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 (PDF, 211 KB). 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.
Case name
Case number
[2024] NZCA 101
Date of Judgment
10 April 2024
Summary
FAMILY LAW – Practice and procedure, suppression
INJUNCTION – interim injunction
PRACTICE AND PROCEDURE – Contempt of court
This appeal relates to a video documentary, and associated articles, published by Newsroom in 2020. In the High Court an interim injunction was issued the day after publication of the story. The Court of Appeal allowed the appeal, quashed the injunction and reversed the associated costs order.
The documentary concerned the Oranga Tamariki practice of “reverse uplifts”, when Māori tamariki in need of care who had been placed with Pākehā foster parents were several years later removed from those homes and placed with wider whānau of their birth parents. The documentary focused on this practice in a particular case. In that case three Māori siblings had been placed with Pākehā foster parents, as Oranga Tamariki could not find a placement with a Māori whānau where they would all be together. The children had experienced significant trauma prior to placement and Oranga Tamariki concluded they needed a home for life so as not to re-traumatise them with future changes. A fourth sibling was later placed with the foster parents. When ngā tamariki were placed with the foster parents Oranga Tamariki promised it would assist them to provide for the children’s cultural needs. This never occurred.
Throughout the period prior to the removal, Oranga Tamariki had custody and guardianship of the children. This meant Oranga Tamariki was required to provide the Family Court with numerous plans, reviews and reports — updating the Court on how ngā tamariki were doing under the Ministry’s custody and guardianship.
For over a year the foster parents were praised by Oranga Tamariki. However, following the enactment of s 7AA in July 2019 and the allocation of new social workers, concerns were raised about the foster parents’ ability to raise the children and conversations were had with whānau and iwi about placement with them. Oranga Tamariki filed submissions in the Family Court expressing concern about the foster parents’ alleged inability and lack of commitment to promoting the children’s culture, and that the children were being emotionally and psychologically harmed. There were also allegations of physical abuse and racist attitudes. However an independent investigation concluded the allegations were over-stated and there was no abuse. The Court was never told of these findings. Oranga Tamariki approved a relative of the children’s biological mother, and their partner, as whānau caregivers for the children.
The video documentary is 35 minutes long and contains footage of the reverse uplift, an explanation of how and why ngā tamariki came to live with the foster parents, the allegations made against the foster parents, details of a complaint the foster parents made against Oranga Tamariki to the Ombudsman which was upheld, interviews with experts, information relating to the introduction of s 7AA, an interview with the foster parents, a recording of a meeting between the foster parents and Oranga Tamariki staff, and details of what occurred after the removal of ngā tamariki from the foster parents.
The Solicitor-General considered the documentary breached s 11B(3) of the Family Court Act, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court. She successfully applied for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then. Newsroom appealed the decision granting the injunction and a subsequent costs judgment.
The appeal concerned two key issues. First, do the impugned publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B? Secondly, if they do constitute a report of proceedings do they contain identifying information as per s 11C?
The Court first traversed the background to s 11B. Noting that in Television New Zealand v Solicitor-General this Court held that the word “proceedings” was not synonymous with “hearings”, and accordingly a ban on reports of Family Court proceedings (in place prior to s 11B) was not limited to reports of what went on in the courtroom but encompassed all matters before a court from the initiation of a case, through all its phases, to termination.
Did the publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B?
Held: Yes.
As in the High Court, the Court found that the publications did constitute a report of proceedings in the Family Court.
The Court outlaid the impact of the publications and noted that the story was clearly one of public interest. Part of the story’s impact came from its depiction of real-life events and emotions. Important too was not only the media’s right of freedom of expression, but also the foster parents’ right to tell their story and the public’s right to hear it. The Court considered the Judge overstated the role of the Family Court in the case. The Family Court did not make all the ultimate decisions in the case. The decisions to place ngā tamariki with the foster parents, to reverse the home for life policy, to implement the reverse uplift policy, the selection of the whānau caregivers and the removal of the children from the foster parents were all made by Oranga Tamariki.
Despite that, the Court held that relatively little content in the publication fell outside the scope of a “report of proceedings”. Television New Zealand remained good law as there was no suggestion that the legislature intended to depart from the judicially established meaning of the phrase. The normal and ordinary reading of the section and BORA considerations also supported that interpretation. Although the opinions of experts, misrepresentations made to the foster parents in a meeting with Oranga Tamariki and the children’s status as foster children would fall outside the scope of s 11B, the reasons for making custody/guardianship orders, misrepresentations in the court record and the content of the various plans and reviews were within the section’s scope. Despite not ultimately making the decisions, the Family Court exercised a reasonably significant degree of oversight. The publications were therefore reports of proceedings in the Family Court.
Did the publications contain identifying information as per s 11C?
Held: No.
The scheme of s 11B is that a report of any proceedings in the Family Court is not permitted without the leave of the Court if the report includes identifying information where a person under the age of 18 years is the subject of the proceedings or is referred to in proceedings. In this case ngā tamariki clearly came within that scope.
In the High Court the Judge concluded that the proceedings did contain identifying information. The cumulative effect of a number of features meant there was an appreciable risk that people in the children’s/foster parents’ wider community would identify them.
The Court agreed with the Judge’s formulation of “likely”, in the statutory phrase “likely to lead to the identification”, as meaning “an appreciable risk”. It agreed too that the anonymisation of names alone was not sufficient, as the section also specifies “particulars”. It also agreed there is a causative element, if the information capable of identifying the children is already known to the audience it must follow that publication of that information will not breach s 11B.
However, the Court disagreed with the Judge’s application of the test. It considered the fact the foster parents lived in a very small rural community and that the daily lives of the four Māori tamariki were visible were important and meant the decisions that had been made about them in the proceedings were self-evident to those who knew them. The details of the case would have been a major talking point in the small community, which was supportive of the foster parents’ cause, and the members of the community would have been aware of the critical features of the publications. This was especially so given the removal was witnessed by several members of the community. The local community was unlikely to have learnt anything new from the publications. A submission from the Solicitor-General that the foster father’s workmates would recognise him/his house was too speculative and involved only a small class of people. The Court did not consider the children’s North Island community would necessarily draw the inferences required to identify them without further information from ngā tamariki or their whānau.
The Court held that the publications did not contain any identifying information of ngā tamariki or connected persons. The proceedings never named ngā tamariki, the foster parents or their location (other than it was in the South Island and that the whānau caregivers live in the North Island), and the children and foster parents’ faces are blurred as are identifying particulars such as the name of a school on a lunch box.
The Court did not express a concluded view as to whether the Judge should have clarified the potentially offending aspects of the publications and identified possible remediation.
The appeal was allowed and the injunction quashed. The costs in the High Court were reversed and the respondent was ordered to pay the appellant’s costs.
INJUNCTION – interim injunction
PRACTICE AND PROCEDURE – Contempt of court
This appeal relates to a video documentary, and associated articles, published by Newsroom in 2020. In the High Court an interim injunction was issued the day after publication of the story. The Court of Appeal allowed the appeal, quashed the injunction and reversed the associated costs order.
The documentary concerned the Oranga Tamariki practice of “reverse uplifts”, when Māori tamariki in need of care who had been placed with Pākehā foster parents were several years later removed from those homes and placed with wider whānau of their birth parents. The documentary focused on this practice in a particular case. In that case three Māori siblings had been placed with Pākehā foster parents, as Oranga Tamariki could not find a placement with a Māori whānau where they would all be together. The children had experienced significant trauma prior to placement and Oranga Tamariki concluded they needed a home for life so as not to re-traumatise them with future changes. A fourth sibling was later placed with the foster parents. When ngā tamariki were placed with the foster parents Oranga Tamariki promised it would assist them to provide for the children’s cultural needs. This never occurred.
Throughout the period prior to the removal, Oranga Tamariki had custody and guardianship of the children. This meant Oranga Tamariki was required to provide the Family Court with numerous plans, reviews and reports — updating the Court on how ngā tamariki were doing under the Ministry’s custody and guardianship.
For over a year the foster parents were praised by Oranga Tamariki. However, following the enactment of s 7AA in July 2019 and the allocation of new social workers, concerns were raised about the foster parents’ ability to raise the children and conversations were had with whānau and iwi about placement with them. Oranga Tamariki filed submissions in the Family Court expressing concern about the foster parents’ alleged inability and lack of commitment to promoting the children’s culture, and that the children were being emotionally and psychologically harmed. There were also allegations of physical abuse and racist attitudes. However an independent investigation concluded the allegations were over-stated and there was no abuse. The Court was never told of these findings. Oranga Tamariki approved a relative of the children’s biological mother, and their partner, as whānau caregivers for the children.
The video documentary is 35 minutes long and contains footage of the reverse uplift, an explanation of how and why ngā tamariki came to live with the foster parents, the allegations made against the foster parents, details of a complaint the foster parents made against Oranga Tamariki to the Ombudsman which was upheld, interviews with experts, information relating to the introduction of s 7AA, an interview with the foster parents, a recording of a meeting between the foster parents and Oranga Tamariki staff, and details of what occurred after the removal of ngā tamariki from the foster parents.
The Solicitor-General considered the documentary breached s 11B(3) of the Family Court Act, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court. She successfully applied for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then. Newsroom appealed the decision granting the injunction and a subsequent costs judgment.
The appeal concerned two key issues. First, do the impugned publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B? Secondly, if they do constitute a report of proceedings do they contain identifying information as per s 11C?
The Court first traversed the background to s 11B. Noting that in Television New Zealand v Solicitor-General this Court held that the word “proceedings” was not synonymous with “hearings”, and accordingly a ban on reports of Family Court proceedings (in place prior to s 11B) was not limited to reports of what went on in the courtroom but encompassed all matters before a court from the initiation of a case, through all its phases, to termination.
Did the publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B?
Held: Yes.
As in the High Court, the Court found that the publications did constitute a report of proceedings in the Family Court.
