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Case information 2008

 

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Transcripts for cases heard before the Supreme Court are located under the relevant case summary provided they are not suppressed. Also included (again where suppression does not apply) under the case summary are the relevant judgments from the Supreme Court (leave, substantive and any other judgments), media releases plus judgments from the court appealed from.

Transcripts documents contain the transcripts of the hearings in the Supreme Court of New Zealand. The transcripts from appeals, heard from 1 July 2004 are published excluding cases where suppression bars publication. Transcripts from pre-trial hearings are not published until the final disposition of trial.

These are unedited transcripts and they are not a formal record of the Court’s proceedings. The Ministry of Justice does not accept responsibility for the accuracy or completeness of any material and recommends that users exercise their own skill and care with respect to its use.   

As at 26 June 2017

 

Case Number SC 92/2008
Case Name

Deryck Joseph Morgan v The Queen

Summary

Criminal Appeal – aggravated robbery – appeal against conviction – miscarriage of justice – previous inconsistent statement of hostile witness – actual statement not produced until re-examination because of oversight – whether Court of Appeal was correct to hold that this statement was admissible as evidence of the truth of its contents.

[2008] NZCA 537  CA 481 /2008 5 December 2008

Result

Application for leave to appeal granted.

25 March 2009

_________________________

Appeal dismissed.

16 March 2010

Transcript Hearing date : 16 July 2009 

 

 

Case Number SC 91/2008  
Case Name

Astrazeneca Limited v Commerce Commission and Pharmaceutical Management Agency

Summary

Civil Appeal – Respondent gave notice under s 98 of the Commerce Act 1986 of an investigation into allegations that the applicant acted contrary to section 36 of the Act in negotiations with PHARMAC – whether exemption to Part 2 of the Commerce Act in s 53 of the Public Health and Disability Act 2000 applied so that the respondent should not have issued a notice – whether Court of Appeal erred in concluding it did not have sufficient factual information to determine whether s 53 applied – whether the Court of Appeal was correct to conclude that there might be some other purpose of s 53 which would become evident when it was considered in light of the full facts.

[2008] NZCA 479 CA 241/2008 11 November 2008

Result

Application for leave to appeal granted

25 February 2009

________________________

Appeal allowed.

It is declared that the notice under s 98 of the Commerce Act 1986 given by the Commerce Commission on 31 October 2007 was ultra vires and invalid.  It is ordered that the notice is quashed.

The Commerce Commission is ordered to pay the appellant costs in this Court of $15,000 together with reasonable disbursements as fixed by the Registrar.  Costs in the Court of Appeal and the High Court should now be fixed respectively by those Courts in light of this Court’s judgment.

26 August 2009

Transcript Hearing date : 8 July 2009

 

 

Case Number SC 90/2008
Case Name Tony Douglas Robertson v The Queen
Summary

Criminal appeal - appellant convicted on counts of robbery, attempted kidnapping, abduction of a child and performing indecent acts - Court of Appeal dismissed appeal on basis that there was no miscarriage of justice due to Keane J’s failure to give a lies direction and that the verdicts were not unreasonable - appeal to the Supreme Court on the same grounds of miscarriage of justice.

[2008] NZCA 282   CA 155/07  6 August  2008

Dates

Application for leave to appeal is dismissed.

3 April 2009

 

Case Number SC 89/2008
Case Name Symphony Group Limited v Vero Liability Insurance Ltd
Summary

Civil – whether an insured defendant may join its insurer to a proceeding as a third party pursuant to Rule 75 of the High Court Rules and resist an application for strike out - whether the Court of Appeal was correct to hold that Rule 75 does not apply where the plaintiff’s claim against the insured does not include a claim for which the insured is indemnified, but the plaintiff has notified the Court of its intention to add such a claim – whether the principle in Couch v Attorney General [2008] NZSC 45, that if a saving amendment can be made to a claim it should not be struck out, should apply by analogy where a saving amendment is to be made to a plaintiff’s claim, that will give the defendant a right to indemnity from its insurers.

[2008] NZCA 419   CA 132/08     23 October 2008

Dates

Application for leave to appeal granted.

1 April 2009

Result

Notice of Abandonment of Appeal lodged.

Appeal deemed to be dismissed.

9 July 2009

 

Case Number SC 88/2008
Case Name Caroline Rangiata AROH  v The Queen
Summary

Criminal Appeal - Criminal appeal – importing cocaine and heroin and exporting cocaine – appeal against conviction and sentence – whether Court of Appeal bench was appropriately constituted – miscarriage of justice – whether evidence was fabricated – whether counts should have been severed from that of the appellant’s co-accused – whether judge erred in allowing inadmissable evidence to be used against the appellant.

[2008] NZCA 457   CA  113/07    5 November  2008

Dates

Application for leave to appeal dismissed.

30 March 2009

 

Case Number SC 87/2008  
Case Name Kenny Leslie McMillan  v The Queen
Summary

Criminal – Appeal against conviction – Methamphetamine – Admissibility of Evidence – Fair trial – Whether miscarriage of justice established – Whether Court of Appeal erred in concluding trial Judge correct to refuse to direct editing of video interview and in refusing to rule text message inadmissible – Whether Court of Appeal erred in concluding judicial directions able and sufficient to prevent illegitimate prejudice to applicant from admission of disputed evidence

[2008] NZCA 431   CA 411/07     22 October 2008

Dates Application for leave to appeal dismissed.
5 February 2009

 

Case Number SC 86/2008
Case Name Frank Onyebu Aroh v The Queen
Summary

Criminal appeal – importing cocaine and heroin and exporting cocaine – appeal against conviction and sentence – miscarriage of justice – whether undue pressure placed on jury who deliberated until approx 1am – whether judge gave correct directions regarding similar fact evidence – whether judge’s directions regarding the defendant’s earlier trial were prejudicial

[2008] NZCA 457  CA 106/07      5 November 2008

Dates

Application for leave to appeal dismissed.

30 March 2009

 

Case Number SC 85/2008  
Case Name Property Ventures Investments Limited v Regalwood Holdings Limited
Summary

Civil appeal – property – validity of settlement notice and notice of cancellation of an agreement for sale and purchase – whether the Court of Appeal erred in finding that the respondent had validly cancelled the agreement for sale and purchase when the Court had held that essentiality of time under the respondent’s earlier settlement notice had been waived – whether the Court of Appeal erred in finding that cl 5.4 of the standard ADLS/REINZ form (7th ed, July 1999) applies only to misdescription about the property at the time of the agreement and not to a breach of warranty under cl 6.2 – accordingly, whether the respondent’s settlement notice under cl 6.5 requiring the purchaser to settle for the full price was valid.

[2008] NZCA 422  CA 43/2008 16 October  2008

Result

Application for leave to appeal granted.

4 February 2009

_______________________

Appeal allowed. Orders made in the High Court set aside. Summary Judgment application dismissed. Proceeding remitted to the High Court.  Costs of $15,000 to the appellant.

28 April 2010

Transcript

Hearing date : 25 June 2009

 

 

Case Number SC 84/2008
Case Name William Patrick Jeffries  v The Attorney--General
Summary

Civil – Administrative law – Whether the Court of Appeal failed to observe principles of natural justice by deciding an application for indemnity costs and making findings on the motive of the Appellant ‘on the papers’ – Whether the Court of Appeal erred in taking into account the Appellant’s standing on the judicial review proceedings when that was already under appeal separately to the Court.

[2008] NZCA 426  CA 150/2008 20 October  2008

Result

Application for leave to appeal granted.

4 February 2009

Transcript

Hearing date : 25 June 2009

 

 

Case Number SC 83/2008
Case Name

Bernard Terence Whimp v The Queen

Summary

Criminal appeal – Companies Act 1993 – applicant convicted of burglary, removing records of a company in liquidation, and failing to supply records of a company in liquidation – whether the Court of Appeal erred in concluding there was sufficient evidence to establish a tenancy of the premises which could be enforced by the liquidator – whether the Court of Appeal relied on inadmissible secondary and hearsay evidence in doing so – whether the Court of Appeal erred in concluding that there was sufficient evidence of a licence over the property, the circumstances of which determined the applicant’s rights in relation to the premises and rendered him a trespasser – whether the  Court of Appeal erred in determining the scope of a liquidator’s powers under s 261(1) of the Act.

[2008] NZCA 405  CA 523/2008   8 October  2008

Dates

Application for leave to appeal dismissed.

4 February 2009

 

Case Number SC 82/2008  
Case Name James Hemi Biddle  v The Queen
Summary

Criminal – Appeal against conviction – Robbery – Criminal Procedure – Judge’s summing up – Whether Court of Appeal erred in concluding trial Judge’s summing up to jury on issues of credibility and reliability was appropriate – Whether Court of Appeal erred in concluding trial Judge’s summing up did not give rise to miscarriage of justice.

