Court of Appeal Judgments of Public Interest
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Case name
Case number
[2020] NZCA 249
Date of Judgment
24 June 2020
Summary
Public works - offer back to former owner.
The Crown purchased land from Aztek Ltd pursuant to s 40 of the Public Works Act 1981 (the Act) for the purposes of intended roading work. Ms Prujean was Aztek's sole director and shareholder. After discovering that the roading work had been completed, but the land had not been used, the appellants sought to ascertain whether there was surplus land that might be offered back to Aztek. They were informed that the land had been exempted from the offer back requirements under s 40(2)(a) of the Act, on the basis that the company had been removed from the register of companies. Aztek had been struck off the register due to a failure to file annual returns under the Companies Act 1993 but was restored to the register in 2015. The appellants challenged the Chief Executive of Land Information New Zealand (LINZ)'s decision that it was impractical to offer the land back to Aztek under s 40 of the Act in the High Court. Muir J rejected the submission that the obligation to endeavour to sell the land back to Aztek under s 40(1) of the Act should be distinguished from the obligation in s 40(2) and should include an obligation to endeavour to sell the land back to Aztek by locating its former sole director and shareholder to ascertain whether she wanted to have Aztek restored to the register for that purpose. The appellants, Aztek and Ms Prujean, appealed that decision.
Held - appeal allowed. The purpose of s 40 of the Act was remedial and should be construed to reflect that purpose. Section 40(2) did not operate as a "prerequisite" to "endeavour to sell" obligation in s 40(1). Reasonable and appropriate inquiries to ascertain whether an offer back to the former owner is possible is required. Such inquiry in this case would have led to Ms Prujean who could readily have been found. Contacting her was part of the reasonable endeavours to sell the land in accordance with s 40(2). Nothing in the Companies Act precluded that interpretation of s 40 of the Act. Nor would that interpretation be onerous on the chief executive. As to the discretion to refuse relief, the Judge had referred to the fact Aztek had been removed due to its failure to file annual returns, tangata whenua interests in the land and Aztek's interest in the land, which he deemed as only commercial in nature. None of these factors justified a refusal to grant relief to the appellants. The Chief Executive's decision to exempt the land from offer back was set aside to be reconsidered in accordance with this judgment.
The Crown purchased land from Aztek Ltd pursuant to s 40 of the Public Works Act 1981 (the Act) for the purposes of intended roading work. Ms Prujean was Aztek's sole director and shareholder. After discovering that the roading work had been completed, but the land had not been used, the appellants sought to ascertain whether there was surplus land that might be offered back to Aztek. They were informed that the land had been exempted from the offer back requirements under s 40(2)(a) of the Act, on the basis that the company had been removed from the register of companies. Aztek had been struck off the register due to a failure to file annual returns under the Companies Act 1993 but was restored to the register in 2015. The appellants challenged the Chief Executive of Land Information New Zealand (LINZ)'s decision that it was impractical to offer the land back to Aztek under s 40 of the Act in the High Court. Muir J rejected the submission that the obligation to endeavour to sell the land back to Aztek under s 40(1) of the Act should be distinguished from the obligation in s 40(2) and should include an obligation to endeavour to sell the land back to Aztek by locating its former sole director and shareholder to ascertain whether she wanted to have Aztek restored to the register for that purpose. The appellants, Aztek and Ms Prujean, appealed that decision.
Held - appeal allowed. The purpose of s 40 of the Act was remedial and should be construed to reflect that purpose. Section 40(2) did not operate as a "prerequisite" to "endeavour to sell" obligation in s 40(1). Reasonable and appropriate inquiries to ascertain whether an offer back to the former owner is possible is required. Such inquiry in this case would have led to Ms Prujean who could readily have been found. Contacting her was part of the reasonable endeavours to sell the land in accordance with s 40(2). Nothing in the Companies Act precluded that interpretation of s 40 of the Act. Nor would that interpretation be onerous on the chief executive. As to the discretion to refuse relief, the Judge had referred to the fact Aztek had been removed due to its failure to file annual returns, tangata whenua interests in the land and Aztek's interest in the land, which he deemed as only commercial in nature. None of these factors justified a refusal to grant relief to the appellants. The Chief Executive's decision to exempt the land from offer back was set aside to be reconsidered in accordance with this judgment.