The Court outlaid the impact of the publications and noted that the story was clearly one of public interest. Part of the story’s impact came from its depiction of real-life events and emotions. Important too was not only the media’s right of freedom of expression, but also the foster parents’ right to tell their story and the public’s right to hear it. The Court considered the Judge overstated the role of the Family Court in the case. The Family Court did not make all the ultimate decisions in the case. The decisions to place ngā tamariki with the foster parents, to reverse the home for life policy, to implement the reverse uplift policy, the selection of the whānau caregivers and the removal of the children from the foster parents were all made by Oranga Tamariki.
Despite that, the Court held that relatively little content in the publication fell outside the scope of a “report of proceedings”. Television New Zealand remained good law as there was no suggestion that the legislature intended to depart from the judicially established meaning of the phrase. The normal and ordinary reading of the section and BORA considerations also supported that interpretation. Although the opinions of experts, misrepresentations made to the foster parents in a meeting with Oranga Tamariki and the children’s status as foster children would fall outside the scope of s 11B, the reasons for making custody/guardianship orders, misrepresentations in the court record and the content of the various plans and reviews were within the section’s scope. Despite not ultimately making the decisions, the Family Court exercised a reasonably significant degree of oversight. The publications were therefore reports of proceedings in the Family Court.
Did the publications contain identifying information as per s 11C?
Held: No.
The scheme of s 11B is that a report of any proceedings in the Family Court is not permitted without the leave of the Court if the report includes identifying information where a person under the age of 18 years is the subject of the proceedings or is referred to in proceedings. In this case ngā tamariki clearly came within that scope.
In the High Court the Judge concluded that the proceedings did contain identifying information. The cumulative effect of a number of features meant there was an appreciable risk that people in the children’s/foster parents’ wider community would identify them.
The Court agreed with the Judge’s formulation of “likely”, in the statutory phrase “likely to lead to the identification”, as meaning “an appreciable risk”. It agreed too that the anonymisation of names alone was not sufficient, as the section also specifies “particulars”. It also agreed there is a causative element, if the information capable of identifying the children is already known to the audience it must follow that publication of that information will not breach s 11B.
However, the Court disagreed with the Judge’s application of the test. It considered the fact the foster parents lived in a very small rural community and that the daily lives of the four Māori tamariki were visible were important and meant the decisions that had been made about them in the proceedings were self-evident to those who knew them. The details of the case would have been a major talking point in the small community, which was supportive of the foster parents’ cause, and the members of the community would have been aware of the critical features of the publications. This was especially so given the removal was witnessed by several members of the community. The local community was unlikely to have learnt anything new from the publications. A submission from the Solicitor-General that the foster father’s workmates would recognise him/his house was too speculative and involved only a small class of people. The Court did not consider the children’s North Island community would necessarily draw the inferences required to identify them without further information from ngā tamariki or their whānau.
The Court held that the publications did not contain any identifying information of ngā tamariki or connected persons. The proceedings never named ngā tamariki, the foster parents or their location (other than it was in the South Island and that the whānau caregivers live in the North Island), and the children and foster parents’ faces are blurred as are identifying particulars such as the name of a school on a lunch box.
The Court did not express a concluded view as to whether the Judge should have clarified the potentially offending aspects of the publications and identified possible remediation.
The appeal was allowed and the injunction quashed. The costs in the High Court were reversed and the respondent was ordered to pay the appellant’s costs.
Case name
Case number
[2024] NZCA 92
Date of Judgment
09 April 2024
Summary
In CA371/2021, Attorney-General v Fleming, the appeal is allowed and the cross-appeal is dismissed.
In CA742/2021, Attorney-General v Humphreys, the appeal is allowed in part.
Employment Law. Definition of homeworker. Definition of work. Personal grievance. Penalty.
These appeals concern the basis on which the care of adult disabled people by family members has been funded since 2013. Ms Fleming and Mr Humphreys both care for their adult disabled children. Since 2013, they have received funding to do so in different forms. They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide. In addition, Ms Fleming advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Employment Court held that Ms Fleming and Mr Humphreys were both employees of the MOH and made declarations to that effect. However, it declined to award compensation to Ms Fleming and declined to impose a penalty on the Crown. The Crown appealed both decisions. Ms Fleming cross-appealed.
On the agreed issues for determination the Court concluded:
(a) Was Ms Fleming a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH, when she cared for her son?
Ms Fleming was not a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote.
(b) Was the Employment Court wrong in finding that the “well-established test for what constitutes work” as set out in Idea Services applies to Ms Fleming?
The Employment Court erred in finding that the “well-established test for what constitutes work” as set out in Idea Services applied to Ms Fleming.
(c) Did the Employment Court err in finding that Ms Fleming had a personal grievance for discrimination?
The Employment Court erred in finding that Ms Fleming had a personal grievance.
(d) Did the Employment Court err in finding that the MOH was not permitted under a family care policy or expressly authorised under any enactment to pay Ms Fleming for work she did during the time of pt 4A of the PHDA?
Part 4A precluded Ms Fleming from recovering arrears of wages and holiday pay.
(e) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA?
The Employment Court did not err in failing to consider the imposition of a penalty under s 134 of the ERA.
(f) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134 of the ERA?
It has proven unnecessary to consider this question.
(g) Did the Employment Court err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme?
The Employment Court did not err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme.
(h) Was Mr Humphreys a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH when he cared for his daughter during (i) the FFC period (April 2014 to August 2020) and (ii) the IF period (August 2020 onwards)?
Mr Humphreys (i) was a homeworker as defined in s 5 of the ERA and therefore an employee of the MOH when he cared for Ms Humphreys during the FFC period and (ii) was not a homeworker as defined in s 5 of the ERA when he cared for Ms Humphreys during the IF period.
(i) Was the Employment Court wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for (i) the FFC period and/or (ii) the IF period?The Employment Court was wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for the FFC and/or IF periods.
The Court made no order as to costs.
In CA742/2021, Attorney-General v Humphreys, the appeal is allowed in part.
Employment Law. Definition of homeworker. Definition of work. Personal grievance. Penalty.
These appeals concern the basis on which the care of adult disabled people by family members has been funded since 2013. Ms Fleming and Mr Humphreys both care for their adult disabled children. Since 2013, they have received funding to do so in different forms. They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide. In addition, Ms Fleming advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Employment Court held that Ms Fleming and Mr Humphreys were both employees of the MOH and made declarations to that effect. However, it declined to award compensation to Ms Fleming and declined to impose a penalty on the Crown. The Crown appealed both decisions. Ms Fleming cross-appealed.
On the agreed issues for determination the Court concluded:
(a) Was Ms Fleming a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH, when she cared for her son?
Ms Fleming was not a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote.
(b) Was the Employment Court wrong in finding that the “well-established test for what constitutes work” as set out in Idea Services applies to Ms Fleming?
The Employment Court erred in finding that the “well-established test for what constitutes work” as set out in Idea Services applied to Ms Fleming.
(c) Did the Employment Court err in finding that Ms Fleming had a personal grievance for discrimination?
The Employment Court erred in finding that Ms Fleming had a personal grievance.
(d) Did the Employment Court err in finding that the MOH was not permitted under a family care policy or expressly authorised under any enactment to pay Ms Fleming for work she did during the time of pt 4A of the PHDA?
Part 4A precluded Ms Fleming from recovering arrears of wages and holiday pay.
(e) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA?
The Employment Court did not err in failing to consider the imposition of a penalty under s 134 of the ERA.
(f) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134 of the ERA?
It has proven unnecessary to consider this question.
(g) Did the Employment Court err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme?
The Employment Court did not err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme.
(h) Was Mr Humphreys a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH when he cared for his daughter during (i) the FFC period (April 2014 to August 2020) and (ii) the IF period (August 2020 onwards)?
Mr Humphreys (i) was a homeworker as defined in s 5 of the ERA and therefore an employee of the MOH when he cared for Ms Humphreys during the FFC period and (ii) was not a homeworker as defined in s 5 of the ERA when he cared for Ms Humphreys during the IF period.
(i) Was the Employment Court wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for (i) the FFC period and/or (ii) the IF period?The Employment Court was wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for the FFC and/or IF periods.
The Court made no order as to costs.
Case number
[2024] NZCA 81
Date of Judgment
27 March 2024
Summary
COVID-19 Public Health Response Act 2020 - COVID-19 Public Health Response (Protection Framework) Order 2021-Removal of COVID-19 Vaccination Certificates -Alleged non-compliance with the New Zealand Bill of Rights Act 1990-Appeal dismissed
The appellant (FTBC) represents a group of churches whose right to manifest their religious beliefs under s 15 of the New Zealand Bill of Rights Act 1990 (NZBORA) was limited by the vaccination requirements imposed on gatherings by the COVID-19 Public Health Response (Protection Framework) Order 2021 (Order).
FTBC accepts that at the time the Order was made in November 2021, the limits on the s 15 right were justified. But FTBC says the justification ceased to be sufficient in early 2022 once the Omicron variant of COVID-19 was prevalent in the community, and that NZBORA required the relevant restrictions under the Order to be removed by mid-Februa1y 2022 at the latest. FTBC says that the date on which the relevant restrictions were removed - 4 April 2022 - unjustifiably prolonged the interference with s 15 NZBORA.
FTBC filed judicial review proceedings in March 2022, seeking review of the Order. It pleaded that in making the Order, and in keeping it under review, the Minister for COVID-19 Response (Minister) failed to (meaningfully) take into account whether the Order limited their s 15 right, and if so, whether the Order was a justified limitation on that right. The appellant sought declarations to that effect, and an order quashing the limiting measures of the Order.
Justice Gwyn dismissed the appellant's judicial review application. The Judge held, among other things, that the relevant measures of the Order were a demonstrably justified limitation of the appellant's s 15 NZBORA both at the time the Order was made in November 2021 and after Omicron was in the community in early 2022: Orewa Community Church v Minister for COVID-19 Response [2022] NZHC 2026, [2022] 3 NZLR 475 (High Court judgment).
The appellant appeals against part of the High Court judgment: the Judge's conclusion that the limit on s 15 NZBORA was demonstrably justified when Omicron was in the community. The appellant says that from mid-February 2022, when Omicron had out-competed the Delta variant, the limiting measures under Order were no longer demonstrably justified.