[2008] NZCA 398  CA 243/2008   30 September 2008

Dates

Application for leave to appeal refused.

5 December 2008.

 Hearing

7 July 2009

 Result Appeal dismissed.

16 July 2009

 

Case Number SC 81/2008
Case Name

Eric Barry Stewart v The Queen.

Summary

Criminal Appeal – fraudulent use of medical certificates on ACC forms appeal against conviction – motive to lie – whether the prosecutor’s comments to the jury about the applicant’s motive to lie amounted to a miscarriage of justice – whether the trial judge should be required to correct these comments in summing up – whether the Court of Appeal erred in finding that the prosecutor’s questioning of defence expert witness did not amount to a miscarriage of justice because the witness did not provide the applicant with a defence – whether this questioning was without foundation, an error of law and unfair

[2008] NZCA 341 CA 231/07 2 September 2008

Result

Application for leave to appeal granted
5 February 2009

_________________________

Appeal allowed, convictions quashed. No order for retrial.

28 May 2009

Transcript

Hearing date : 7 May 2009

 

 

Case Number SC 80/2008  
Case Name Diagnostic Medlab Limited v Auckland District Health Board and others
Summary

Civil appeal – judicial review – the Auckland region District Health Boards (ARDHBs) put out to tender the provision of its community laboratory services – the successful tenderer was Lab Tests Auckland Limited (Lab Tests) and the incumbent provider, Diagnostic Medlab Limited (DML), applied to the High Court for judicial review of the ARDHBs’ decision on the basis that the decision was procedurally flawed – the application was successful in the High Court and but an appeal to the Court of Appeal by Lab Tests was allowed – whether the Court of Appeal failed to interpret the provisions of the New Zealand Public Health and Disability Act 2000 (PHDA) as contemplating and requiring supplementing by principles of natural justice – whether the Court of Appeal applied a wrong and unduly restrictive approach to judicial review in the context of a contracting decision for an essential public health service – whether the Court of Appeal sanctioned a result which undermined the principles of natural justice, compromised the integrity of the relevant contracting process, and eroded public trust and confidence in decision-making by DHBs generally – whether the Court of Appeal failed to recognise that the PHDA contemplates a significant community voice in decisions affecting public health, including by way of meaningful consultation in accordance with expectations established by documents required by the PHDA – whether the Court of Appeal failed to apply any or an appropriate level of scrutiny to the DHBs’ decision on the grounds of unreasonableness – whether the Court of Appeal failed to pay any or proper respect to the High Court’s identification and evaluation of the relevant factual context, and that Court’s advantages as a primary fact-finder and adjudicator of mixed questions of law and fact.

[2008] NZCA 385  CA 154/07  25 September 2008
Dates

Application for leave to appeal dismissed.

Costs $2,5000 to the first respondents (jointly)  and $2,500 to the second respondent.

 

Case Number SC 79/2008  
Case Name Alistair Maurk Stuart Lyon v The Queen.
Summary

Criminal – Appeal against sentence – Whether the Court of Appeal erred in upholding the non-custodial sentences imposed by the District Court on the appellant.

[2008] NZCA 415  CA 305/2008  10 October 2008
Dates

Application for leave to appeal dismissed.

17 December 2008

 

Case Number SC 78/2008  
Case Name Joseph Russell Rewiri v The  Queen
Summary

Criminal – provocation – whether the Court of Appeal erred in concluding that the application had no “special characteristic” relevant to provocation – whether the Court of Appeal applied the correct test for special characteristic.

[2008] NZCA 355  CA 140/2008 8 September 2008

Dates

Application for leave to appeal refused. 

5 December 2008.

 

Case Number SC 77/2008  
Case Name RL  and WL v The Chief Executive of the Ministry of Social Development and others.
Summary Civil Appeal – Special Application to bypass Court of Appeal – Actual or apparent bias – Muir test – Whether High Court erred by failing to take into account international conventions – Whether Court acted unreasonably and failed to properly exercise its discretion.

Civ 2007  404 7031 High Court Auckland 13 October 2008.
Dates

Application for leave to appeal dismissed. Application for stay of judgment dimissed.

24 November 2008

 

Case Number SC 76/2008  
Case Name Igor Alexandrovich Mikitasov v Bernard John Collins
Summary

Civil Appeal – extent of right of way for driveway to adjacent properties – whether respondent’s representations prior to the sale of 2 adjacent properties to the appellant included a representation that the right of way granted to one Lot could be used for access to the other– whether Court of Appeal had sufficient information to conclude that the respondent did not make such a representation – whether the uses of the two Lots owned by the appellant, the circumstances of their purchase and the convenience provided by the use of the right of way for both lots are sufficient to support a counterclaim for an interest in land – whether the principle in Wheeldon v Burrows (1879) 12 Ch D 31 of being ‘necessary for reasonable enjoyment’ applies– whether an injunction should have been granted in addition to a declaration – whether the respondent is estopped from strictly enforcing the terms of the right of way.

[2008] NZCA 390   CA 211/2008    25 September  2008

Dates

Application for leave to appeal dismissed.

4 February 2009

 

Case Number SC 75/2008  
Case Name Kay Skelton v The Queen
Summary

Pretrial – change of venue appllication

Criminal appeal – whether the Court of Appeal erred in the test it applied under ss 379A and 322 of the Crimes Act 1961 in determining, on appeal, whether there ought to be a change of venue of the applicant’s trial – whether the Court of Appeal erred in its conclusion on the risk of an unfair trial without a change of venue

[2008] NZCA 382   CA 424/2008    22 September  2008

Dates

Application for leave to appeal dismissed.

30 October 2008

 
 

Case Number SC 74/2008  
Case Name Xiao Qiong Huang and others v The Minister of Immigration and The Attorney-General
Summary Civil – Immigration – whether when interpreting domestic law the Court of Appeal failed to take into account relevant considerations, such as international conventions on the Rights of the Child, on Civil and Political Rights and on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – whether the Court of Appeal applied the incorrect test of judicial review to a human rights case – whether the Court of Appeal erred in applying the facts to the law under the Wednesbury test.

[2008] NZCA 377   CA 262/06   19 September  2008
Dates

Application for leave to appeal granted

4 December 2008

Transcript

Hearing date : 29 April 2009

 

 

Case Number SC 73/2008  
Case Name Geoffrey Martin Smith  v The Queen
Summary

Criminal – application for leave to appeal against conviction – applicant convicted of offences against the Tax Administration Act 1994 – nature of intent required by s 143B(1)(f) of the Act – whether s 109 of the Act applies to evidence in a criminal trial – whether the trial Judge misdirected the jury in relation to PAYE, GST, and the impact of certain assessments before them.

[2008] NZCA 371   CA 275/2008   17 September  2008
Dates

Application for leave to appeal dismissed.

12 December 2008.

 

 

Case Number SC 72/2008  
Case Name

B and others  v Crown Health Financing Agency

Summary

Civil Appeal – Mental Health – Treatment – Statutory Interpretation – Whether Court of Appeal erred in holding all informal patients in psychiatric hospitals were within leave and immunity provisions contained in s 6 of the Mental Health Act 1935 and s 124 of the Mental Health Act 1969 (“leave and immunity provisions”) – Whether, alternatively, Court of Appeal erred in holding leave and immunity provisions apply to all informal patients after 1 April 1972.

[2008] NZCA 362 CA 173/07 16 September 2008

Result

Application for leave to appeal granted

1 December 2008

___________________________

Appeal allowed. Proceedings that were before the Court of Appeal referred back to High Court.

Costs $15,000 to appellant, together with reasonable disbursements.

17 September 2009

Transcript

Hearing date : 2 April 2009

 

 

Case Number SC 71/2008  
Case Name M v The Queen
Summary Criminal Appeal – appeal against conviction – sexual conduct with a child under 12 years – miscarriage of justice – whether trial judge was correct to rule that the adducing of defence character evidence as to the applicant’s behaviour in relation to children would allow the Crown to adduce evidence regarding the applicant’s conviction for allowing his 14 year old daughter to drive a motor vehicle – whether trial defence counsel should have adduced the character evidence despite the judge’s ruling – whether the judge would have then been required to give a further good character direction to the jury –
[2008] NZCA 358   CA 259/07   10 September  2008
Dates Application for leave to appeal dismissed.