Case name
Case number
[2020] NZCA 245
Date of Judgment
23 June 2020
Summary
NZBORA-Access to a solicitor.
Mr Kerr was detained by the police at 9.45 pm on a Friday night and required to give a blood sample pursuant to the drink-driving scheme. He asked to speak to a lawyer. When his own lawyer could not be reached, he was referred to a list of lawyers participating in the Police Detention Legal Assistance (PDLA) scheme, who are able to give immediate advice over the telephone to persons detained or arrested by the police. Twelve PDLA lawyers were called but none answered the telephone.
Mr Kerr refused to give a blood sample and was convicted of that offence in the District Court. The High Court dismissed an appeal against conviction. Mr Kerr appealed to this Court with leave. The Ministry of Justice, New Zealand Law Society and New Zealand Bar Association intervened in the appeal.
Did the right to consult and instruct a lawyer, as affirmed by s 23(1)(b) of the New Zealand Bill of Rights Act 1990, imply an obligation on the state to facilitate the availability of legal advisers? Held: No. There was clearly no obligation to guarantee the availability of advisers, as this was not what the section required on its face and would require the Court to enlarge the s 23(1)(b) right beyond that provided by s 24(c) for individuals detained and facing trial. Nor was there an obligation to facilitate advisers' availability, as implying such a duty would amount to the Court determining how the s 23(l)(b) right should be upheld, when that was properly a matter for the executive.
However, it remained incumbent on the executive to afford a detained motorist the facility to exercise the right in a real and practicable way. If the executive chose to do so through the PDLA, then it needed to ensure the scheme fulfilled its purpose of providing contact details of lawyers capable of and willing to provide legal advice to detained persons.
Was there a breach of Mr Kerr's right under s 23(l)(b)? Held: Yes. The evidence showed the PDLA in Canterbury was dysfunctional and that it was more likely than not that no lawyer could be reached, however many attempts were made. The act of providing the list of lawyers to detainees therefore provided little or no facilitation.
Should the evidence be excluded? Held: Yes. The right breached was one of acknowledged importance and although the breach was no occasioned by deliberate carelessness, it resulted from known inadequacies in the PDLA. While the police's ability to administer the drink-driving scheme remained important, facilitation of the right was not difficult, particularly given the ease and speed of modern telecommunication methods.
Mr Kerr was detained by the police at 9.45 pm on a Friday night and required to give a blood sample pursuant to the drink-driving scheme. He asked to speak to a lawyer. When his own lawyer could not be reached, he was referred to a list of lawyers participating in the Police Detention Legal Assistance (PDLA) scheme, who are able to give immediate advice over the telephone to persons detained or arrested by the police. Twelve PDLA lawyers were called but none answered the telephone.
Mr Kerr refused to give a blood sample and was convicted of that offence in the District Court. The High Court dismissed an appeal against conviction. Mr Kerr appealed to this Court with leave. The Ministry of Justice, New Zealand Law Society and New Zealand Bar Association intervened in the appeal.
Did the right to consult and instruct a lawyer, as affirmed by s 23(1)(b) of the New Zealand Bill of Rights Act 1990, imply an obligation on the state to facilitate the availability of legal advisers? Held: No. There was clearly no obligation to guarantee the availability of advisers, as this was not what the section required on its face and would require the Court to enlarge the s 23(1)(b) right beyond that provided by s 24(c) for individuals detained and facing trial. Nor was there an obligation to facilitate advisers' availability, as implying such a duty would amount to the Court determining how the s 23(l)(b) right should be upheld, when that was properly a matter for the executive.
However, it remained incumbent on the executive to afford a detained motorist the facility to exercise the right in a real and practicable way. If the executive chose to do so through the PDLA, then it needed to ensure the scheme fulfilled its purpose of providing contact details of lawyers capable of and willing to provide legal advice to detained persons.
Was there a breach of Mr Kerr's right under s 23(l)(b)? Held: Yes. The evidence showed the PDLA in Canterbury was dysfunctional and that it was more likely than not that no lawyer could be reached, however many attempts were made. The act of providing the list of lawyers to detainees therefore provided little or no facilitation.