Held:
The central issue raised by this appeal is what NZBORA requires of a decision maker in changing circumstances which call into question the continuing justification for a rights-limiting measure, where that measure was demonstrably justified for the purposes of s 5 NZBORA at the time it was made.
Delegated legislation that is inconsistent with NZBORA cannot lawfully be made in the absence of an express provision in the empowering legislation which authorises that inconsistency. The COVID-19 Public Health Response Act 2020, which was the empowering legislation of the Order, did not authorise the Minister to make an order inconsistent with NZBORA. In this case, the Order was made lawfully, so remains lawful and valid unless and until revoked.
Where delegated legislation contains rights-limiting measures in order to support a response to a public emergency such as a pandemic, it is inherent in the rationale for those measures that they will not be justified indefinitely. The measures will be lawful if the limits on rights that they impose are demonstrably justified in a free and democratic society at the time the delegated legislation is made. But the expectation is that the emergency will pass, and the initial rationale for justifying the rights-limiting measures will cease to apply. NZBORA therefore requires the maker of delegated legislation to keep it under review to asce1iain whether there continues to be a sufficient justification for the rights-limiting measures it contains.
If a rights-limiting measure ceases to be justified, and therefore NZBORA compliant, the decision maker has a duty under NZBORA to take steps to amend or revoke the delegated legislation to make it NZBORA compliant. Precisely what steps the decision maker takes to achieve compliance will however depend on the relevant circumstances, the objectives of the empowering legislation, and the options available. NZBORA does not require decision makers to act precipitously without considering policy options, consulting, making policy decisions, and ensuring that new legislation is appropriately drafted to give effect to the decisions made.
The ultimate question for the courts in this context is whether the relevant decision maker failed to act consistently with their duties because they failed to take action to amend or revoke delegated legislation by the date on which the delegated legislation should have been amended to address non-compliance with NZBORA. Where, as is the case in this appeal, it is common ground that the rights-limiting measure ceased to be justified, and the measure has been modified in a manner that addresses that concern, the question will be whether failure to move faster was itself a failure to act consistently with NZBORA.
This is an inquiry the court will be in a position to undertake only if that issue has been adequately pleaded, and the decision maker has had a fair opportunity to respond to the case against them. In this appeal, because of the way in which the appellant's case was pleaded and presented in the High Court, this Court is not well placed to consider whether the Minister ought to have acted more promptly and what steps he should have taken. No evidence was provided which directly addressed this issue by either FTBC or (unsurprisingly, since the issue was not squarely raised) the Minister. In those circumstances, this Court cannot fairly or responsibly make a finding that the Minister had failed to act in accordance with NZBORA because he had failed to amend or revoke the Order by an earlier date.
That said, on the basis of the documents which are before this Court, the process adopted by the Minister to remove the relevant right-limiting measures by 4 April 2022 in the context of a fast-developing and complex public health crisis appears to have been prompt and efficient. This Court is not prepared to find that the time taken to make the Minister's decision, or the short delay from the date of the Minister's decision on 23 March 2022 to remove the right-limiting measures to 4 April 2022 when that decision became effective, were inconsistent with NZBORA.
The appeal is dismissed.
The appellant (FTBC) represents a group of churches whose right to manifest their religious beliefs under s 15 of the New Zealand Bill of Rights Act 1990 (NZBORA) was limited by the vaccination requirements imposed on gatherings by the COVID-19 Public Health Response (Protection Framework) Order 2021 (Order).
FTBC accepts that at the time the Order was made in November 2021, the limits on the s 15 right were justified. But FTBC says the justification ceased to be sufficient in early 2022 once the Omicron variant of COVID-19 was prevalent in the community, and that NZBORA required the relevant restrictions under the Order to be removed by mid-Februa1y 2022 at the latest. FTBC says that the date on which the relevant restrictions were removed - 4 April 2022 - unjustifiably prolonged the interference with s 15 NZBORA.
FTBC filed judicial review proceedings in March 2022, seeking review of the Order. It pleaded that in making the Order, and in keeping it under review, the Minister for COVID-19 Response (Minister) failed to (meaningfully) take into account whether the Order limited their s 15 right, and if so, whether the Order was a justified limitation on that right. The appellant sought declarations to that effect, and an order quashing the limiting measures of the Order.
Justice Gwyn dismissed the appellant's judicial review application. The Judge held, among other things, that the relevant measures of the Order were a demonstrably justified limitation of the appellant's s 15 NZBORA both at the time the Order was made in November 2021 and after Omicron was in the community in early 2022: Orewa Community Church v Minister for COVID-19 Response [2022] NZHC 2026, [2022] 3 NZLR 475 (High Court judgment).
The appellant appeals against part of the High Court judgment: the Judge's conclusion that the limit on s 15 NZBORA was demonstrably justified when Omicron was in the community. The appellant says that from mid-February 2022, when Omicron had out-competed the Delta variant, the limiting measures under Order were no longer demonstrably justified.
Held:
The central issue raised by this appeal is what NZBORA requires of a decision maker in changing circumstances which call into question the continuing justification for a rights-limiting measure, where that measure was demonstrably justified for the purposes of s 5 NZBORA at the time it was made.
Delegated legislation that is inconsistent with NZBORA cannot lawfully be made in the absence of an express provision in the empowering legislation which authorises that inconsistency. The COVID-19 Public Health Response Act 2020, which was the empowering legislation of the Order, did not authorise the Minister to make an order inconsistent with NZBORA. In this case, the Order was made lawfully, so remains lawful and valid unless and until revoked.
Where delegated legislation contains rights-limiting measures in order to support a response to a public emergency such as a pandemic, it is inherent in the rationale for those measures that they will not be justified indefinitely. The measures will be lawful if the limits on rights that they impose are demonstrably justified in a free and democratic society at the time the delegated legislation is made. But the expectation is that the emergency will pass, and the initial rationale for justifying the rights-limiting measures will cease to apply. NZBORA therefore requires the maker of delegated legislation to keep it under review to asce1iain whether there continues to be a sufficient justification for the rights-limiting measures it contains.
If a rights-limiting measure ceases to be justified, and therefore NZBORA compliant, the decision maker has a duty under NZBORA to take steps to amend or revoke the delegated legislation to make it NZBORA compliant. Precisely what steps the decision maker takes to achieve compliance will however depend on the relevant circumstances, the objectives of the empowering legislation, and the options available. NZBORA does not require decision makers to act precipitously without considering policy options, consulting, making policy decisions, and ensuring that new legislation is appropriately drafted to give effect to the decisions made.
The ultimate question for the courts in this context is whether the relevant decision maker failed to act consistently with their duties because they failed to take action to amend or revoke delegated legislation by the date on which the delegated legislation should have been amended to address non-compliance with NZBORA. Where, as is the case in this appeal, it is common ground that the rights-limiting measure ceased to be justified, and the measure has been modified in a manner that addresses that concern, the question will be whether failure to move faster was itself a failure to act consistently with NZBORA.
This is an inquiry the court will be in a position to undertake only if that issue has been adequately pleaded, and the decision maker has had a fair opportunity to respond to the case against them. In this appeal, because of the way in which the appellant's case was pleaded and presented in the High Court, this Court is not well placed to consider whether the Minister ought to have acted more promptly and what steps he should have taken. No evidence was provided which directly addressed this issue by either FTBC or (unsurprisingly, since the issue was not squarely raised) the Minister. In those circumstances, this Court cannot fairly or responsibly make a finding that the Minister had failed to act in accordance with NZBORA because he had failed to amend or revoke the Order by an earlier date.
That said, on the basis of the documents which are before this Court, the process adopted by the Minister to remove the relevant right-limiting measures by 4 April 2022 in the context of a fast-developing and complex public health crisis appears to have been prompt and efficient. This Court is not prepared to find that the time taken to make the Minister's decision, or the short delay from the date of the Minister's decision on 23 March 2022 to remove the right-limiting measures to 4 April 2022 when that decision became effective, were inconsistent with NZBORA.
The appeal is dismissed.
Case number
[2024] NZCA 74
Date of Judgment
26 March 2024
Summary
Judicial review – New Zealand Bill of Rights Act 1990 – COVID-19 – vaccination mandate – proportionality Appeal dismissed. No order for costs.
In April 2021, the Minister for COVID-19 made an order under the COVID-19 Public Health Response Act 2020 (the Act) prohibiting “affected persons” from carrying out work unless they were vaccinated (the Vaccination Order). In October 2021, a further order was made, extending the scope of the Vaccination Order to cover education workers. Exemptions were originally to be determined by a suitably qualified health practitioner. This was amended in November 2021 to be a centralised exemption process whereby all exemptions would be granted by the Director-General of Health based on specified criteria. The exemption criteria were narrow and based solely on medical grounds.
NZTSOS Incorporated (the appellant) is an association of education sector professionals and workers. It sought judicial review in the High Court challenging the lawfulness of the Vaccination Order requiring affected workers in the education sector to be vaccinated. Their arguments were based on the Order’s interference with s 11 of the New Zealand Bill of Rights Act 1990 (BORA), the right to refuse to undergo medical treatment. The Judge found that while the right to be free to undergo medical treatment assured by s 11 of BORA is a fundamental right, it is not absolute and is subject to reasonable limits that are demonstrably justified under s 5 of BORA. Further, the Crown had met the onus of showing that the vaccination mandate was justified, and that the exemption criteria were not unduly narrow nor applied in an unreasonable, irrational or overly rigid way. The appellant appealed the decision.
Issue: did the High Court err in determining that the right affirmed by s 11 of BORA was not absolute?
Held: No. New Health New Zealand Inc v South Taranaki District Council authoritatively determined that the s 11 right is not absolute and may be subject to reasonable limits in terms of s 5 of BORA. The White Paper on BORA had contemplated that the right would be subject to what became s 5. This position is consistent with comparative jurisdictions. Mandatory vaccination requirements were found not to violate the United States constitution in Jacobson v Commonwealth of Massachusetts, and the European Court of Human Rights recently upheld the decision of Czech legislature to require pre‑school children to be vaccinated against infectious diseases as a condition of attendance in Vavřička v Czech Republic.