10 December 2008

 

Case Number SC 70/2008  
Case Name Television  New Zealand Limited v Simunovich Fisheries Limited and others
Summary Civil – Defamation – whether the Court of Appeal erred in finding that the repetition and conduct rules of pleading apply to a defence of truth – whether the Court of Appeal was wrong to find that a defendant may not seek to prove the truth of imputations by reference to the opinions or assertions of others – did the Court of Appeal err in holding that s 38 does not permit third party assertions and opinion to be pleaded for the defence of truth – was the Court of Appeal wrong to find that a defendant is not entitled to rely on third party assertions as publication facts on which a defence of honest opinion is based, but must identify true statements of facts in the publication which may not include the fact that others made allegations or expressed opinions.

[2008] NZCA  350  CA 447/07 CA 584/07    8 September  2008
Result

Application for leave to appeal granted.

1 December 2008

________________________

Appeal dismissed.

Costs $15,000 to the respondent jointly with one half of their disbursements.

26 August 2009

Transcript Hearing date : 9 and 10 June 2009

 

 

Case Number SC 69/2008  
Case Name APN New Zealand Limited v Simunovich Fisheries Limited and others
Summary Civil – Defamation – whether the Court of Appeal erred in finding that the obligation in s 38 of the Defamation Act 1992 applies to the pleading of a stand alone defence of truth – whether the Court of Appeal was wrong to find that the “repetition rule” and the “conduct rule” apply to pleadings of truth - whether the Court of Appeal erred in holding that the change in approach to admissibility of hearsay evidence in the Evidence Act 2006 does not affect the applicability of the “repetition rule” to a pleading of truth – was the Court of Appeal wrong to hold that it is not open to a defendant to plead the opinions and statements of third parties in support of a truth defence, or in support of an honest opinion defence.

[2008] NZCA 350  CA 447/07 CA 584/07    8 September  2008
Result

Application for leave to appeal granted

1 December 2008

________________________

Appeal dismissed.

Costs $15,000 to the respondent jointly with one half of their disbursements.

26 August 2009

 Transcript

Hearing date : 9 and 10 June 2009

 

 

Case Number SC 68/2008  
Case Name Julian Paul Burke and Gillian Elizabeth Burke v Advances Securities Limited
Summary

Civil – Credit Contracts and Consumer Finance Act 2003, s 13 – Court of Appeal considered that certain evidence operated to rebut the presumption of a consumer credit contract under s 13 – whether Court of Appeal’s conclusion was supported by the evidence.

[2008] NZCA 93  CA 696/07   18 April 2008
Dates

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

17 November 2008

 

 

Case Number SC 67/2008  
Case Name Westpac New Zealand Limited v Alan John Clark
Summary Civil Appeal – Property – Mortgages – Security – Fraud – Whether Court of Appeal erred in holding, in effect, that Appellant’s mortgage secured nothing – Whether Court of Appeal erred in rejecting Appellant’s submission that upon registration of a mortgage, charged property is rendered liable for the mortgage debt (monies advanced in terms of or in reliance upon the mortgage or monies secured by the mortgage) whatever the mortgage debt is established to be by the lender – Whether Court of Appeal erred in rejecting Appellant’s submission that for purposes of determining what monies are secured by a mortgage, there is no difference between an acknowledgment contained in a mortgage of a particular sum lent with a covenant to repay that sum and an acknowledgment of an unparticularised sum (“all monies”) with a covenant to repay those monies – Whether Court of Appeal erred in holding that a personal covenant to pay contained in a mortgage is independent of the charged created by the mortgage and does not attract indefeasibility on registration – Whether Court of Appeal erred in holding that the terms of the loan agreement between the Appellant and a fraudster were not incorporated into the registered mortgage – Whether Court of Appeal erred in holding Appellant suffered no loss as a result of the Respondent’s breach of undertaking to register the Appellant’s mortgage “promptly”.

[2008] NZCA 346  CA 172/06    5 September 2008
Dates

Application for leave to appeal is granted.

27 November 2008

Transcript

Hearing date : 4 May 2009

 

 

Case Number SC 66/2008  
Case Name Kevin Francis John Casey v The Queen
Summary Criminal Appeal – pre-trial application – drink driving – admissibility of evidential breath test printout – whether there was a lawful roadside detention – whether the Court of Appeal correctly interpreted s 114 of the Land Transport Act 1998 – claim proper breath screening procedure was not adopted – whether s 30 of the Evidence Act 2006 should have been applied to this claim – whether the right to consult a lawyer under s 23(1)(b) of the New Zealand Bill of Rights Act was complied with

[2008] NZCA 335  CA 246/2008  1 September 2008
Dates

Application for leave to appeal dismissed.           

5 December 2008

 

Case Number SC 65/2008  
Case Name Vector Gas Limited v Bay of Plenty Electricity Limited
Summary

Civil appeal – contract interpretation – interpretation of an Interim agreement to preserve gas supply until decision made as to the validity of a termination of gas distribution agreement between the Vector Gas Limited (“NGC”) and Bay of Plenty Energy Limited (“BoPE”)– whether the Court of Appeal erroneously interpreted the terms of the interim agreement as meaning that the repeated phrase “6.50 per GJ” referred to a bundled price for not only the quantities of gas supplied but also transmission and network costs associated with delivery of such gas, rather than to a gas only price – whether the parties had given their own meaning to the phrase “6.50 per GJ” in prior correspondence – whether the Court of Appeal artificially excluded from consideration the bulk of relevant prior correspondence – whether the Court of Appeal disregarded the context of the agreement negotiations that the only other options for BoPE were cessation of gas supply or the giving of an undertaking as to market related damages – whether the Court of Appeal gave weight to unsupported and inherently implausible “reputational” speculation that NGC might not have pressed for a market comparable price in the interim agreement – whether the Court of Appeal was wrong to reach a decision whereby NGC was worse off than if BoPE had given an undertaking as to damages – whether the Court of Appeal’s decision  is contrary business common sense and fundamental principles of contractual interpretation.

[2008] NZCA 338  CA 679/2008  1 September 2008
Dates Application for leave to appeal granted. Respondents application for leave to cross appeal refused. 11 December 2008.
Transcript

Hearing date : 23 June 2009

Decision

The appeal is allowed. The respondent is to pay to the appellant costs of $15,000 together with reasonable disbursements as fixed by the Registrar.  Costs in the lower Courts are to be fixed by those Courts in the light of this Court’s judgment.

10 February 2010

 

Case Number SC 64/2008
Case Name

Slawomir Ryszard Bujak v Solicitor-General

Summary

Civil – Mutual Assistance in Criminal Matters Act 1992 – whether the Court of Appeal erred in finding that an order for the seizure of property in Poland could be registered in New Zealand under s 55 of the Mutual Assistance in Criminal matters Act 1992.


[2008] NZCA 334  CA 679/2008  11 September 2008

Results

Application for leave to appeal granted.

11 November 2008

_____________________________

Appeal dismissed. Costs to respondent $15,000 and reasonable disbursements.

15 May 2009

Transcript

Hearing date : 31 March 2009

 

 

Case Number SC 63/2008  
Case Name Vincent Ross Siemer v Solicitor General
Summary Civil – applicant found in contempt of court and committed to prison – appeal against Court of Appeal decision dismissing application for stay of execution of imprisonment – whether Court of Appeal erred in its consideration of the legal criteria for such an application.

[2008] NZCA 369 CA 447/2008 16 September 2008
Dates Application for leave to appeal dismissed.
17 October 2008.

 

Case Number SC 62/2008  
Case Name Vincent Ross Siemer v Ferrier Hodgson and Michael Peter Stiassny
Summary Civil Appeal – Civil Procedure – Defamation Act 1992 – New Zealand Bill of Rights Act 1990, ss 14 and 27 – Miscarriage of Justice – Whether Court of Appeal erred in dismissing appeal against order of High Court striking out parts of the Applicant’s defamation claim – Whether conflict of interest created by Court of Appeal Judge’s decision not to recuse himself – Whether High Court Rule change allowing documents to be referred to by a “generic description” compromised discovery process.

[2008] NZCA 255CA 226/2007 24 July 2008
Dates

Application for leave to appeal dismissed.

19 November 2008

 

 

Case Number SC 61/2008
Case Name

Shane Edward Williams v The Queen

Summary

Criminal appeal – appeal against conviction – conspiracy to manufacture methamphetamine – section 25(b) New Zealand Bill of Rights Act 1990 – whether High Court Judge should have stayed the criminal proceedings after making finding of undue delay in bringing the applicant to trial – stay granted in relation to eight co-accused – whether applicant should have received same remedy.

[2008] NZCA 296 CA 664/2007 12 August 2008

Result

Application for leave to appeal granted.

3 November 2008

________________________

Appeal dismissed.