Should the evidence be excluded? Held: Yes. The right breached was one of acknowledged importance and although the breach was no occasioned by deliberate carelessness, it resulted from known inadequacies in the PDLA. While the police's ability to administer the drink-driving scheme remained important, facilitation of the right was not difficult, particularly given the ease and speed of modern telecommunication methods.
Case name
Case number
[2020] NZCA 235
Date of Judgment
15 June 2020
Summary
Criminal practice and procedure — miscarriage of justice
The appellant was convicted of murder by jury trial following the death of her then partner. She was sentenced to life imprisonment, with a minimum term of 10 years. She appealed against conviction only, on two grounds. First, that the trial had proceeded based on a statement she made to police following her arrest, that should not have been before the jury because it was obtained in breach of her right to a lawyer and right to silence under s 23 of the New Zealand Bill of Rights Act 1990. Second, the trial was procedurally unfair in terms of s 25(a) of the New Zealand Bill of Rights Act because potential jurors had not been challenged for cause for racial prejudice and no anti-discrimination direction specifically addressing race had been given by the Judge. A challenge for cause was said to be required because the jurors may have been racially prejudiced against the appellant because she was Māori by descent and appearance. These alleged errors were said to have caused a miscarriage of justice within the meaning of s 232(4)(a) and (b) of the Criminal Procedure Act 2011 requiring a retrial.
Held — appeal dismissed. The appellant’s statement had not been improperly obtained and therefore it was not necessary to embark on the balancing process required by 30(2) of the Evidence Act 2006. The appellant had been advised of her rights on three separate occasions including at the outset of the interview in which she gave her statement. The appellant was articulate and understood the questions put to her. There was no evidence she did not understand that her rights to silence and to a lawyer were continuing when the statement was made. The appellant’s second argument was rejected also. Challenges for cause under s 25 of the Juries Act 1981 can be initiated only by a party to the proceedings, and the appellant’s trial counsel did not challenge jurors for cause based on racial prejudice. There was no suggestion of trial counsel error and trial counsel cannot be said to have erred. While jurors may be challenged for cause based on racial bias in Canada, the appellant’s submission asked the Court to conclude that a miscarriage of justice occurred simply because no challenge was made. This would amount to a radical change in the law, and it was not the appropriate case to consider whether to adopt the Canadian position. The Judge gave a general anti-discrimination direction in line with established practice and did not err. No miscarriage of justice occurred.
The appellant was convicted of murder by jury trial following the death of her then partner. She was sentenced to life imprisonment, with a minimum term of 10 years. She appealed against conviction only, on two grounds. First, that the trial had proceeded based on a statement she made to police following her arrest, that should not have been before the jury because it was obtained in breach of her right to a lawyer and right to silence under s 23 of the New Zealand Bill of Rights Act 1990. Second, the trial was procedurally unfair in terms of s 25(a) of the New Zealand Bill of Rights Act because potential jurors had not been challenged for cause for racial prejudice and no anti-discrimination direction specifically addressing race had been given by the Judge. A challenge for cause was said to be required because the jurors may have been racially prejudiced against the appellant because she was Māori by descent and appearance. These alleged errors were said to have caused a miscarriage of justice within the meaning of s 232(4)(a) and (b) of the Criminal Procedure Act 2011 requiring a retrial.
Held — appeal dismissed. The appellant’s statement had not been improperly obtained and therefore it was not necessary to embark on the balancing process required by 30(2) of the Evidence Act 2006. The appellant had been advised of her rights on three separate occasions including at the outset of the interview in which she gave her statement. The appellant was articulate and understood the questions put to her. There was no evidence she did not understand that her rights to silence and to a lawyer were continuing when the statement was made. The appellant’s second argument was rejected also. Challenges for cause under s 25 of the Juries Act 1981 can be initiated only by a party to the proceedings, and the appellant’s trial counsel did not challenge jurors for cause based on racial prejudice. There was no suggestion of trial counsel error and trial counsel cannot be said to have erred. While jurors may be challenged for cause based on racial bias in Canada, the appellant’s submission asked the Court to conclude that a miscarriage of justice occurred simply because no challenge was made. This would amount to a radical change in the law, and it was not the appropriate case to consider whether to adopt the Canadian position. The Judge gave a general anti-discrimination direction in line with established practice and did not err. No miscarriage of justice occurred.
