yes.  Section 60(2) is a permissive provision that merely specifies that the Crown Minerals Act does not impose any constraints upon a landowner’s decision on access.  It does not free the landowner from other applicable legal constraints.  The requirements of s 23 must be given effect.  They are not merely factors to be taken into account.  Nor can the requirements of s 23 be balanced against other factors such as the economic benefits of the mining proposal or the enhancement of other natural areas outside the reserve. 

Issue: Applying s 22 of the Interpretation Act 1999, can the references to repealed legislation in s 109 of the Reserves Act be read as references to the Crown Minerals Act?

Held: No.  In 1991 the old mining regime based on Crown licencing was replaced with a fundamentally different regime requiring mining permit-holders to obtain resource consents and come to an arrangement for access to the land with the landowner.  Therefore, the High Court Judge erred in finding that s 109 of the Crown Minerals Act is a “ranking provision” that determines how any conflict between s 23 of the Reserves Act and s 60(2) of the Crown Minerals Act should be resolved.

Lundy v R
09 October 2018
[2018] NZCA 410
Media release

Appeal dismissed.

Criminal Law – murder.  Evidence – admissibility, expert evidence.  Criminal Practice and Procedure – lies direction, demeanour direction.

Mr Lundy was convicted of the murders of his wife Christine and daughter Amber following a retrial in 2015.  He appealed his conviction on several grounds.  First, the retrial should have been stayed because changes made to the Crown’s case amounted to an abuse of process.  Second, immunohistochemistry (IHC) evidence establishing the presence of central nervous system tissue (CNS tissue) on two stains on Mr Lundy’s shirt was inadmissible because of concerns relating to its reliability in the context of a criminal trial.  Third, messenger RNA (mRNA) evidence was inadmissible, which was relied on by the Crown to establish that the tissue on Mr Lundy’s shirt was human CNS tissue.  Fourth, in reliance on evidence relating to fuel consumption obtained after the retrial, Mr Lundy could not have committed the murders as there was insufficient petrol for him to have made the journey from Petone to Palmerston North and back.  Finally, there should have been demeanour and lies directions from the trial Judge. 

Whether the retrial should have been stayed as an abuse of process?  Held: no — the authorities relied on by the appellant do not apply once a retrial has been ordered; the essential elements of the Crown case remained the same; the seriousness of the crimes alleged militates against a claim of abuse of process and there was a very strong public interest in the retrial proceeding.

Whether the IHC evidence was admissible?  Held: the IHC evidence was admissible; all of the experts called at the retrial agreed that the IHC methodology and results showed that the tissue was CNS tissue.

Whether the mRNA evidence was admissible?  Held: the mRNA evidence should not have been admitted at the trial.  The evidence could not have been substantially helpful to the jury; the Crown was not able to point to widespread acceptance of the methodology; the evidence could not cross the reliability threshold in the absence of peer review, known or potential rate of error, standards, and general acceptance in the scientific community.

Whether the jury could conclude that that Mr Lundy was able to travel from Petone to Palmerston North to commit the murders?  Held: yes — the evidence in relation to fuel consumption that Mr Lundy relies on is not cogent.

Whether the Judge erred in failing to give a demeanour direction?  Held: the Judge did not err, as Mr Lundy’s conduct at the funeral of his wife and daughter and the jury’s request for a replay of his police interview did not give rise to the need for a demeanour direction.

Whether the Judge erred in not giving a lies direction?  Held: the Judge did not err; and Mr Lundy’s counsel had said to the Judge that a direction was not sought.

Whether the appeal should be dismissed because no substantial miscarriage of justice has actually occurred? Held: the proviso to s 385 of the Crimes Act 1961 should be applied; a guilty verdict was inevitable had the trial proceeded without the mRNA evidence because of the Crown’s IHC evidence and evidence of Christine’s DNA on Mr Lundy’s shirt; and the admission of the mRNA evidence did not have the effect of making the trial unfair.

NZME Limited v Commerce Commission
26 September 2018
[2018] NZCA 389
Media release

Appeal dismissed. Costs order.  Confidentiality restrictions.

Commercial law - Commerce Act 1986 Competition law - authorisation

The appellants are both major media providers in New Zealand, and sought clearance and authorisation for them to merge. The Commerce Commission declined clearance and authorisation, finding that there would be a substantial lessening of competition (SLC) in several relevant markets. Though it found substantial efficiencies would be generated by the transaction, these were reduced by the prospect of a paywall being introduced after the transaction, and outweighed by substantial losses of quality and plurality in media markets.

The High Court disagreed that there would be an SLC in one relevant market, and disagreed that a paywall was likely post-transaction. It otherwise agreed with the Commission, declining clearance and an authorisation. It mentioned that it was concerned by the remote but serious possibility that a foreign owner would take over the merged entity post-transaction and use it for political influence. On appeal to this Court the appellants only sought an authorisation; the Commission appealed the High Court’s findings on the paywall issue.

Held: appeal dismissed; costs order.

Does the Commerce Commission have jurisdiction to take into account non-economic detriments, such as plurality detriments? Yes.

The Commerce Act 1986 (the Act) deliberately permits authorisation for mergers on widely- defined public benefit grounds. The Act requires consideration of economic efficiencies arising from the merger, but other considerations may be relevant and even determinative. This conclusion is supported by the legislative history and case law.

Did the High Court err in its approach to assessing whether benefits or detriments were “likely”? The High Court erred by taking into account the remote risk that a foreign owner would exploit the merged entity for political purposes.  It did not otherwise err.

The Act requires that benefits and detriments be “likely”. This does not mean that they be more likely than not to occur, but simply that there is a real and substantial chance that they would occur post-merger. This is not a practical filter; it is a legal requirement. The High Court erred; the risk of a foreign owner exploiting the merged entity for political purposes was serious, but not likely, so it should not have entered the balancing exercise.

Should the High Court have granted authorisation?  No.

The High Court erred on the paywall issue. Competitive pressure between the appellants is the major reason for the lack of a paywall in the status quo, and the High Court erred in finding a paywall was otherwise unlikely. Further,  as  the  Commission  and  High  Court  found, New Zealand media markets are highly concentrated by international standards. The appellants are each other’s greatest competitors. The competitive tension between them incentivises more quality reporting; the transaction would lead to significant cuts in journalism and editorial resources. The transaction would also significantly reduce plurality in the media marketplace, providing for a diversity of voices and helping stop one voice from gaining too much influence over the political agenda

Minute of the Court: NZME Limited v Commerce Commission
25 September 2018