15 May 2009

Transcript

Hearing date : 26 February 2009

 

 

Case Number SC 60/2008  
Case Name Alfred Taenga Mata v The Queen
Summary Criminal appeal – Supreme Court Act s 14 – leap-frog appeal against District Court judgment – whether exceptional circumstances exist so as to justify taking the appeal directly to the Supreme Court.
Evidence Act 2006 s 43 – District Court judgment ruled that certain “propensity” evidence is admissible at the applicant’s up-coming trial for robbery – the incident of propensity that the Crown sought to adduce occurred one year later than the incident that is the subject of the current proceedings, and resulted in charges being brought against the applicant – whether a non-proven criminal allegation is capable of being used as propensity evidence – whether, in deciding whether propensity evidence should be admitted under s 43, courts are required to follow common law principles – whether the specific robbery allegation sought to be adduced as propensity evidence meets the threshold of similar fact evidence that can be considered as an “other matter” when assessing the prejudicial effect of the evidence under s 43(4).

CRI 2007-092-006967 14th August 2008
Dates

Application for leave to appeal dismissed. 

15 September 2008

 

  

Case Number SC 59/2008  
Case Name Kelly Te Peeti Ringi v The Queen
Summary Criminal – Sexual violation - Whether the Court of Appeal erred in finding that the evidence supported the conviction – whether the Appellant had inadequate representation at trial and in the Court of Appeal.

[2008] NZCA 293 CA33/2008 12 August 2008
Dates

Application for leave to appeal is dismissed.

11 February 2009

 

Case Number SC 58/2008  
Case Name Christopher James Fullbeck Mosley v The Queen
Summary Criminal appeal – trial took place with ten jurors – whether the Court of Appeal erred in confirming that there were “exceptional circumstances relating to the trial” which justified continuing with ten jurors under s 374 Crimes Act 1961 – whether the Court of Appeal was wrong to conclude that s 374(8) excluded a right to review the trial Judge’s decision to discharge the 12th and 11th jurors.

[2008] NZCA 319  CA 612/2007    25 August 2008
Dates

Application for leave to appeal dismissed.

17 November 2008.

 

 

Case Number SC 57/2008  
Case Name Stephen William Garret v The Queen
Summary Criminal - Appeal against sentence – Grievous bodily harm with intent to injure – Whether 3½ years imprisonment manifestly excessive for vigilante attack given early offer of guilty plea to lesser charge of which ultimately convicted and $20,000 reparation payment as requested by victim – Whether sentencing Judge erred in law in finding appellant had leadership role in operation.

[2008] NZCA 294   CA 176/2008    12 August 2008
Dates Application for leave to appeal dismissed.
20 October 2008.

 

  

Case Number SC 56/2008  
Case Name Alan Qiuand Stanley Qiu v Minister of Immigration, He Qin Qiu and Ziao Yun Qiu
Summary Civil appeal – immigration – removal order made under s 54 of the Immigration Act 1987 in respect of overstayer mother whose children are New Zealand citizens – humanitarian interview conducted by Immigration Officer who determined not to exercise the power of cancellation of the removal order under s 58 of the Immigration Act – whether the Court of Appeal erred in not holding that the children’s welfare and best interests as New Zealand citizen children of an overstayer parent ought to have been directly addressed and taken into account by the Immigration Officer as the paramount or alternatively as a primary consideration in his decision making – whether the Court of Appeal erred in failing to hold that the applicants were entitled to be heard either prior to the decision to make the removal order or prior to the decision to proceed with the removal and thus to be accorded natural justice in their own right – whether the Court of Appeal erred in failing to uphold the applicants’ claim that the first respondent failed to properly take into account the applicants’ rights and New Zealand’s obligations under international law.

[2008] NZCA 291  CA 192/2006
Dates

Application for leave to appeal granted

4 November 2008
Transcription

Hearing date: 21 -23 April 2009

 
 

Case Number SC 55/2008  
Case Name Tiny Intelligence Limited v Resport Limited
Summary Civil appeal – Copyright Act 1994 – damages – the High Court found that Resport Ltd fragrantly breached the copyright of Tiny Intelligence Ltd in several toys and awarded Tiny Intelligence Ltd $50,000 by way of account of profits – whether additional damages are available under s 121(2) of the Copyright Act where the Court has awarded an account of profits – whether the House of Lords decision of Redrow Homes Ltd v Bett Brothers Plc [1999] 1 AC 197 should be applied  to the New Zealand Copyright Act.

[2008] NZCA 281  CA 270/2006
Result

Application for leave to appeal granted.
21 October 2008

_________________________

Appeal dismissed. Cost to the respondent $15,000 together with reasonable disbursements.

8 April 2009

Transcript

Hearing date : 16 March 2009

 

 

 

Case Number SC 54/2008
Case Name

Roderick William Nielsen v Dysart Timbers Limited

Summary

Civil – Costs – whether the Court of Appeal correctly applied an objective test to the issue of whether the appellant intended a settlement offer to remain open for acceptance after the Supreme Court had granted leave to appeal.

[2008] NZCA 280    CA 630/07   6 August 2008

Result

Application for leave to appeal granted.

28 October 2008

___________________________

Appeal dismissed. Costs to respondent $15,000 and reasonable disbursements.

15 May 2009

Transcript

Hearing date : 10 March 2009

 

 

Case Number SC 53/2008  
Case Name Wiilie Ye, Candy Ye and Tim Ye v Minister of Immigration and Yueing Ding
Summary Civil appeal – immigration – removal order made under s 54 of the Immigration Act 1987 in respect of an overstayer mother whose children are New Zealand citizens – humanitarian interview conducted by Immigration Officer who determined not to exercise the power of cancellation of the removal order under s 58 of the Immigration Act – whether the Court of Appeal erred in not holding that the children’s welfare and best interests as New Zealand citizen children of an overstayer parent ought to have been directly addressed and taken into account by the Immigration Officer as the paramount or alternatively as a primary consideration in his decision making – whether the Court of Appeal erred in failing to hold that the applicants were entitled to be heard either prior to the decision to make the removal order or prior to the decision to proceed with the removal and thus to be accorded natural justice in their own right – whether the Court of Appeal erred in failing to uphold the applicants’ claim that the first respondent failed to properly take into account the applicants’ rights and New Zealand’s obligations under international law - whether the Court of Appeal erred in holding that the appropriate relief was to remit the matter of the Immigration Service to be reconsidered  “if it sees fit”.

[2008] NZCA 291   CA 184/2006
Dates

Application for leave to appeal granted

4 November 2008

Transcript

Hearing date :  21-23 April 2009

 

  

Case Number SC 51/2008  
Case Name Woolworths Limited v The Commerce Commission and others
Summary Civil Appeal – section 66 Commerce Act 1986 – acquisitions that will have or are likely to have the effect of substantially lessening competition – whether Court of Appeal erred in its approach to giving clearance under s 66 – whether clearance can be declined on the grounds that it is uncertain whether the acquisition will cause a substantial lessening of competition – whether the approach to be adopted by the Court in s 66 cases is different to the balance of probabilities approach used in ordinary civil cases – whether the Court of Appeal was correct to take an approach to the term ‘likely’ which extended to scenarios that were merely possible or speculative – whether ‘substantial’ effects on competition include effects that are merely nominal or ephemeral – if Court of Appeal test was correct, whether Court of Appeal should have referred case back to High Court to apply correct test – whether Court of Appeal had proper regard to all the evidence when applying s 66.

[2008] NZCA 276   CA 55/2008  1 August  2008
Dates Notice of abandonment being lodged, the application for leave to appeal is deemed to be dismissed.
17 October 2008.

 

Case Number SC 50/2008  
Case Name Shane Huia Matenga v The Queen
Summary Criminal appeal – Crimes Act 1961 s 385(1) – applicant was convicted of rape and unlawful sexual connection – at trial, inadmissible expert opinion evidence was given as to the central issue of consent – on appeal, the Court of Appeal held that, while there was a risk of a miscarriage of justice under s 385(1)(c), the proviso should be applied as no substantial miscarriage of justice had actually occurred – whether the Court of Appeal applied the correct principles in deciding to apply the proviso – whether the finding that there was a risk of a miscarriage of justice is incompatible with the holding that no substantial miscarriage of justice had actually occurred.

[2008] NZCA 260   CA 216/07   28 July 2008
Dates Application for leave to appeal granted.
 20 October 2008.
Hearing

10 February 2009

Result  Appeal allowed. New Trial ordered.