Case number
[2020] NZCA 231
Date of Judgment
11 June 2020
Summary
Appeal allowed. The husband must pay the wife the sum of $700,000 without delay on the terms ordered at [97] of our previous judgment ([2018] NZCA 546). Husband’s application to adduce further affidavit evidence declined. Costs award to wife.
Practice and Procedure – Interlocutory appeal
Relationship Property – Interim Distribution
The High Court ordered sale of the former family home (“Closeburn”) and ordered that each party was to receive an interim distribution of $1.5 million from the proceeds when the property sold. Ms Biggs (“the wife”) was subsequently awarded two interim distributions of $200,000 from Mr Biggs (“the husband”), which would be reimbursed from wife’s share of the sale of Closeburn.
The wife now appeals against an interlocutory judgment of the High Court in which Nation J refused her an additional interim distribution of $1,100,000 to be paid by the husband, from what he maintains is his separate property and accounted for in the ultimate settlement of her claims to relationship and separate property.
Should an additional interim distribution to the wife be ordered?
Held: Yes. The husband has, or can raise, funds to pay the interim distribution sought. Closeburn is undoubtedly relationship property and is susceptible to an order for interim distribution under s 25(3) of the Property (Relationships) Act 1976. As the former family home it is also subject to a powerful presumption of equal sharing. There is no reason to doubt that the amounts the husband has been ordered to pay, plus the distribution now sought, would be repayable from the wife’s share of the proceeds of the Closeburn sale.
The question on which this appeal turns is whether the burden of funding the wife’s costs through trial should be borne by the husband or by the wife’s advisors. An applicant for interim distribution should not be required to engage advisors who are prepared to work on a delayed payment basis when there is a pool of relationship property available to fund the litigation. The wife’s arrangements with her advisors in this case are relevant because her application has been made at a late stage to fund costs already incurred, and the status of the property that will be used to fund the interim distribution, pending sale of Closeburn, is in dispute. A further interim distribution is warranted. It is not reasonable in the circumstances to require that the wife’s advisors continue to bear the entire burden of funding her claim. However, unlike the lawyers and expert witnesses the wife owes, the accounting firm have security and are charging the wife interest.
We order that the husband make an interim distribution that will substantially fund the wife’s
legal and expert witness costs but leaves it to her to decide how the payment is distributed among her advisors. The distribution is intended to balance the competing interests of the wife and the husband, and to ensure that any necessary adjustments can be made from a pool of relationship property the nature and size of which remains to be fixed. We must also recognise that the husband claims to have advanced other sums to the wife and that all of the money he has paid, including interim distributions, may end up being reimbursed from the eventual sale of Closeburn, which seems likely to be delayed for some time. We order that the sum of $700,000 is to be paid to the wife without delay on the terms ordered at [97] of our previous judgment.
Practice and Procedure – Interlocutory appeal
Relationship Property – Interim Distribution
The High Court ordered sale of the former family home (“Closeburn”) and ordered that each party was to receive an interim distribution of $1.5 million from the proceeds when the property sold. Ms Biggs (“the wife”) was subsequently awarded two interim distributions of $200,000 from Mr Biggs (“the husband”), which would be reimbursed from wife’s share of the sale of Closeburn.
The wife now appeals against an interlocutory judgment of the High Court in which Nation J refused her an additional interim distribution of $1,100,000 to be paid by the husband, from what he maintains is his separate property and accounted for in the ultimate settlement of her claims to relationship and separate property.
Should an additional interim distribution to the wife be ordered?
Held: Yes. The husband has, or can raise, funds to pay the interim distribution sought. Closeburn is undoubtedly relationship property and is susceptible to an order for interim distribution under s 25(3) of the Property (Relationships) Act 1976. As the former family home it is also subject to a powerful presumption of equal sharing. There is no reason to doubt that the amounts the husband has been ordered to pay, plus the distribution now sought, would be repayable from the wife’s share of the proceeds of the Closeburn sale.