Issue: did the High Court err in determining that the exemption criteria were not ultra vires the Act?
Held: No. Counsel clarified that they did not seek the relief sought in the pleadings, namely an order quashing or setting aside the exemption criteria, which would have left the mandate in place but with the challenged exemptions removed. Counsel also clarified that the complaint on this aspect of the appeal is that the exemptions were so narrowly crafted that the measure as a whole was unduly restrictive and therefore not compliant with BORA. This is more appropriately addressed under the fourth ground. As the pleaded relief was not desired, and the exemption criteria were plainly not ultra vires the Act, this ground of appeal failed.
Issue: did the High Court err in determining that the exemption criteria were not too narrow, and were not being unreasonably applied by the second respondent?
Held: No. The complaint on this ground of appeal also elaborated on and reinforced the challenge to the adequacy of the exemption criteria. This is most appropriately addressed in the fourth ground of appeal. While the appellant had also asserted there were multiple individuals who were unreasonably denied an exemption, this proceeding is not an appropriate vehicle for considering individual cases.
Issue: did the High Court err in determining that the limitation on the s 11 right of affected education workers was demonstrably justified under s 5 of BORA?
Held: No. The question was considered under the Hansen approach.
With regards to when the Order was extended to education workers on 22 October 2021, the objective of providing a safe environment for children to return to school and protecting them and the wider community from serious illness or death, as well as minimising the risk of the public health system being overwhelmed, was sufficiently important to justify interference with the BORA protected right. It was rational to conclude on the basis of available scientific evidence that requiring education workers to be vaccinated would reduce the risk of infection and transmission as a result of large numbers of people congregating in schools on a near daily basis.
The impairment of the right was no greater than necessary, considering that pleaded alternative measures that could have been used, such as RAT tests, social distancing, mask wearing and staying at home if unwell, do not involve any impairment of the right. The exemption criteria were specifically designed to cater for those few individuals who were at risk of suffering serious or life-threatening adverse side effects if vaccinated and were appropriately informed by international studies and worldwide experience of the Pfizer vaccine. Given the emphasis on achieving the highest practicable level of vaccination as a key protection against COVID-19, the Minister was entitled to reject more widely drawn criteria.
At that time, children under the age of 12 were not eligible to be vaccinated, and young people aged between 12 and 18 had only become eligible for vaccination in September 2021. Schools were therefore likely to be places where significant numbers of unvaccinated people would be present. The Minister also took into account that Māori and Pacific people traditionally have lower than average vaccination rates and were also likely to be disproportionately affected. Advice provided on 28 October 2021 was that 72 per cent of the eligible population and 50 per cent of Māori had received two doses of the vaccine. For those reasons, the mandate was a proportionate measure at the time it was made.
With regards to the Vaccination Order following the emergence of Omicron, despite the reduced protection through vaccination against what had become the dominant strain of COVID-19, vaccination was still an important tool to protect the vulnerable, slow the inevitable spread of the virus and reduce the risk of overwhelming the health system. The Minister was entitled and arguably required to take a precautionary approach in his decision-making. For that reason, it was held that the Order remained proportionate and demonstrably justified prior to mid-February 2022.
While this is sufficient to dispose of the appeal, it was also noted that potential downstream risks of the vaccine are relevant to the question of proportionality but do not in this case displace the overall conclusion. There is ample evidence that the Pfizer vaccine is generally safe. However, the narrow scope of the exemption criteria meant that a small number of affected workers experienced particularly harsh outcomes. Considering that only around three per cent of teachers remained unvaccinated, it was expected that there should be consideration of whether the incremental benefit of maintaining the Vaccination Order continued to justify the impairment of their fundamental right to refuse to undergo medical treatment. No discussion of this was seen in memoranda or briefing materials or Cabinet papers.
In April 2021, the Minister for COVID-19 made an order under the COVID-19 Public Health Response Act 2020 (the Act) prohibiting “affected persons” from carrying out work unless they were vaccinated (the Vaccination Order). In October 2021, a further order was made, extending the scope of the Vaccination Order to cover education workers. Exemptions were originally to be determined by a suitably qualified health practitioner. This was amended in November 2021 to be a centralised exemption process whereby all exemptions would be granted by the Director-General of Health based on specified criteria. The exemption criteria were narrow and based solely on medical grounds.
NZTSOS Incorporated (the appellant) is an association of education sector professionals and workers. It sought judicial review in the High Court challenging the lawfulness of the Vaccination Order requiring affected workers in the education sector to be vaccinated. Their arguments were based on the Order’s interference with s 11 of the New Zealand Bill of Rights Act 1990 (BORA), the right to refuse to undergo medical treatment. The Judge found that while the right to be free to undergo medical treatment assured by s 11 of BORA is a fundamental right, it is not absolute and is subject to reasonable limits that are demonstrably justified under s 5 of BORA. Further, the Crown had met the onus of showing that the vaccination mandate was justified, and that the exemption criteria were not unduly narrow nor applied in an unreasonable, irrational or overly rigid way. The appellant appealed the decision.
Issue: did the High Court err in determining that the right affirmed by s 11 of BORA was not absolute?
Held: No. New Health New Zealand Inc v South Taranaki District Council authoritatively determined that the s 11 right is not absolute and may be subject to reasonable limits in terms of s 5 of BORA. The White Paper on BORA had contemplated that the right would be subject to what became s 5. This position is consistent with comparative jurisdictions. Mandatory vaccination requirements were found not to violate the United States constitution in Jacobson v Commonwealth of Massachusetts, and the European Court of Human Rights recently upheld the decision of Czech legislature to require pre‑school children to be vaccinated against infectious diseases as a condition of attendance in Vavřička v Czech Republic.
Issue: did the High Court err in determining that the exemption criteria were not ultra vires the Act?
Held: No. Counsel clarified that they did not seek the relief sought in the pleadings, namely an order quashing or setting aside the exemption criteria, which would have left the mandate in place but with the challenged exemptions removed. Counsel also clarified that the complaint on this aspect of the appeal is that the exemptions were so narrowly crafted that the measure as a whole was unduly restrictive and therefore not compliant with BORA. This is more appropriately addressed under the fourth ground. As the pleaded relief was not desired, and the exemption criteria were plainly not ultra vires the Act, this ground of appeal failed.
Issue: did the High Court err in determining that the exemption criteria were not too narrow, and were not being unreasonably applied by the second respondent?
Held: No. The complaint on this ground of appeal also elaborated on and reinforced the challenge to the adequacy of the exemption criteria. This is most appropriately addressed in the fourth ground of appeal. While the appellant had also asserted there were multiple individuals who were unreasonably denied an exemption, this proceeding is not an appropriate vehicle for considering individual cases.
Issue: did the High Court err in determining that the limitation on the s 11 right of affected education workers was demonstrably justified under s 5 of BORA?
Held: No. The question was considered under the Hansen approach.
With regards to when the Order was extended to education workers on 22 October 2021, the objective of providing a safe environment for children to return to school and protecting them and the wider community from serious illness or death, as well as minimising the risk of the public health system being overwhelmed, was sufficiently important to justify interference with the BORA protected right. It was rational to conclude on the basis of available scientific evidence that requiring education workers to be vaccinated would reduce the risk of infection and transmission as a result of large numbers of people congregating in schools on a near daily basis.
The impairment of the right was no greater than necessary, considering that pleaded alternative measures that could have been used, such as RAT tests, social distancing, mask wearing and staying at home if unwell, do not involve any impairment of the right. The exemption criteria were specifically designed to cater for those few individuals who were at risk of suffering serious or life-threatening adverse side effects if vaccinated and were appropriately informed by international studies and worldwide experience of the Pfizer vaccine. Given the emphasis on achieving the highest practicable level of vaccination as a key protection against COVID-19, the Minister was entitled to reject more widely drawn criteria.
At that time, children under the age of 12 were not eligible to be vaccinated, and young people aged between 12 and 18 had only become eligible for vaccination in September 2021. Schools were therefore likely to be places where significant numbers of unvaccinated people would be present. The Minister also took into account that Māori and Pacific people traditionally have lower than average vaccination rates and were also likely to be disproportionately affected. Advice provided on 28 October 2021 was that 72 per cent of the eligible population and 50 per cent of Māori had received two doses of the vaccine. For those reasons, the mandate was a proportionate measure at the time it was made.
With regards to the Vaccination Order following the emergence of Omicron, despite the reduced protection through vaccination against what had become the dominant strain of COVID-19, vaccination was still an important tool to protect the vulnerable, slow the inevitable spread of the virus and reduce the risk of overwhelming the health system. The Minister was entitled and arguably required to take a precautionary approach in his decision-making. For that reason, it was held that the Order remained proportionate and demonstrably justified prior to mid-February 2022.
While this is sufficient to dispose of the appeal, it was also noted that potential downstream risks of the vaccine are relevant to the question of proportionality but do not in this case displace the overall conclusion. There is ample evidence that the Pfizer vaccine is generally safe. However, the narrow scope of the exemption criteria meant that a small number of affected workers experienced particularly harsh outcomes. Considering that only around three per cent of teachers remained unvaccinated, it was expected that there should be consideration of whether the incremental benefit of maintaining the Vaccination Order continued to justify the impairment of their fundamental right to refuse to undergo medical treatment. No discussion of this was seen in memoranda or briefing materials or Cabinet papers.
Case name
Case number
[2024] NZCA 67
Date of Judgment
21 March 2024
Summary
Mr Putua was arbitrarily detained for 33 days in breach of s 22 of the Bill of Rights Act. In the High Court he sought
and was awarded compensation under the Bill of Rights Act. This case was an appeal, by the Attorney-General, against
that decision. The appeal was allowed.
Mr Putua was sentenced to four and a half years imprisonment on 16 charges. On the lead offence he was sentenced to
three years and four months’ imprisonment, on another charge he was given a cumulative sentence of one year and two
months’ imprisonment and on the rest of the charges concurrent sentences were imposed. When preparing Mr Putua’s
committal warrant, a deputy registrar incorrectly recorded in the draft warrant that a three-month sentence for one of the
charges was cumulative rather than concurrent. The sentencing Judge did not notice this error and signed the warrant.