13 March 2009.

 

 

Case Number SC 49/2008  
Case Name David McAlister v Air New Zealand Limited
Summary Civil – Employment Relations Act 2000 – whether the Court of Appeal erred in finding that the demotion of the appellant as flight instructor did not breach a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Act – whether the Court of Appeal erred in finding that flight instructors under the age of 60 and performing the same work as the appellant were not a relevant comparator group for the purposes of ss 104(1)(a) and (b) of the Act – whether the Court of Appeal erred in holding that being of a particular age was a genuine occupational qualification for the appellant’s employment as a flight instructor in terms of s 30(1) of the Human Rights Act 1993.

[2008] NZCA 264 CA 216/07 30 July 2008
Dates Application for leave to appeal granted.
7 October 2008.
Transcript Hearing date : 25 and 26 March 2009

 

 

 

Case Number SC 48/2008  
Case Name Michael Spackman v The Queenstown Lakes District Council and others
Summary Civil resource management applicant sought judicial review of Councils decision to grant resource consent for neighbouring subdivision into four lots error conceded at trial relief granted in the form of revoked approval for one lot and restriction on consent notice for another applicant appealed form of relief Whether the Court of Appeal erred in making allegedly contradictory findings and relying on those findings when deciding whether to grant relief in favour of the applicant whether the Court of Appeal erred when deciding that various discretionary factors overcame the applicant's right to be heard again in respect of the whole subdivision application for leave to appeal out of time

[2008] NZCA 234   CA 193/07   11 July 2008
Dates

Application for leave to appeal dismissed.

Costs of $2000 to both the first and second respondents.

24 October 2008

 

Case Number SC 47/2008  
Case Name Pranfield Holdings Limited and United Fisheries Limited v Minister of Fisheries and others  
Summary Civil Appeal – Commercial fishing – Licence and quota management system – Misfeasance in Public Office – Whether Court of Appeal correctly applied Garrett v Attorney-General [1997] 2 NZLR 332 – Breach of Statutory Duty – Fisheries Act 1983, s 63 – Whether Court of Appeal adopted correct approach toward exercise of discretion under Fisheries Act 1983 – Negligence – Whether Court of Appeal erred in finding no duty of care breached – New Zealand Bill of Rights Act 1990, s 27 – Whether Court of Appeal erred in finding s 27 not engaged – Fisheries Act 1996, ss 308 and 329 – Whether Court of Appeal erred in holding Applicant’s claims for damages and in tort barred by statute.

[2008] NZCA 216 CA 48/07 CA 56/07 10 July 2008
Dates Applications for leave to appeal dismissed.
Costs $2500.00 and disbursements to the respondents

 

Case Number SC 46/2008  
Case Name Duane Charles Brendon Paul Burgess v The Queen
Summary Criminal Appeal – appeal against conviction – sexual assault – miscarriage of justice – whether the Court of Appeal correctly    analysed the evidence – whether there was sufficient time for the applicant to have committed the offence.   
Dates Application for leave to appeal dismissed.
14 October 2008.

 

 

Case Number SC 45/2008  
Case Name

R v The Queen

Summary

Criminal appeal – alleged miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961 – appellant found guilty on six representative counts alleging sexual offending against the complainant – whether the fact that evidence from several potential witnesses was not put before the jury at the trial and the fact that the trial Judge refused to discharge the jury after the complainant made contact with members of the jury have resulted in a miscarriage of justice.
[2008] NZCA 196 CA 32/07 30 June 2008

Dates Application for leave to appeal dismissed.
8 October 2008

 

Case Number SC 44/2008  
Case Name Thornton Estates Limited v Cavell Leitch Pringle & Boyle
Summary

Civil – Breach of fiduciary duty – Breach of duty of care – Negligence – Whether the Court of Appeal erred in finding that there was no basis to intervene to remedy a breach of a fiduciary duty – Whether the Court of Appeal was wrong to find that there is no breach of duty or negligence where a solicitor fails to provide in a contract for passing of risk where the contract provides for a passing of risk when there is a transfer of property – Whether the Court of Appeal was correct in finding that there was no breach of duty by the respondent when it failed to give advice to the appellant on the passing of risk.

[2008] NZCA 191 CA 500/07 27 June 2008

Dates

Notice of Abandonment being lodged, the appeal is deemed to be dismissed.        

2 February 2009

 

 

Case Number SC 43/2008  
Case Name Tareq Abdel Rahim Zaiton v The Queen
Summary Criminal appeal – whether a miscarriage of justice has occurred under s 385(1)(c) of the Crimes Act 1961 – at a previous trial, the complainant had made identifications relating to one charge – the prosecution did not disclose the identifications to the defence until the second trial – whether the Court of Appeal erred in finding that no miscarriage resulted from the Crown’s failure to disclose the information until that point.

[2008] NZCA 189 CA 368/07 26 June 2008
Dates

Application for leave to appeal dismissed.
20 October 2008.

 

 

Case Number SC 42/2008  
Case Name Jamie Ronaki Kissling V The Queen
Summary Criminal – Appeal – Challenge to mandate and jurisdiction of New Zealand Courts in criminal matters – Whether lower Court correct to refuse application for transfer of case to tribal or customary courts of the Te One One tribes.

CRI 2006-070-6764     10 April 2008
    Dates Application for leave to appeal dismissed.
21 August 2008

 

 

Case Number SC 41/2008  
Case Name Matthew BROWN V The Queen
Summary Criminal Appeal – appeal against conviction for injuring with intent – whether applicant had adequate counsel in the Court of Appeal – whether Court of Appeal counsel provided correct advice in relation to waiver of solicitor-client privilege – whether Court of Appeal counsel should have called medical evidence – whether Court of Appeal counsel followed applicant’s instructions in relation to witness subpoenas and cross-examination – whether evidence provided in the Court of Appeal was accurate – whether applicant had adequate counsel at District Court – whether District Court counsel should have called other witnesses – whether District Court counsel should have objected to complainant’s testimony – whether Judge’s summing up was effected by defence provided

[2008] NZCA 156  CA 392/07   9 June 2008
Dates

 Application for leave to appeal dismissed.
 10 October 2008.

 

Case Number SC 40/2008
Case Name

New Zealand Recreational Fishing Council and New Zealand Big Game Fishing Council Inc v Sanford Limited, Sealord Limited and others

Summary

Civil appeal – Fisheries Act 1996 – statutory interpretation issues arising from review of Minister of Fisheries’ exercise of statutory power to fix the Total Allowable Catch (TAC) and Total Allowable Commercial Catch (TACC) – interpretation of the relationship between s 8 (providing that purpose of Act is to provide for utilisation of fisheries resources while ensuring sustainability) and s 21 (providing for matters which the Minister must take into account in setting the Total Allowable Catch) – specifically, whether the TAC and TACC decisions can be characterised as sustainability and utilisation decisions respectively – whether a “global approach” should be taken to the purpose provision whereby it is a guide to government policy that decision-makers are to bear in mind generally, or whether the provision contains mandatory relevant considerations to be taken into account in relation to individual decisions – how the purpose of enabling people to “provide for their social, economic and cultural wellbeing” in s 8(2) is to be interpreted – whether the common law right to fish extends to commercial fishers.
[2008] NZCA 160 CA 163/07 11 June 2008

Result

Application for leave to appeal granted.

2 October 2008

__________________________________

Appeal dismissed. No order as to costs.

28 May 2009

Transcription

Hearing date : 12 February 2009

 

 

Case Number SC 39/2008  
Case Name

Qiwen Huang v The Manager of Custodial Services, Auckland Central Remand Prison

Summary Habeas Corpus [2008] NZCA 225  CA 389/2008  9 July 2008
Dates Application for leave to appeal dismissed. 10 July 2008

 

 

Case Number SC 38/2008  
Case Name Wayne Thomas Patterson v The Queen
Summary [Criminal – sentencing appeal – whether sentence manifestly excessive – the appropriate starting point for serious fraud – whether recovery of funds, under the Proceeds of Crimes Act 1991 or by any other way short of voluntary reparation, should be recognised in sentencing – the admissibility of extraneous material from a Victim Impact Statement under s 9 Evidence Act 2006, and its relationship with the provisions of the Sentencing Act 2002 – relevance, and proof, of overseas convictions in sentencing.

[2008] NZCA 75 CA 573/07 31 March 2008
Dates
Application for leave to appeal is dismissed.
28 August 2008.

 

Case Number SC 37/2008  
Case Name

 Commerce Commission v Infratil Limited

Summary

Civil – Appeal – Trade Practices – Competition – Appropriate test for accessory liability in context of Commerce Act 1986 – Whether Court of Appeal erred in law in departing from orthodox test for accessory liability in Commerce Act context and in applying a test that required knowledge of the facts at a higher level of detail than is required by the orthodox test – Whether the Court of Appeal erred in law in treating a defendant’s belief that there was no breach of s 47 of the Commerce Act as a relevant factor in applying the orthodox test for accessory liability.