The question on which this appeal turns is whether the burden of funding the wife’s costs through trial should be borne by the husband or by the wife’s advisors. An applicant for interim distribution should not be required to engage advisors who are prepared to work on a delayed payment basis when there is a pool of relationship property available to fund the litigation. The wife’s arrangements with her advisors in this case are relevant because her application has been made at a late stage to fund costs already incurred, and the status of the property that will be used to fund the interim distribution, pending sale of Closeburn, is in dispute. A further interim distribution is warranted. It is not reasonable in the circumstances to require that the wife’s advisors continue to bear the entire burden of funding her claim. However, unlike the lawyers and expert witnesses the wife owes, the accounting firm have security and are charging the wife interest.
We order that the husband make an interim distribution that will substantially fund the wife’s
legal and expert witness costs but leaves it to her to decide how the payment is distributed among her advisors. The distribution is intended to balance the competing interests of the wife and the husband, and to ensure that any necessary adjustments can be made from a pool of relationship property the nature and size of which remains to be fixed. We must also recognise that the husband claims to have advanced other sums to the wife and that all of the money he has paid, including interim distributions, may end up being reimbursed from the eventual sale of Closeburn, which seems likely to be delayed for some time. We order that the sum of $700,000 is to be paid to the wife without delay on the terms ordered at [97] of our previous judgment.
Case name
Case number
[2020] NZCA 209
Date of Judgment
03 June 2020
Summary
Appeal allowed. Application to have child returned to Australia declined. High Court orders set aside.
Family Law -Care of Children Act 2004.
The mother and the father were living in Australia with their son, H. Following the break-down of their relationship, the mother moved to New Zealand with H, then aged 2 and a half. The New Zealand Central Authority applied to the Family Court on behalf of the father for an order for the return of H to Australia under the Care of Children Act 2004 (the Act). The Family Court was required to order the child's return to Australia under s 105 of the Act, unless one of a limited number of exceptions set out in s 106 applied. Sections 105 and 106 of the Act implement in New Zealand arts 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Family Court declined to order H's return as an exception was made out under s 106(1)(c)(ii)- there is a grave risk that the child's return would place the child in an intolerable situation. The father successfully challenged that determination in the High Court, where the Judge found that the s 106(1)(c)(ii) exception was not made out and ordered that H be returned to Australia. The mother appealed to this Court.
Held: there is a grave risk that the return of H to Australia would place H in an intolerable situation. The impact of return on the abducting parent may be relevant to an assessment of the impact of return on the child. However, the test focuses on the child's situation. If the mother returns to Australia, her financial and housing situation would be precarious. The mother would be living in proximity to the father, whom she fears. The father's convictions for assaulting the mother and breaches of family violence orders and bail conditions provide substantial objective support for those fears, and confirm that the orders the Australian courts have made and may in the future make cannot provide an assurance of effective protection of the mother. The mother will be isolated in Australia with no family or close friends; support from social sector agencies is likely but can only go so far. In these circumstances there is a grave risk of a deterioration in her mental health and/or recurrence of alcohol abuse which would seriously impair her ability to provide care for H and function as an effective parent. That would give rise to an intolerable situation for H. While there may be other possible arrangements for H's care in Australia, a scenario where the mother (his primary carer throughout his entire life) is incapable of functioning as an effective parent due to a deterioration in her mental health and/or recurrence of alcohol abuse, would be intolerable for H.
Family Law -Care of Children Act 2004.
The mother and the father were living in Australia with their son, H. Following the break-down of their relationship, the mother moved to New Zealand with H, then aged 2 and a half. The New Zealand Central Authority applied to the Family Court on behalf of the father for an order for the return of H to Australia under the Care of Children Act 2004 (the Act). The Family Court was required to order the child's return to Australia under s 105 of the Act, unless one of a limited number of exceptions set out in s 106 applied. Sections 105 and 106 of the Act implement in New Zealand arts 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Family Court declined to order H's return as an exception was made out under s 106(1)(c)(ii)- there is a grave risk that the child's return would place the child in an intolerable situation. The father successfully challenged that determination in the High Court, where the Judge found that the s 106(1)(c)(ii) exception was not made out and ordered that H be returned to Australia. The mother appealed to this Court.