When the authorities realised the mistake and issued a replacement warrant Mr Putua had been imprisoned for 33 days
in excess of the sentence that was imposed.
In the High Court, Mr Putua sought to hold the Crown liable for the actions of the Deputy Registrar in preparing the
warrant. The Judge’s actions were not subject to the claim, as they were covered by judicial immunity. The case was
heard by Ellis J. She found Mr Putua had been unlawfully, and therefore arbitrarily, detained as a result of the Deputy
Registrar’s actions, issued a declaration to this effect and awarded him damages of $11,000 and interest.
As it did in the High Court, in this Court the Crown accepted that Mr Putua was arbitrarily detained. The issues on
appeal were whether the actions of the Deputy Registrar in preparing the warrant were covered by the same immunity
as the actions of the District Court Judge in signing it? And, if the Deputy Registrar’s actions were not subject to
immunity, whether the Judge’s signing of the warrant constituted an intervening cause breaking the causal nexus
between the drafting of the warrant and the arbitrary detention?
Were the actions of the Deputy Registrar subject to judicial immunity? Held: Yes.
The Court first provided an explanation of judicial immunity, discussing the immunity under common law and s 6(5) of
the Crown Proceedings Act, a Law Commission report written in response to Baigent’s case, Attorney-General v
Chapman, and Thompson v Attorney-General.
The High Court Judge had considered that because the preparation of the warrant was a mandatory task under s 91 of
the Sentencing Act, and its contents predetermined, the drafting of it did not involve any exercise of discretion and, in
her view, citing Royal Aquarium and Summer and Winter Garden Society Ltd, that meant the Deputy Registrar’s actions
were not a judicial act. Because the Judge also considered there were no policy reasons to justify judicial immunity
applying to administrative acts, such as the preparing of the warrant, she held the Deputy Registrar’s actions were not
subject to judicial immunity and thus the Crown was liable for the Deputy Registrar’s error.
The Court of Appeal considered it would be anomalous there being two errors relating to the warrant, that one of them
was protected by immunity and the other not. A further anomaly was that of the two actors, it was the Judge who was
arguably more culpable given that he was the person ultimately responsible for the warrant and the Deputy Registrar
was his sub-ordinate.
The Court also considered that the adoption in the High Court of a test which delineates the concept of a judicial act by
reference to the existence of a discretion was problematic. That test would mean the Judge’s signing of the warrant was
also not a judicial act, despite it undoubtably being one. The case law also did not support this test.
Instead, the Court considered the correct test involved an examination of the role of registrars and deputy registrars in
the context of judicial business and the nature of the particular task, not how it was executed. The task at issue was one
which gave effect to a judicial decision and assisted the Judge in the exercise of his statutory powers. The case law
supported the view that judicial acts and administrative acts of non-judges which give effect to judicial decisions or
undertaken in connection with the execution of the judicial process should both be covered by judicial immunity. If the
converse was the case there would be a risk of collateral attacks on judicial decisions and it would be problematic for judicial independence, problems arising for example from the conflict of interest that would result if the Crown was
liable for the actions of one of its employees in undertaking a task at the direction of a judge.
Regarding the possibility of an alternative remedy, the Court noted that although the appeal process would not
necessarily have remedied Mr Putua’s issue (he in fact engaged counsel for a sentence appeal), and that Mr Putua was
not eligible for a compensatory payment under the Cabinet Compensation Guidelines for Wrongful Conviction and
Detention, he could have made an application under the Habeas Corpus Act. The possibility of this non-compensatory
remedy was not a panacea to art 9(5) of the ICCPR. However, even if the appeal was dismissed and the compensation
award upheld, the denial of relief for the error of the Judge would still have been in breach of international obligations.
The Court held that the Deputy Registrar’s actions were subject to judicial immunity and thus the Crown was not liable
for the error. This meant the appeal had to be allowed. The Court however still considered the second issue, despite it
not being dispositive.
Did the Judge’s signing of the warrant constitute an intervening cause? Held: No.
The High Court Judge rejected the contention that the sentencing Judge’s signature was an intervening act, primarily on
the grounds that as a matter of law it was not necessary for a warrant to be signed by a judge in order for it to be valid.
The Court of Appeal considered that whether an unsigned warrant is valid is debatable but did not express a concluded
view on the matter as it found for different reasons that the Judge’s signature was not an intervening cause.
The Court emphasised the importance of the Judge’s signature on the committal warrant. It noted a judge’s signature is
a statutory requirement, is a safeguard and endorsement as to the correctness of the warrant, and although it is not the
underlying basis for detention a warrant is nevertheless a formal document of considerable consequence. It considered
had the Judge’s signature been absent from the warrant the prison authorities would have likely conducted further
inquiries and found the error. The Judge’s signature was thus not void of causative effect.
However, applying orthodox principles of causation, the Court considered that whilst the Judge’s signature was a cause
of the unlawful detention so too was the error of the Deputy Registrar. They were both contributing causes. Although
the Court considered that in some senses the Judge bore the primary responsibility, as a matter of impression it did not
consider that his failure to check constituted an intervening cause completely breaking the chain of causation. The
Judge’s actions were directly precipitated by and within the scope of the risk created by the Deputy Registrar’s error,
and so that error was an operative cause of Mr Putua’s arbitrary detention.
The appeal was allowed.
Costs were not awarded against Mr Putua as he was legally aided and there were no exceptional circumstances which
meant a costs order should be made.
and was awarded compensation under the Bill of Rights Act. This case was an appeal, by the Attorney-General, against
that decision. The appeal was allowed.
Mr Putua was sentenced to four and a half years imprisonment on 16 charges. On the lead offence he was sentenced to
three years and four months’ imprisonment, on another charge he was given a cumulative sentence of one year and two
months’ imprisonment and on the rest of the charges concurrent sentences were imposed. When preparing Mr Putua’s
committal warrant, a deputy registrar incorrectly recorded in the draft warrant that a three-month sentence for one of the
charges was cumulative rather than concurrent. The sentencing Judge did not notice this error and signed the warrant.
When the authorities realised the mistake and issued a replacement warrant Mr Putua had been imprisoned for 33 days
in excess of the sentence that was imposed.
In the High Court, Mr Putua sought to hold the Crown liable for the actions of the Deputy Registrar in preparing the
warrant. The Judge’s actions were not subject to the claim, as they were covered by judicial immunity. The case was
heard by Ellis J. She found Mr Putua had been unlawfully, and therefore arbitrarily, detained as a result of the Deputy
Registrar’s actions, issued a declaration to this effect and awarded him damages of $11,000 and interest.
As it did in the High Court, in this Court the Crown accepted that Mr Putua was arbitrarily detained. The issues on
appeal were whether the actions of the Deputy Registrar in preparing the warrant were covered by the same immunity
as the actions of the District Court Judge in signing it? And, if the Deputy Registrar’s actions were not subject to
immunity, whether the Judge’s signing of the warrant constituted an intervening cause breaking the causal nexus
between the drafting of the warrant and the arbitrary detention?
Were the actions of the Deputy Registrar subject to judicial immunity? Held: Yes.
The Court first provided an explanation of judicial immunity, discussing the immunity under common law and s 6(5) of
the Crown Proceedings Act, a Law Commission report written in response to Baigent’s case, Attorney-General v
Chapman, and Thompson v Attorney-General.
The High Court Judge had considered that because the preparation of the warrant was a mandatory task under s 91 of
the Sentencing Act, and its contents predetermined, the drafting of it did not involve any exercise of discretion and, in
her view, citing Royal Aquarium and Summer and Winter Garden Society Ltd, that meant the Deputy Registrar’s actions
were not a judicial act. Because the Judge also considered there were no policy reasons to justify judicial immunity
applying to administrative acts, such as the preparing of the warrant, she held the Deputy Registrar’s actions were not
subject to judicial immunity and thus the Crown was liable for the Deputy Registrar’s error.
The Court of Appeal considered it would be anomalous there being two errors relating to the warrant, that one of them
was protected by immunity and the other not. A further anomaly was that of the two actors, it was the Judge who was
arguably more culpable given that he was the person ultimately responsible for the warrant and the Deputy Registrar
was his sub-ordinate.
The Court also considered that the adoption in the High Court of a test which delineates the concept of a judicial act by
reference to the existence of a discretion was problematic. That test would mean the Judge’s signing of the warrant was
also not a judicial act, despite it undoubtably being one. The case law also did not support this test.
Instead, the Court considered the correct test involved an examination of the role of registrars and deputy registrars in
the context of judicial business and the nature of the particular task, not how it was executed. The task at issue was one
which gave effect to a judicial decision and assisted the Judge in the exercise of his statutory powers. The case law
supported the view that judicial acts and administrative acts of non-judges which give effect to judicial decisions or
undertaken in connection with the execution of the judicial process should both be covered by judicial immunity. If the
converse was the case there would be a risk of collateral attacks on judicial decisions and it would be problematic for judicial independence, problems arising for example from the conflict of interest that would result if the Crown was
liable for the actions of one of its employees in undertaking a task at the direction of a judge.
Regarding the possibility of an alternative remedy, the Court noted that although the appeal process would not
necessarily have remedied Mr Putua’s issue (he in fact engaged counsel for a sentence appeal), and that Mr Putua was
not eligible for a compensatory payment under the Cabinet Compensation Guidelines for Wrongful Conviction and
Detention, he could have made an application under the Habeas Corpus Act. The possibility of this non-compensatory
remedy was not a panacea to art 9(5) of the ICCPR. However, even if the appeal was dismissed and the compensation
award upheld, the denial of relief for the error of the Judge would still have been in breach of international obligations.
The Court held that the Deputy Registrar’s actions were subject to judicial immunity and thus the Crown was not liable
for the error. This meant the appeal had to be allowed. The Court however still considered the second issue, despite it
not being dispositive.
Did the Judge’s signing of the warrant constitute an intervening cause? Held: No.