Dates

Application for leave to appeal is refused, with costs $2,500 to the respondent.

19 September 2008

 

 

Case Number SC 36/2008  
Case Name

 EW  and PW  v Attorney-General

Summary Civil Appeal – Appeal directly from High Court – Negligence – whether only nominal damages should be awarded for a breach of duty of care in child welfare cases unless the duty required the defendant to commence proceedings – whether there was a duty to commence proceedings – whether vicarious liability exists where child is placed back with family from whom they have been removed – whether test of causation correctly applied – Limitation Act 1950 – whether reasonable discoverability test should be expanded beyond sexual abuse cases – whether reasonable discoverability and disability tests were correctly applied – whether facts supported a finding of exemplary damages – whether a non-delegable duty of care existed – whether applicants were falsely imprisoned when held in secure units – whether applicants were required to prove a ‘counter-factual’ to justify an award of damages – whether the ACC legislation barred the applicant’s claims – whether High Court made correct findings of fact – whether exceptional circumstances exist to justify an appeal directly to the Supreme Court.

CIV 199-485-85 and CIV 2001 - 485 - 864 Wellington High Court

28 November 2008
Dates

Application for leave to appeal dismissed.
15 August 2008

 

 

Case Number SC 35/2008  
Case Name

Hawthorne v Cox

Summary

Civil appeal – costs orders – appeal from decision of the Court of Appeal to refuse leave to appeal from a decision of the High Court not to award costs in favour of the appellant who had successfully challenged a guardianship order – whether leave required when appealing a costs order originating in an appeal – whether the Court of Appeal’s decision not to award costs to the appellant was in the best interests of the child who was the subject of the guardianship order – whether counsel for the child should be immune from a cost order unless there is bad faith or clear incompetence – whether costs may be determined without the need to be heard.

[2008] NZCA 146 CA 509/07 4 June 2007

Dates

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

27 August 2008

 

Case Number SC 34/2008  
Case Name

Jonathan John Edward Belcher v The Queen

Summary Criminal – appeal against conviction – indecent assault and sexual violation – whether the Court of Appeal was correct to find that the trial Judge did not need to dismiss the jury when the appellant alleged he knew a juror – whether the Court of Appeal was right in holding that there was evidence to convict.
Dates

Application for leave to appeal dismissed.

27 March 2009

  
Case Number SC 33/2008
Case Name

Alisdair Bruce Aylwin v New Zealand Police

Summary Criminal – appeal by way of case stated – whether, on a charge of driving with excess breath alcohol, evidence must be given by the prosecution as to the manner in which the breath screening and/or evidential breath tests were carried out – whether the principle of omnia praesumuntur operates to place an evidentiary burden on the defence to raise this question.

[2008] NZCA 154  CA 227/07  6 June 2008
Result

Application for leave to appeal granted.
29 July 2008

__________________________

Appeal dismissed.

19 December 2008

Transcript

Hearing date : 2 December 2008 

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

 

 

Case Number SC 32/2008  
Case Name

Deborah Gordon-Smith v The Queen

Summary

Criminal – Appeal by way of case stated – Juries Act 1981 – Challenge under New Zealand Bill of Rights Act 1990, Privacy Act 1993 and Criminal Records (Clean Slate) Act 2004 to legality and fairness of jury-vetting by Police so as to provide Prosecutor with information including, but not limited to, non-disqualifying criminal histories of persons on jury list – Jurisdiction – Leave on same grounds as King v R (SC 18/2008) sought – Jurisdiction issue relevant to King case sole reason for application for leave and to be included as a party to King case.
[2008] NZCA 79 CA 207/2007 10 April 2008

Dates

25 July 2008 – Application for leave to appeal granted.

______________________

Appeal dismissed.

23 March 2009

Transcription

Hearing date : 10 July 2008

Hearing date : 3 December 2008 

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

 

 

Case Number SC31/2008  
Case Name

Vai Feterika v The Queen

Summary

Criminal Appeal – sentence appeal – wounding with intent to cause grievous bodily harm – whether the sentencing judge gave appropriate consideration to the applicant’s youth and the need for rehabilitation – applicant sentenced to 10 years imprisonment while the principle offender was sentenced to only five and a half years – whether disparity between the offenders is a miscarriage of justice.

[2008] NZCA 127 CA 422/07 20 May 2008

Dates Application for leave to appeal dismissed.
27 August 2008.

 

Case Number SC30/2008  
Case Name

Case Name Paul Joseph Cameronv The Queen

Summary

High Court Gisborne CRN 2006 016 00325

Criminal appeal – Evidence Act 2006 ss 28, 29 and 30 – admissibility of “scenario evidence” (evidence obtained by an investigative technique whereby police invite a suspect to participate with an undercover police officer in a constructed event designed to simulate criminal activity) – applicant made statements to undercover police officer posing as gang leader that were admitted in Court against him – whether, under s 29(4)(d), a threat, promise or representation must only be taken into account in determining whether a statement was influenced by oppression if it were made by a person in authority – further, whether evidence should be excluded for unreliability or improperly being obtained under s 28 and s 30 respectively.

Dates

 Application for leave to appeal dismissed.
 1 August 2008

 

Case Number SC29/2008  
Case Name

Albany Tuhuru Tainui v The Queen

Summary Criminal – appeal against conviction – charges of sexual violation by unlawful sexual connection – whether the Court of Appeal erred in its approach towards an appeal against juror and Court staff misconduct – whether the Court of Appeal erred in admitting evidence that could be prejudicial to the accused or was propensity evidence.

[2008] NZCA 119 CA 653/07 16 May 2008

Dates Application for leave to appeal dismissed.
31 July 2008

 

Case Number SC28/2008  
Case Name

Allen Louis Harriman v The Queen

Summary

Criminal – appeal against conviction and sentence – whether the Court of Appeal erred in finding various photographs, and expert evidence about the use of drug terminology, admissible – whether the Judge’s ‘expert evidence’ direction to the jury was incomplete, because it did not cover the evidence of a defence witness – whether the Judge failed to direct the jury adequately on the effect of the applicant’s partial guilty plea – whether the sentence was manifestly excessive – application for leave to appeal out of time.

[2008] NZCA 53 CA 109/07 11 March 2008

Dates

Application for leave to appeal dismissed.
7 August 2008

 

Case Number SC27/2008  
Case Name

M v The Queen

Summary

Criminal – Appeal against conviction and sentence – Sexual offending – Evidence admissibility – Sentencing – Reparation – Whether, given substantial payment of reparation to complainant, Court of Appeal erred in holding sentence of five and a half years imprisonment not excessive – Whether Court of Appeal erred in holding admission of video interview evidence did not give rise to miscarriage of justice.

[2008] NZCA 112 CA 540/07 5 May 2008

Dates

Application for leave to appeal dismissed.
17 July 2008

 

Case Number SC26/2008  
Case Name

I A Campbell, J Hughes and S C Biss v Craggy Range Vineyard Limited

Summary Civil Appeal – contract interpretation – agreement for sale and purchase of land - whether the respondent could rely on post-contractual events when interpreting contract – whether a grant of a second water right to the respondent gave rise to a separate liability for payment given the grant was obtained after the respondent had declared the clause relating to water rights to be satisfied.[2008] NZCA 96 CA 254/07 CA 462/07 24 April 2008
Dates Notice of abandonment being lodged, the application for leave to appeal is deemed to be dismissed.

 

Case Number SC25/2008  
Case Name

Ester Slee v Michael Ian Slee

Summary

Civil appeal – family law – Child Support Act 1991 – departure order providing for child support – whether the judgement of the Family Court on 29 September 2005 materially changed the position as determined by its judgment of 18 August 2004 – accordingly, whether the appellant’s challenge to the retrospective effect of a departure order made by the Family Court on 18 August 2004 was out of time – whether there is an ability to extend time for appeal - if the appeal is not out of time, whether the Family Court’s assessment of the child support for the year ended 31 March 2003 was correct under the Child Support Act 1991.
[2008] NZCA 85 CA 205/07 18 April 2008

Dates

Application for leave to appeal dismissed. Costs $2,500 to the respondent.
14 August 2008

 

Case Number SC24/2008  
Case Name

Kevin Anthony Lenaghan v The Queen

Summary

Criminal – appeal against conviction – possessing a substance with the intention of using it to produce or manufacture a controlled drug - whether the Court of Appeal erred in concluding that there was adequate evidence to support the jury’s conclusion of possession of a substance – whether the Court of Appeal erred in finding that the trial Judge gave adequate jury directions.