Held: there is a grave risk that the return of H to Australia would place H in an intolerable situation. The impact of return on the abducting parent may be relevant to an assessment of the impact of return on the child. However, the test focuses on the child's situation. If the mother returns to Australia, her financial and housing situation would be precarious. The mother would be living in proximity to the father, whom she fears. The father's convictions for assaulting the mother and breaches of family violence orders and bail conditions provide substantial objective support for those fears, and confirm that the orders the Australian courts have made and may in the future make cannot provide an assurance of effective protection of the mother. The mother will be isolated in Australia with no family or close friends; support from social sector agencies is likely but can only go so far. In these circumstances there is a grave risk of a deterioration in her mental health and/or recurrence of alcohol abuse which would seriously impair her ability to provide care for H and function as an effective parent. That would give rise to an intolerable situation for H. While there may be other possible arrangements for H's care in Australia, a scenario where the mother (his primary carer throughout his entire life) is incapable of functioning as an effective parent due to a deterioration in her mental health and/or recurrence of alcohol abuse, would be intolerable for H.
Case name
Case number
[2020] NZCA 202
Date of Judgment
02 June 2020
Summary
Appeal allowed.
The appellant pleaded guilty to and was convicted on one charge of importing methamphetamine (2 kg), one representative charge of importing ephedrine and ten specific charges of importing ephedrine (60 kg in total). He was sentenced by Judge Collins in the District Court at Auckland to 13 years and six months’ imprisonment, with a 40 per cent minimum period of imprisonment, equating to five years and six months. Mr Chai appeals that sentence.
Criminal law — Sentence — starting point. Whether the Judge erred in adopting a starting point that was too high.
Held: yes. Mr Chai’s offending placed him at the bottom end of band five in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 in terms of quantity, but rising because he played a significant operational role, warranting a starting point of 13 years’ imprisonment on the methamphetamine charge. An overall starting point of 16 years’ imprisonment was appropriate given the extent of the ephedrine offending.
Criminal law — Sentence — Mitigation. Whether the Judge erred in giving insufficient credit for personal mitigating factors.
Held: yes. While there was insufficient evidence of remorse, a 10 per cent discount was warranted for Mr Chai’s previous good character and rehabilitative effort and prospects and a five per cent discount was warranted to reflect the fact that Mr Chai is a foreign national with no family support in New Zealand.
Criminal law — Sentence — Minimum period of imprisonment. Whether the Judge erred by imposing a minimum period of imprisonment.
Held: no. A minimum period of imprisonment is required given Mr Chai’s extended involvement in significant commercial dealing, for profit and travel benefits but without regard to the societal harm his actions were causing, and indeed was lenient at 40 per cent.
The appellant pleaded guilty to and was convicted on one charge of importing methamphetamine (2 kg), one representative charge of importing ephedrine and ten specific charges of importing ephedrine (60 kg in total). He was sentenced by Judge Collins in the District Court at Auckland to 13 years and six months’ imprisonment, with a 40 per cent minimum period of imprisonment, equating to five years and six months. Mr Chai appeals that sentence.
Criminal law — Sentence — starting point. Whether the Judge erred in adopting a starting point that was too high.
Held: yes. Mr Chai’s offending placed him at the bottom end of band five in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 in terms of quantity, but rising because he played a significant operational role, warranting a starting point of 13 years’ imprisonment on the methamphetamine charge. An overall starting point of 16 years’ imprisonment was appropriate given the extent of the ephedrine offending.
Criminal law — Sentence — Mitigation. Whether the Judge erred in giving insufficient credit for personal mitigating factors.
Held: yes. While there was insufficient evidence of remorse, a 10 per cent discount was warranted for Mr Chai’s previous good character and rehabilitative effort and prospects and a five per cent discount was warranted to reflect the fact that Mr Chai is a foreign national with no family support in New Zealand.
Criminal law — Sentence — Minimum period of imprisonment. Whether the Judge erred by imposing a minimum period of imprisonment.
Held: no. A minimum period of imprisonment is required given Mr Chai’s extended involvement in significant commercial dealing, for profit and travel benefits but without regard to the societal harm his actions were causing, and indeed was lenient at 40 per cent.
Case number
[2020] NZCA 199
Date of Judgment
29 May 2020
Summary
Application denied.