The High Court Judge rejected the contention that the sentencing Judge’s signature was an intervening act, primarily on
the grounds that as a matter of law it was not necessary for a warrant to be signed by a judge in order for it to be valid.
The Court of Appeal considered that whether an unsigned warrant is valid is debatable but did not express a concluded
view on the matter as it found for different reasons that the Judge’s signature was not an intervening cause.
The Court emphasised the importance of the Judge’s signature on the committal warrant. It noted a judge’s signature is
a statutory requirement, is a safeguard and endorsement as to the correctness of the warrant, and although it is not the
underlying basis for detention a warrant is nevertheless a formal document of considerable consequence. It considered
had the Judge’s signature been absent from the warrant the prison authorities would have likely conducted further
inquiries and found the error. The Judge’s signature was thus not void of causative effect.
However, applying orthodox principles of causation, the Court considered that whilst the Judge’s signature was a cause
of the unlawful detention so too was the error of the Deputy Registrar. They were both contributing causes. Although
the Court considered that in some senses the Judge bore the primary responsibility, as a matter of impression it did not
consider that his failure to check constituted an intervening cause completely breaking the chain of causation. The
Judge’s actions were directly precipitated by and within the scope of the risk created by the Deputy Registrar’s error,
and so that error was an operative cause of Mr Putua’s arbitrary detention.
The appeal was allowed.
Costs were not awarded against Mr Putua as he was legally aided and there were no exceptional circumstances which
meant a costs order should be made.
Case number
[2024] NZCA 51
Date of Judgment
11 March 2024
Summary
Criminal law - Resource Management Act 1991 - definition of wetland - definition of natural wetland - definition of significant natural wetland - conviction appeal
Appeals allowed (both appellants) in part. Convictions in respect of charges 2, 4-8, 10, 11, and 14-34 are set aside and judgments of acquittal entered.
Appeals dismissed (both appellants) in respect of remaining charges.
Submissions sought on appropriate substitution to sentences/orders and costs.
The appellants were found guilty by Judge Dwyer in the District Court of 35 offences under the Resource Management Act 1991, relating, substantially, to activities within four areas on a property owned by one of the appellants alleged to be "wetlands". An appeal to the High Court was unsuccessful.
Whether the conviction appeal should be granted? Held: Yes, in part.
The parties agree that the charges relating to Area 4 cannot be proven beyond a reasonable doubt. The convictions on charges 4, 16, 32, and 34 are set aside and judgments of acquittal are entered.
The evidence has not established, beyond a reasonable doubt, the existence of fauna adapted to wet conditions in Areas 1, 3A, 3B, or 3C. This means that the Council has failed to establish beyond a reasonable doubt that those Areas were "wetlands", or "significant natural wetlands". Alternatively, the method used to delineate the alleged wetlands was not appropriate in the context of a criminal prosecution and the "damp gully head" exception was not disproven. The convictions on charges 6-7, 15, 17, 19-20, and 24-30 (relating to alleged natural wetlands in those areas), charges 2, 10-11, 18, and 21-23 (relating to alleged significant natural wetlands in those areas), and charge 8 (insofar as it relates to Area 1) are set aside and judgments of acquittal are entered.
In relation to one section (Plot 15) of Area 2, the evidence is not sufficient to establish the presence of animals adapted to wet conditions. In relation to the remainder of Area 2 (Plot 8), the evidence does establish the presence of animals adapted to wet conditions. However, the stock watering exception is established, meaning that Area 2 does not meet the definition of natural wetland. The convictions on charges 5, 8, 14, 31, and 3 3 are set aside and judgments of acquittal are entered.
The only remaining charges that survive the appeal are charges 1 and 9 (relating to Area 3C), charges 3, 12, and 13 (relating to disposition of soils/sediment in the bed of a river or where it could enter water), and charge 35 (relating to contravention of an Environment Court enforcement order). None of these charges depended on the establishment beyond a reasonable doubt of wetlands, natural wetlands, or significant natural wetlands.
The Court sought submissions from the parties on the appropriate sentences to impose on each appellant, in light of the outcome of the appeal, and also on costs.
Appeals allowed (both appellants) in part. Convictions in respect of charges 2, 4-8, 10, 11, and 14-34 are set aside and judgments of acquittal entered.
Appeals dismissed (both appellants) in respect of remaining charges.
Submissions sought on appropriate substitution to sentences/orders and costs.
The appellants were found guilty by Judge Dwyer in the District Court of 35 offences under the Resource Management Act 1991, relating, substantially, to activities within four areas on a property owned by one of the appellants alleged to be "wetlands". An appeal to the High Court was unsuccessful.
Whether the conviction appeal should be granted? Held: Yes, in part.
The parties agree that the charges relating to Area 4 cannot be proven beyond a reasonable doubt. The convictions on charges 4, 16, 32, and 34 are set aside and judgments of acquittal are entered.
The evidence has not established, beyond a reasonable doubt, the existence of fauna adapted to wet conditions in Areas 1, 3A, 3B, or 3C. This means that the Council has failed to establish beyond a reasonable doubt that those Areas were "wetlands", or "significant natural wetlands". Alternatively, the method used to delineate the alleged wetlands was not appropriate in the context of a criminal prosecution and the "damp gully head" exception was not disproven. The convictions on charges 6-7, 15, 17, 19-20, and 24-30 (relating to alleged natural wetlands in those areas), charges 2, 10-11, 18, and 21-23 (relating to alleged significant natural wetlands in those areas), and charge 8 (insofar as it relates to Area 1) are set aside and judgments of acquittal are entered.
In relation to one section (Plot 15) of Area 2, the evidence is not sufficient to establish the presence of animals adapted to wet conditions. In relation to the remainder of Area 2 (Plot 8), the evidence does establish the presence of animals adapted to wet conditions. However, the stock watering exception is established, meaning that Area 2 does not meet the definition of natural wetland. The convictions on charges 5, 8, 14, 31, and 3 3 are set aside and judgments of acquittal are entered.
The only remaining charges that survive the appeal are charges 1 and 9 (relating to Area 3C), charges 3, 12, and 13 (relating to disposition of soils/sediment in the bed of a river or where it could enter water), and charge 35 (relating to contravention of an Environment Court enforcement order). None of these charges depended on the establishment beyond a reasonable doubt of wetlands, natural wetlands, or significant natural wetlands.
The Court sought submissions from the parties on the appropriate sentences to impose on each appellant, in light of the outcome of the appeal, and also on costs.
Case name
Case number
[2023] NZCA 589
Summary
The appeals are dismissed.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
Media Release
- MR [2023] NZCA 589 (PDF, 226 KB)
Case name
Case number
[2024] NZCA 45
Date of Judgment
06 March 2024
Summary
Criminal law - criminal procedure - extension of time - sentence appeal - manifestly excessive - minimum period of imprisonment - murder - youth - fresh evidence
Case number
[2024] NZCA 19
Date of Judgment
06 March 2024
Summary
Employment - Minimum wage
Mount Cook Airline Ltd employs both part-time and full-time cabin crew. The part-time cabin crew work six days over a fortnightly pay period rather than the nine days worked by full-time cabin crew in exchange for a pro-rata (2/3) salary. E tū Inc, the union for the cabin crew, successfully challenged the pro-rata approach to calculating the salaries of part-time cabin crew in the Employment Court. The Employment Court held that cl 4(d) of the Minimum Wage Order 2021 (the Order) required that the part-time cabin crew be paid at least the full fortnightly minimum wage rate specified in the Order regardless of the number of hours actually worked per fortnight. Mount Cook appealed.
The appeal is allowed. The Employment Court erred in its interpretation of cl 4(d) of the Order as it applies to part-time salaried employees. Clause 4(d) specifies a minimum “rate” of wages, not an absolute monetary sum. The use of the word “rate” envisages a proportional relationship between two things, with one of those things commonly being a unit of time (as in this case). The fortnightly minimum wage rate is payable to an employee who works 80 hours over a fortnightly period and must be pro-rated for an employee who works less than that. The pro-rata interpretation of clause 4(d) is supported by the plain meaning of the clause, the statutory context, the statutory purpose, the legislative history and previous case law.
Any order as to costs that has been made in the Employment Court is set aside. Costs in the Employment Court are to be determined by that Court in light of this judgment.
The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
Mount Cook Airline Ltd employs both part-time and full-time cabin crew. The part-time cabin crew work six days over a fortnightly pay period rather than the nine days worked by full-time cabin crew in exchange for a pro-rata (2/3) salary. E tū Inc, the union for the cabin crew, successfully challenged the pro-rata approach to calculating the salaries of part-time cabin crew in the Employment Court. The Employment Court held that cl 4(d) of the Minimum Wage Order 2021 (the Order) required that the part-time cabin crew be paid at least the full fortnightly minimum wage rate specified in the Order regardless of the number of hours actually worked per fortnight. Mount Cook appealed.
The appeal is allowed. The Employment Court erred in its interpretation of cl 4(d) of the Order as it applies to part-time salaried employees. Clause 4(d) specifies a minimum “rate” of wages, not an absolute monetary sum. The use of the word “rate” envisages a proportional relationship between two things, with one of those things commonly being a unit of time (as in this case). The fortnightly minimum wage rate is payable to an employee who works 80 hours over a fortnightly period and must be pro-rated for an employee who works less than that. The pro-rata interpretation of clause 4(d) is supported by the plain meaning of the clause, the statutory context, the statutory purpose, the legislative history and previous case law.
Any order as to costs that has been made in the Employment Court is set aside. Costs in the Employment Court are to be determined by that Court in light of this judgment.
The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
Case name
Case number
[2024] NZCA 24
Date of Judgment
21 February 2024
Summary
Intellectual property — Copyright
Relationship property — Division of “balance of matrimonial property” — Personal property — Separate Property
An extension of time is granted for filing the notice of appeal.
The approved questions of law on appeal are answered as follows:
(1) Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Yes.
(2) If the Copyrights are property, how should they be classified in terms of the PRA?
The Copyrights should be classified as relationship property.
(3) If the Copyrights are property, how should they be treated in terms of the PRA?