Dates Application for leave to appeal dismissed.
21 July 2008

 

Case Number SC23/2008
Case Name

Mark Moncrieff Stevens and others v Premium Real Estate Limited

Summary

Civil Appeal – Breach of fiduciary duty and Fair Trading Act 1986 – Damages – Advertising and sale of residential property where absence full disclosure by agent to principal of close, ongoing commercial relationship with purchaser – Whether Court of Appeal erred in quantification of damages assessment, including whether correct measure of loss includes profit made by third party (rather than fiduciary) as result of breach of fiduciary duty.

[2008] NZCA 82 CA 31/07 11 April 2008

Results

Leave to appeal and cross appeal granted.
29 July 2008

________________________

The appellants’ appeal is allowed.The respondent’s appeal is dismissed.  The respondent is ordered to pay the appellants damages of $659,813 and to repay to them the commission of $67,050. The judgment sums will bear interest at 7% per annum from 16 July 2004 (the date of settlement).The appellants are awarded costs in this Court of $15,000 and costs in the Court of Appeal of $6,000, together in each case with their reasonable disbursements as fixed by the respective Registrars if not otherwise agreed between the parties.

6 March 2009

 Transcript

Hearing date : 13 November 2008

 

 

Case Number SC22/2008  
Case Name

Carolyn Rochelle Taylor v The Queen

Summary

Criminal – Appeal against conviction on three charges of unlawful possession of airgun, assisting escape from lawful custody and kidnapping – Whether Court of Appeal erred in finding prisoner Appellant assisted to escape (AT) was in lawful custody.
[2007] NZCA 318 CA 40/07 27 July 2007

Dates Notice of abandonment being lodged the application for leave to appeal dismissed.
26 June 2008

 

Case Number SC21/2008  
Case Name

Big River Paradise Limited v Robin Lance Congreve and others

Summary

Civil Appeal - restrictive covenants – whether the Court of Appeal erred in concluding that the applicant’s proposed development would be a subdivision for the purpose of a restrictive covenant - whether the word “subdivision” in the restrictive covenant should be interpreted with reference to the definition of “subdivision of land” in the Resource Management Act 1991 – whether restrictive covenants should be interpreted purposively – whether the Court of Appeal correctly determined the purpose of the restrictive covenant in this case

[2008] NZCA 78 CA 135/06 9 April 2008

Dates

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

20 June 2008.

 

Case Number SC20/2008  
Case Name

Alan Ivor Greer v The Queen

Summary

Summary Criminal appeal – bail – whether the Court of Appeal was wrong to refuse the appellant’s application for bail pending hearing of his appeal against sentence – whether undue delay in processing the appeal has hindered the appellant’s ability to prepare for his appeal against sentence – whether inadequate facilities available to the appellant as a sentenced prisoner have prevented the appellant from adequately preparing for the appeal.

[2008] NZCA 90 CA 179/06 17 April 2008

Dates

Application for leave to appeal dismissed.
9 May 2008

 

Case Number SC19/2008  
Case Name

Arthur William Taylor v The Queen

Summary

Criminal – appeal against conviction and sentence – charges of escape from lawful custody and unlawful detention – whether the Court of Appeal was correct in finding in R v Carolyn Rochelle Taylor [2007] NZCA 318 that the applicant was at the time in lawful custody – whether the Trial Judge was correct to reject a plea under s 357 Crimes Act 1961 for previous acquittal on the unlawful detention charge - whether the sentence was excessive, or a minimum term appropriate.

CRI 2005 085 5744 19 December 2007

Dates

Application for leave to appeal dismissed.
26 May 2008.

 
Case Number SC 18/2008  
Case Name

Shaun Antony King v The Queen

Summary

Criminal – appeal by way of case stated – Juries Act 1981 – applicant challenges the legality and fairness of jury-vetting, under the New Zealand Bill of Rights Act 1990, the Privacy Act 1993 and the Criminal Records (Clean Slate) Act 2004 – whether controls should operate over prosecution use of information including, but not limited to, the criminal history of a potential jury member – whether disclosure by the prosecution to the defence should be required in relation to such information.

[2008] NZCA 79 CA 207/2007 10 April 2008

Transcript Hearing date : 10 July 2008

 

Case Number SC 17/2008  
Case Name

Ahmad Zanzoul v The Queen

Summary

Criminal appeal – applicant convicted after pleading guilty pursuant to s 153A of the Summary Proceedings Act 1957 on an information laid under s 31(1)(f)(ii) of the Passports Act 1992 – sentenced to 15 months imprisonment with leave to apply for home detention – whether the conviction and sentence is a nullity for want of legal certainty or vagueness of the provisions dealing with the indictable and summary jurisdiction for penalty purposes – alternatively, whether the Court of Appeal erred in law by constructing the legislation to the applicant’s detriment in failing to apply the lesser penalty where the legislation was “complex and confusing” – additionally, whether admissions were obtained without informing the applicant of his rights not to incriminate himself, to silence, and to obtain a lawyer in breach of the New Zealand Bill of Rights Act 1990 – whether, under art 36 of the Vienna Convention on Consular Relations read in conjunction with the Refugee Convention, the applicant should, as a refugee claimant, have been provided on detainment with advice by a consular or appropriate international official – whether a Hansen declaration should be made with regard to this issue – whether the applicant’s hearing before the Refugee Status Appeals Authority was unlawful for lack of independence and impartiality on the principles of Charanjit Singh v Secretary of State for the Home Department [2003] ScotCS 342 – whether the Court of Appeal erred in fact and law in finding and taking into account that there is nothing linking the appellant’s possession of a false Australian passport with his claim for refugee status – whether the Court of Appeal erred in law in taking into account that the applicant was not in the situation of many refugee claimants – application for name suppression.

CA 297/06 6 December 2006

Dates

Application for leave to appeal is dismissed.
10 June 2008

 

Case Number SC 16/2008  
Case Name

Media 1 Limited v N W Shanks and Wilson McKay Trustee Company and ors

Summary

Civil – validity of termination of lease – whether notice of termination of lease was sufficiently clear and unambiguous as to how and when the termination would operate and what steps were required by the other party to prevent the termination – whether the Court of Appeal was right to assume that the phrase in the notice “pursuant to its rights” was an invocation of the termination provisions of the lease – whether the reaction of the recipient and their legal advisors to the notice was relevant to the interpretation of the validity of the notice.
[2008] NZCA 77 CA292/07 5 March 2008

Dates

Application for leave to appeal dismissed. Costs $2,500 to the respondent.
7 May 2008

 

Case Number SC 15/2008  
Case Name

Ngai Tahu Properties Lmited v Central Plains Water Trust and Canterbury Regional Council

Summary

Civil – Resource Management Act 1991 (RMA) – competing resource consent applications to take (and use) water from a finite natural resource – whether the Court of Appeal majority assessed the priority of claims correctly – whether the “ready for notification” test should apply in such cases – how a consent authority decision not to proceed with notification under s 91 RMA should affect priority of claims.

[2008] NZCA 71 CA69/07 19 March 2008

Result

Application for leave to appeal granted.

24 June 2008

_________________

Interim decision released 

26 March 2009

______________

Notice of Abandonment being lodged the appeal is deemed to be dismissed.

2 June 2009

Transcript Hearing date 13 and 14 October 2008

 

 

Case Number SC 14/2008  
Case Name

Jonathan Nuki Lummis Jarden v The Queen

Summary

Criminal Appeal – conspiracy to supply methamphetamine – appeal against sentence - whether a Court should use sentencing guidelines based on actual supply of specified weights of drugs when considering a sentence for conspiracy to supply an unspecified quantity of drugs - whether the Court of Appeal considered such a distinction when dismissing the appeal to that Court

[2008] NZCA 48 CA292/07 5 March 2008

Dates

Application for leave to appeal granted.
9 May 2008

_________________________

Appeal allowed. Sentence of three years imprisonment
quashed. Sentence of two years six months imprisonment substituted.
28 August 2008

Transcription Hearing date : 27 May 2008

 

 

Case Number SC13/2008  
Case Name

New Zealand Exchange Limited v Bank of New Zealand, Access Brokerage Limited (in liquidation) and Deloitte Touche Tohmatsu

Summary

Civil – appeal from strike-out application – second respondent in liquidation, first and third respondents brought actions against NZX in contract and tort - whether the Court of Appeal was correct to conclude that NZX owes personal duties of care to individual clients or to individual brokers, to protect each of them from economic loss due to broker’s dishonesty or negligence in relation to client funds held on trust – whether the Court of Appeal was right to find that the breach of such a duty (if owed) is sufficiently legally causative of loss – whether the Court of Appeal was correct in holding that the Securities Commission is the “primary regulator” of the New Zealand Stock Exchange, and not NZX.

2008] NZCA 25 CA236/06 22 February 2008

Transcript Hearing date: 7 July 2008

 

 

Case Number SC12/2008  
Case Name

Timothy Justin Nevin v The Queen

Summary

Criminal – appeal against conviction – charges of assault with a weapon and possession of an offensive weapon – whether Court of Appeal erred in its consideration of other cases involving inconsistent verdicts – whether Court of Appeal erred in its analysis of evidence given at trial.

Dates Application for leave to appeal dismissed.
20 May 2008

 

Case Number SC11/2008  
Case Name

SC 11/2008

Summary

Robert Charles De Bruin v The Queen
Criminal appeal – applicant’s indictment was amended after his preliminary hearing to provide that he would be charged jointly with his co-accused – whether applicant had standing to attend the preliminary hearing of his co-accused – whether applicant’s inability to do so rendered his trial unfair so that a miscarriage of justice has occurred.

[2007] NZCA 600 CA 296/06 21 December 2007

Dates Application for leave to appeal dismissed. 1 May 2008

 

Case Number SC10/2008  
Case Name Astrid Eleanor Delany v The Queen
Summary

Appeal against order under the Proceeds of Crime Act 1991 - Court of Appeal held that the High Court had correctly calculated a pecuniary penalty order under s 25 of $1 million – whether first appellant more than a mere courier for the purposes of calculating the benefit received under s 27(2) – whether Court of Appeal wrong to follow R v Penderson [1995] 2 NZLR given position of couriers has not been resolved – whether Court of Appeal in error in upholding the High Court decision that the increase in value of the property was a benefit from the offending under s 28 – whether Court of Appeal was correct in finding that the appellants’ agreement under s 21 of the Property (Relationships) Act 2004 was intended to defeat the interests of the Crown as a creditor of the appellant – whether, given the second appellant’s appeal was successful in part, the Court of Appeal erred in ordering that the legal costs should be paid from the second appellant’s interest in the property.

[2007] NZCA 600 CA 332/06 21 December 2007

Dates Application for leave to appeal dismissed. 1 May 2008

 

Case Number SC9/2008  
Case Name

SC 9/2008

Summary

Robert Charles De Bruin v The Queen
Appeal against order under the Proceeds of Crime Act 1991 - Court of Appeal held that the High Court had correctly calculated a pecuniary penalty order under s 25 of $1 million – whether first appellant more than a mere courier for the purposes of calculating the benefit received under s 27(2) – whether Court of Appeal wrong to follow R v Penderson [1995] 2 NZLR given position of couriers has not been resolved – whether Court of Appeal in error in upholding the High Court decision that the increase in value of the property was a benefit from the offending under s 28 – whether Court of Appeal was correct in finding that the appellants’ agreement under s 21 of the Property (Relationships) Act 2004 was intended to defeat the interests of the Crown as a creditor of the appellant – whether, given the second appellant’s appeal was successful in part, the Court of Appeal erred in ordering that the legal costs should be paid from the second appellant’s interest in the property.

[2007] NZCA 600 CA 317/06 21 December 2007

Dates Notice of Abandonment being lodged , the appeal is deemed to be dismissed.

4 April 2008

 

Case Number SC 8/2008  
Case Name

Neville James Gibson v Minter Ellison Rudd Watts

Summary

Civil Appeal – proceedings against former legal counsel - whether the Court of Appeal made accurate findings of fact – whether the Court of Appeal was correct to conclude that the respondent had complied with discovery obligations – whether the Court of Appeal had regard to all relevant evidence – whether the Court of Appeal was correct to find that the applicant would not have been entitled to legal aid in earlier proceedings against a third party – whether the respondent had a conflict of interest in earlier proceedings - whether the Court should have considered the applicant’s financial position when awarding costs against him

[2007] NZCA 595 CA 202/065, CA 33/06 21 December 2007

Dates Application for leave to appeal dismissed. Costs $2.500 to respondent. 1 May 2008

 

Case Number SC 7/2008  
Case Name

Elders New Zealand Limited v PGG Wrightson Lmited

Summary

Civil – Contract Law – Whether the Court of Appeal erred in holding that an amalgamation approved under Part 15 of the Companies Act 1993 has the legal consequences provided for in s 219 of that Act – Whether an amalgamating company is entitled to “pick and choose” between Part 13 and Part 15 of the Companies Act 1993 – Whether the terms of the amalgamation order created the effect prescribed in Part 13 even though the order was made pursuant to Part 15 – Whether the applicant was bound by the Part 15 order although the order did not state that the applicant was bound.
[2007] NZCA 596 CA 277/06 21 December 2007

Result

Application for leave to appeal granted.
18 April 2008

_______________________

Appeal dismissed.Costs to respondent $15,000, together with reasonable disbursements.

5 December 2008

Transcript Hearing date : 12 August 2008

 

 

Case Number SC6/2008  
Case Name

Shell (Petroleum Mining) Company Limited and others v Todd Petroleum Mining Company Limited and others

Summary

Civil Appeal – Civil Procedure – Injunction – Contract – Breach – Remedies – Whether Court of Appeal correct to conclude overall contractual arrangements mean STOS not entitled to resign as Maui field Operator and Shell not entitled to encourage its STOS directors to vote in favour of resolution removing STOS as Operator – Whether Court of Appeal correct to conclude MDL/STOS contract of employment enforceable by Todd – Whether injunctive relief, rather than damages, correct remedy for any contract breach proved.

[2007] NZCA 586 CA 144/06 18 December 2007

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

Dates 15 April 2008

 

Case Number SC 5/2008  
Case Name

Philip Joseph Fava v Ekhlas Zaghloul and others

Summary

Civil appeal – Insolvency Act 1967 – High Court declined to approve a composition in satisfaction of debts due to creditors by a bankruptee on the grounds that the composition was not reasonable or calculated to benefit the general body of creditors under s 122(3)(b) - Court of Appeal upheld the decision under s 122(3)(b) and also on the basis that the composition was not expedient to be approved under s 122(3)(d) – whether Court of Appeal erred in failing to allow the appellant the opportunity to make written submissions on the issue of expediency – whether the decision based on expediency was wrong in law.

[2007] NZCA 594 CA 568/07 21 December 2007

Dates Application for leave to appeal dismissed.

7April 2008

 

Case Number SC4 /2008  
Case Name

A v The Queen

Summary

 Criminal – applicant convicted of sexual violation by rape – victim was applicant’s three-year-old daughter – charges were brought after victim was diagnosed with gonorrhoea. Whether alleged expert evidence, supporting the possibility of non-sexual transmission of the disease, renders the conviction unsafe – application for leave to appeal out of time due to newly available evidence.

CA 508/04 28 November 2005

Dates Application for leave to appeal dismissed.

9 April 2008

 

Case Number SC3 /2008  
Case Name

Matini Vaihu v The Attorney-General

Summary

Civil Appeal – New Zealand Bill of Rights Act – Breach – Remedies – Damages – Torture or cruel or degrading or disproportionately severe treatment – Kidney dialysis patient, V, bitten by Police dog – Whether Court of Appeal erred in finding bite inadvertent, not deliberate and lawful, so as to relieve Attorney-General of liability for actions of Police dog under control of handler – Whether bite of innocent bystander by Police dog under control of handler constitutes breach of s 9.

[2007] NZCA 574 CA 180/06 13 December 2007

Dates Application for leave to appeal dismissed.
7 April 2008

 

Case Number SC2 /2008  
Case Name

John Bevan-Smith v Raupo Publishing (NZ) Limited

Summary

Civil Appeal – breach of contract – book publication - whether Court of Appeal should have granted extension of time to file case on appeal – whether agreement between applicant and defendant void because of deceptive conduct – whether the defendant breached due diligence obligations in contract - whether the Court received misleading evidence regarding the motive’s of the defendant – whether High Court made correct findings of fact especially regarding timing of events – whether the Court of Appeal should have reconsidered findings of fact made by the High Court – whether High Court correctly interpreted relevant clauses in contract –whether quantum of lost book sales correctly calculated – whether case should be remitted to the Court of Appeal to be reheard or to the High Court for a new trial.

[2007] NZCA 579 CA 57/07 14 December 2007

Dates Application for leave to appeal dismissed. Costs $1,500 to the respondent.

9 April 2008

 

Case Number SC1 /2008  
Case Name

Ross Francis Hookway v The Queen

Summary

Criminal appeal – whether trial counsel is required to inform an accused of his or her right to instruct counsel and for counsel to be bound by those instructions – whether trial Judge was correct to give a Papadopoulos direction when the jury appeared to be deadlocked.

[2007] NZCA 567 CA 466/06 11 December 2007

Dates Application for leave to appeal dismissed.

9 April 2008