The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
The assessment of an appropriate compensatory adjustment is remitted to the Family Court for determination.
The appellant must pay the respondent costs for a standard appeal on a band A basis, together with usual disbursements.
We certify for second counsel.
Ms Alalääkkölä is a successful artist. She created a number of artworks during the course of her 20-year marriage to Mr Palmer (the Artworks), many of which were sold to third parties.
It was common ground on appeal that the Artworks that remained in the possession of either party at the end of the relationship are relationship property in terms of the Property (Relationships) Act 1976 (PRA). Rather, the key issue on appeal was whether the copyrights in the Artworks (the Copyrights) are relationship property or Ms Alalääkkölä’s separate property. Further, if the Copyrights are relationship property, how they should be treated under the PRA regime? Ms Alalääkkölä sought to retain sole ownership of the Copyrights, with a compensatory adjustment being made to Mr Palmer from other relationship property. Mr Palmer, on the other hand, sought ownership of some of the Copyrights, so that he could commercialise them.
The Family Court found that the Copyrights were Ms Alalääkkölä’s separate property. On appeal, the High Court found that the Copyrights were relationship property, and remitted the issue of how they should be treated under the PRA to the Family Court. Ms Alalääkkölä appealed to this Court, having been granted leave to do so by the High Court on the approved questions of law.
Issue one: Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Held: Yes.
The Copyrights fall within s 2(c) and (e) of the PRA definition of “property”.
Issue two: If the Copyrights are property, how should they be classified in terms of the PRA?
Held: The Copyrights should be classified as relationship property.
Ms Alalääkkölä submitted, in essence, that even if some of the bundle of rights and interests comprising the Copyrights were acquired during the relationship, the relevant bundle of rights and interests also includes (or is inextricably linked to) other property rights that pre-date or post-date the relationship. The inclusion of these takes the Copyrights outside the definition of relationship property and requires that they be categorised as separate property.
The Court rejected each of Ms Alalääkkölä’s arguments. First, the bundle of rights associated with the Copyrights was distinct from Ms Alalääkkölä’s personal skills and qualifications. Although those skills were used in the creation of the Artworks, they are distinct from the Copyrights that attach to the Artworks. Second, Ms Alalääkkölä’s art business, which was commenced prior to her relationship, is distinct from the Copyrights. Third, the fact that income may be generated, post-separation, from commercialisation of the Copyrights does not assist in determining the classification of the Copyrights under the PRA. Finally, there is nothing in either the Copyright Act 1994 or the PRA to suggest that Parliament intended to remove intellectual property from the reach of the PRA.
As the Copyrights were all acquired by Ms Alalääkkölä during the relationship (namely when each of the Artworks was created by her) they fell within the definition of relationship property in s 8(e) of the PRA (“all property acquired by either spouse or partner after their marriage, civil union, or de facto relationship began”).
Issue three: If the Copyrights are property, how should they be treated in terms of the PRA?
Held: The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
Pursuant to s 21 of the Copyright Act, the author of a work is the first owner of copyright in that work. The Act therefore protects and promotes creativity by granting authors, artists, and other creators exclusive control over their original works. It is consistent with the overall policy objectives of the Act that Ms Alalääkkölä, as the creative force behind the Artworks, be able to control the commercialisation of the Copyrights. It would be inappropriate and unfair to require her to transfer ownership of some of the Copyrights to Mr Palmer, for a range of reasons. These include that: Ms Alalääkkölä’s art is highly personal to her, and she wishes to be able to control its commercialisation; any business Mr Palmer set up to commercialise some of the Copyrights would be in competition with and could undermine Ms Alalääkkölä own art business; Ms Alalääkkölä is a working artist whose reputation and personal brand (as well as her future livelihood) could be negatively impacted by Mr Palmer’s decisions in relation to any Copyrights he owned; Ms Alalääkkölä holds inalienable moral rights in respect of the Artworks, which could be a source of further ongoing conflict if some of the Copyrights were transferred to Mr Palmer.
Overall, the “clean break” principle under the PRA favours Ms Alalääkkölä retaining ownership and control of the Copyrights.
The Court therefore orders that Ms Alalääkkölä is to retain sole ownership of the Copyrights, with a compensatory adjustment to be made from other relationship property to ensure an overall equal division.
The Court remits the matter to the Family Court, to assess the quantum of any compensatory adjustment.
Relationship property — Division of “balance of matrimonial property” — Personal property — Separate Property
An extension of time is granted for filing the notice of appeal.
The approved questions of law on appeal are answered as follows:
(1) Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Yes.
(2) If the Copyrights are property, how should they be classified in terms of the PRA?
The Copyrights should be classified as relationship property.
(3) If the Copyrights are property, how should they be treated in terms of the PRA?
The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
The assessment of an appropriate compensatory adjustment is remitted to the Family Court for determination.
The appellant must pay the respondent costs for a standard appeal on a band A basis, together with usual disbursements.
We certify for second counsel.
Ms Alalääkkölä is a successful artist. She created a number of artworks during the course of her 20-year marriage to Mr Palmer (the Artworks), many of which were sold to third parties.
It was common ground on appeal that the Artworks that remained in the possession of either party at the end of the relationship are relationship property in terms of the Property (Relationships) Act 1976 (PRA). Rather, the key issue on appeal was whether the copyrights in the Artworks (the Copyrights) are relationship property or Ms Alalääkkölä’s separate property. Further, if the Copyrights are relationship property, how they should be treated under the PRA regime? Ms Alalääkkölä sought to retain sole ownership of the Copyrights, with a compensatory adjustment being made to Mr Palmer from other relationship property. Mr Palmer, on the other hand, sought ownership of some of the Copyrights, so that he could commercialise them.
The Family Court found that the Copyrights were Ms Alalääkkölä’s separate property. On appeal, the High Court found that the Copyrights were relationship property, and remitted the issue of how they should be treated under the PRA to the Family Court. Ms Alalääkkölä appealed to this Court, having been granted leave to do so by the High Court on the approved questions of law.
Issue one: Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (PRA)?
Held: Yes.
The Copyrights fall within s 2(c) and (e) of the PRA definition of “property”.
Issue two: If the Copyrights are property, how should they be classified in terms of the PRA?
Held: The Copyrights should be classified as relationship property.
Ms Alalääkkölä submitted, in essence, that even if some of the bundle of rights and interests comprising the Copyrights were acquired during the relationship, the relevant bundle of rights and interests also includes (or is inextricably linked to) other property rights that pre-date or post-date the relationship. The inclusion of these takes the Copyrights outside the definition of relationship property and requires that they be categorised as separate property.
The Court rejected each of Ms Alalääkkölä’s arguments. First, the bundle of rights associated with the Copyrights was distinct from Ms Alalääkkölä’s personal skills and qualifications. Although those skills were used in the creation of the Artworks, they are distinct from the Copyrights that attach to the Artworks. Second, Ms Alalääkkölä’s art business, which was commenced prior to her relationship, is distinct from the Copyrights. Third, the fact that income may be generated, post-separation, from commercialisation of the Copyrights does not assist in determining the classification of the Copyrights under the PRA. Finally, there is nothing in either the Copyright Act 1994 or the PRA to suggest that Parliament intended to remove intellectual property from the reach of the PRA.
As the Copyrights were all acquired by Ms Alalääkkölä during the relationship (namely when each of the Artworks was created by her) they fell within the definition of relationship property in s 8(e) of the PRA (“all property acquired by either spouse or partner after their marriage, civil union, or de facto relationship began”).
Issue three: If the Copyrights are property, how should they be treated in terms of the PRA?
Held: The Copyrights should remain in Ms Alalääkkölä’s exclusive legal ownership, with Mr Palmer receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.
Pursuant to s 21 of the Copyright Act, the author of a work is the first owner of copyright in that work. The Act therefore protects and promotes creativity by granting authors, artists, and other creators exclusive control over their original works. It is consistent with the overall policy objectives of the Act that Ms Alalääkkölä, as the creative force behind the Artworks, be able to control the commercialisation of the Copyrights. It would be inappropriate and unfair to require her to transfer ownership of some of the Copyrights to Mr Palmer, for a range of reasons. These include that: Ms Alalääkkölä’s art is highly personal to her, and she wishes to be able to control its commercialisation; any business Mr Palmer set up to commercialise some of the Copyrights would be in competition with and could undermine Ms Alalääkkölä own art business; Ms Alalääkkölä is a working artist whose reputation and personal brand (as well as her future livelihood) could be negatively impacted by Mr Palmer’s decisions in relation to any Copyrights he owned; Ms Alalääkkölä holds inalienable moral rights in respect of the Artworks, which could be a source of further ongoing conflict if some of the Copyrights were transferred to Mr Palmer.
Overall, the “clean break” principle under the PRA favours Ms Alalääkkölä retaining ownership and control of the Copyrights.
The Court therefore orders that Ms Alalääkkölä is to retain sole ownership of the Copyrights, with a compensatory adjustment to be made from other relationship property to ensure an overall equal division.
The Court remits the matter to the Family Court, to assess the quantum of any compensatory adjustment.
Case number
[2024] NZCA 17
Date of Judgment
16 February 2024
Summary
Judicial Review - Required COVID-19 vaccinations - Defence Act 1990 - Armed Forces Discipline Act 1971 - New Zealand Bill of Rights Act 1990 - Appeal allowed
The appellants are four members of the New Zealand Defence Force (NZDF). They are subject to Temporary Defence Force Order 06/2022 (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022. The TDFO provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for COVID-19 in accordance with the NZDF Vaccination Schedule (Vaccination Schedule). The consequences of not being fully vaccinated for COVID-19 were more prescriptive and stringent than those which apply in respect of not meeting other vaccination requirements on the Vaccination Schedule.
The appellants - two of whom have not received any COVID-19 vaccinations, and two of whom have received their primary doses, but not booster doses - applied in the High Court for judicial review of the TDFO (and related instruments) on the grounds that the TDFO was unlawful because it was inconsistent with the Armed Forces Discipline Act 1971 (AFD Act), the Code of Health and Disability Services Consumers' Rights (the Code), and the New Zealand Bill of Rights Act 1990 (NZBORA).
Churchman J dismissed the challenges based on the AFD Act and the Code. As regards the NZBORA challenge, the Judge accepted that the TDFO limited ss 11 and 15, but did not consider that s 19 was engaged. The Judge was satisfied that maintaining the ongoing efficacy of the Armed Forces was a sufficiently important objective to justify limiting the rights contained in ss 11 and 15, and that the TDFO (and related instruments) were therefore demonstrably justified in a free and democratic society for the purposes of s 5 of NZBORA. The applications for judicial review were dismissed.
The appellants now appeal to this Court, advancing the same grounds of challenge as they did in the High Court.
Held:
The alleged inconsistency with the AFD Act relies on a misunderstanding of the function of s 72 of the AFD Act, which makes it a criminal offence for a member of the NZDF to fail to submit to medical treatment in the circumstances set out in that provision. Section 72 of the AFD Act is not engaged in this case. The Judge was right to dismiss this aspect of the challenge to the lawfulness of the TDFO.
The Judge was also right to dismiss the challenge based on the Code. The Code only applies at the point when a vaccination is offered to an individual NZDF member. It does not apply when the CDF issues a defence force order requiring vaccination, such as the TDFO. So the Code was not engaged when the TDFO was issued.
Sections 11 and 15 of NZBORA are engaged by the TDFO, but s 19 is not. We agree with the Judge that the respondents have established that there was a sufficient justification for limiting those rights by adding the COVID-19 vaccinations to the Vaccination Schedule. But the respondents have not demonstrated that the more stringent and prescriptive consequences brought about by the TDFO for not having these particular vaccinations is justified. In pa1ticular, the respondents have not shown that the ongoing efficacy of the Armed Forces could not have been ensured by less rights-limiting measures along the lines identified by the appellants. To that extent, the TDFO is inconsistent with NZBORA. The appeal is therefore allowed.
The CDF is directed to reconsider the TDFO in light of this judgment, and is ordered to not take any further action pursuant to the TDFO (and related instruments) until that reconsideration is complete.
The appellants are four members of the New Zealand Defence Force (NZDF). They are subject to Temporary Defence Force Order 06/2022 (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022. The TDFO provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for COVID-19 in accordance with the NZDF Vaccination Schedule (Vaccination Schedule). The consequences of not being fully vaccinated for COVID-19 were more prescriptive and stringent than those which apply in respect of not meeting other vaccination requirements on the Vaccination Schedule.
The appellants - two of whom have not received any COVID-19 vaccinations, and two of whom have received their primary doses, but not booster doses - applied in the High Court for judicial review of the TDFO (and related instruments) on the grounds that the TDFO was unlawful because it was inconsistent with the Armed Forces Discipline Act 1971 (AFD Act), the Code of Health and Disability Services Consumers' Rights (the Code), and the New Zealand Bill of Rights Act 1990 (NZBORA).
Churchman J dismissed the challenges based on the AFD Act and the Code. As regards the NZBORA challenge, the Judge accepted that the TDFO limited ss 11 and 15, but did not consider that s 19 was engaged. The Judge was satisfied that maintaining the ongoing efficacy of the Armed Forces was a sufficiently important objective to justify limiting the rights contained in ss 11 and 15, and that the TDFO (and related instruments) were therefore demonstrably justified in a free and democratic society for the purposes of s 5 of NZBORA. The applications for judicial review were dismissed.
The appellants now appeal to this Court, advancing the same grounds of challenge as they did in the High Court.
Held:
The alleged inconsistency with the AFD Act relies on a misunderstanding of the function of s 72 of the AFD Act, which makes it a criminal offence for a member of the NZDF to fail to submit to medical treatment in the circumstances set out in that provision. Section 72 of the AFD Act is not engaged in this case. The Judge was right to dismiss this aspect of the challenge to the lawfulness of the TDFO.
The Judge was also right to dismiss the challenge based on the Code. The Code only applies at the point when a vaccination is offered to an individual NZDF member. It does not apply when the CDF issues a defence force order requiring vaccination, such as the TDFO. So the Code was not engaged when the TDFO was issued.
Sections 11 and 15 of NZBORA are engaged by the TDFO, but s 19 is not. We agree with the Judge that the respondents have established that there was a sufficient justification for limiting those rights by adding the COVID-19 vaccinations to the Vaccination Schedule. But the respondents have not demonstrated that the more stringent and prescriptive consequences brought about by the TDFO for not having these particular vaccinations is justified. In pa1ticular, the respondents have not shown that the ongoing efficacy of the Armed Forces could not have been ensured by less rights-limiting measures along the lines identified by the appellants. To that extent, the TDFO is inconsistent with NZBORA. The appeal is therefore allowed.
The CDF is directed to reconsider the TDFO in light of this judgment, and is ordered to not take any further action pursuant to the TDFO (and related instruments) until that reconsideration is complete.
Case number
[2024] NZCA 9
Date of Judgment
12 February 2024
Summary
Criminal practice and procedure - Stay of proceedings
The appeal is dismissed.
The appeal is dismissed.
Case name
Case number
[2024] NZCA 6
Date of Judgment
05 February 2024
Summary
Criminal law - Forfeiture orders - Proceeds of crime
The application to adduce further evidence is granted.
The appeal is dismissed.
The appellant must pay the respondents costs calculated for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.
In the event leave is required, it is granted.
Salter Cartage Ltd (SCL) is a company occupying one of four properties owned variously by Mr Ronald and Mrs Natalie Salter personally and together with AKL Trustee Ltd, as trustees of the Salter Family Trust. A fatal accident occurred on SCL premises on 15 September 2015. Following this, the Commissioner applied for forfeiture orders on reliance on significant criminal activity undertaken by the respondents.
Restraining orders were initially made under the Criminal Proceeds (Recovery) Act 2009 by the High Court on 29 November 2019 on an application without notice. The orders affected the four properties. The respondents expressed an intention to apply for an order under s 29 of the Criminal Proceeds (Recovery) Act that the Commissioner give an undertaking to pay damages and costs sustained as a consequence of the restraining orders.
The Commissioner appeals from a High Court judgment requiring him to give an undertaking that he would comply with any order for the payment of damages and costs sustained in relation to restraining orders made under the Act.
Issue one: Should the Commissioner's application to adduce further evidence be granted?
Held: Yes. The further evidence updates the Court on the progress of an ongoing police investigation which will culminate with the substantive hearing of the Commissioner's civil forfeiture application. Its admission is in the interests of justice.
Issue two: Was this appeal from an interlocutory decision, such that leave was required under s 56(3) of the Senior Courts Act 2016?
Held: No. The present context is governed by r 19.2 of the High Court Rules 2016, where applications under the Act are listed among those requiring an originating application. It follows that the Commissioner did not require leave to appeal, and the Court is properly seized of this matter.
If this conclusion were incorrect, the importance of the issues raised would justify the panel granting leave as High Court judges to avoid procedural delays. Leave is granted accordingly.
Issue three: Did the High Court Judge fail to follow the judgment in Yan v Commissioner of Police?
Held: No. The Court considered the relevant considerations in Yan and is satisfied that this was an appropriate case for an undertaking to be required. First, in respect of likelihood and extent of loss, the restraining order would likely have an effect on the sale price that might be able to be achieved on a sale of the business of the SCL Group. This favoured requiring an undertaking. Second, the Judge did not err in his evaluation of the alleged chilling effect. Third, there is no reason to differ from the Judge's conclusion that the Commissioner has an arguable case that could result in forfeiture orders, and it is not appropriate to say anything further on the issue. Rather, the fact that the Commissioner has an arguable case is a neutral factor.
The application to adduce further evidence is granted.
The appeal is dismissed.
The appellant must pay the respondents costs calculated for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.
In the event leave is required, it is granted.
Salter Cartage Ltd (SCL) is a company occupying one of four properties owned variously by Mr Ronald and Mrs Natalie Salter personally and together with AKL Trustee Ltd, as trustees of the Salter Family Trust. A fatal accident occurred on SCL premises on 15 September 2015. Following this, the Commissioner applied for forfeiture orders on reliance on significant criminal activity undertaken by the respondents.
Restraining orders were initially made under the Criminal Proceeds (Recovery) Act 2009 by the High Court on 29 November 2019 on an application without notice. The orders affected the four properties. The respondents expressed an intention to apply for an order under s 29 of the Criminal Proceeds (Recovery) Act that the Commissioner give an undertaking to pay damages and costs sustained as a consequence of the restraining orders.
The Commissioner appeals from a High Court judgment requiring him to give an undertaking that he would comply with any order for the payment of damages and costs sustained in relation to restraining orders made under the Act.
Issue one: Should the Commissioner's application to adduce further evidence be granted?
Held: Yes. The further evidence updates the Court on the progress of an ongoing police investigation which will culminate with the substantive hearing of the Commissioner's civil forfeiture application. Its admission is in the interests of justice.
Issue two: Was this appeal from an interlocutory decision, such that leave was required under s 56(3) of the Senior Courts Act 2016?
Held: No. The present context is governed by r 19.2 of the High Court Rules 2016, where applications under the Act are listed among those requiring an originating application. It follows that the Commissioner did not require leave to appeal, and the Court is properly seized of this matter.
If this conclusion were incorrect, the importance of the issues raised would justify the panel granting leave as High Court judges to avoid procedural delays. Leave is granted accordingly.
Issue three: Did the High Court Judge fail to follow the judgment in Yan v Commissioner of Police?
Held: No. The Court considered the relevant considerations in Yan and is satisfied that this was an appropriate case for an undertaking to be required. First, in respect of likelihood and extent of loss, the restraining order would likely have an effect on the sale price that might be able to be achieved on a sale of the business of the SCL Group. This favoured requiring an undertaking. Second, the Judge did not err in his evaluation of the alleged chilling effect. Third, there is no reason to differ from the Judge's conclusion that the Commissioner has an arguable case that could result in forfeiture orders, and it is not appropriate to say anything further on the issue. Rather, the fact that the Commissioner has an arguable case is a neutral factor.