Application seeking removal of judicial review proceeding, challenging the Chief Ombudsmen’s refusal of consent for the applicant to use the word “ombudsmen” in their name, from High Court, and transfer to Court of Appeal.
Practice and procedure - Removal of proceedings into Court of Appeal. Whether appropriate to
remove proceeding from High Court and transfer to Court of Appeal.
Held: No.
The proceeding is of some importance but is not exceptional. Nor is it unlikely to be determined urgently if first heard in the High Court. Alleged non-compliance with previous
Court of Appeal orders does not justify removal. The Court of Appeal would benefit from the High Court’s factual findings. Removal and transfer would unjustifiably limit appeal rights.
Application seeking removal of judicial review proceeding, challenging the Chief Ombudsmen’s refusal of consent for the applicant to use the word “ombudsmen” in their name, from High Court, and transfer to Court of Appeal.
Practice and procedure - Removal of proceedings into Court of Appeal. Whether appropriate to
remove proceeding from High Court and transfer to Court of Appeal.
Held: No.
The proceeding is of some importance but is not exceptional. Nor is it unlikely to be determined urgently if first heard in the High Court. Alleged non-compliance with previous
Court of Appeal orders does not justify removal. The Court of Appeal would benefit from the High Court’s factual findings. Removal and transfer would unjustifiably limit appeal rights.
Case name
Case number
[2020] NZCA 198
Date of Judgment
29 May 2020
Summary
Appeal allowed. Sentence of 7 years and 7 months' imprisonment on the charge of sexual violation by unlawful sexual connection is quashed and substituted with a sentence of preventive detention. Minimum period of imprisonment of 6 years remains in place. All other sentences imposed by the High Court remain in place and are to be served concurrently.
Criminal law — sentence — preventive detention.
Mr Haerewa plead guilty to charges relating to violent offending against his partner and her children, as well as sexual offending against his partner. Powell J refused to impose a sentence of preventive detention. Instead Mr Haerewa was sentenced to nine years' imprisonment with a minimum period of imprisonment (MPI) of six years. The Solicitor-General appeals his sentence.
Issue: Did the health assessors' reports preclude the availability of the preventive detention?
Held: No. A sentencing judge's task under s 87(2)(c) of the Sentencing Act 2002 is to determine whether they are satisfied that the offender is likely to commit another qualifying sexual or violence offence upon the completion of a finite prison sentence. This task is informed by a number of factors, including the reports provided by health assessors. Unlike Powell J, we are satisfied that the health assessors' reports provide a basis for being satisfied of s 87(2)(c) and agree that the statutory criterion is met. Preventive detention is an available sentence.
Issue: Should a sentence of preventive detention be imposed?
Held: Yes. The criteria in s 87(4) are met. Mr Haerewa's history demonstrates a disturbing pattern of serious offending and has inflicted serious harm upon the wider community. Treatment undergone by Mr Haerewa has not prevented further offending and a lengthy determinate sentence is not sufficient to adequately protect society.
Criminal law — sentence — preventive detention.
Mr Haerewa plead guilty to charges relating to violent offending against his partner and her children, as well as sexual offending against his partner. Powell J refused to impose a sentence of preventive detention. Instead Mr Haerewa was sentenced to nine years' imprisonment with a minimum period of imprisonment (MPI) of six years. The Solicitor-General appeals his sentence.
Issue: Did the health assessors' reports preclude the availability of the preventive detention?
Held: No. A sentencing judge's task under s 87(2)(c) of the Sentencing Act 2002 is to determine whether they are satisfied that the offender is likely to commit another qualifying sexual or violence offence upon the completion of a finite prison sentence. This task is informed by a number of factors, including the reports provided by health assessors. Unlike Powell J, we are satisfied that the health assessors' reports provide a basis for being satisfied of s 87(2)(c) and agree that the statutory criterion is met. Preventive detention is an available sentence.
Issue: Should a sentence of preventive detention be imposed?
Held: Yes. The criteria in s 87(4) are met. Mr Haerewa's history demonstrates a disturbing pattern of serious offending and has inflicted serious harm upon the wider community. Treatment undergone by Mr Haerewa has not prevented further offending and a lengthy determinate sentence is not sufficient to adequately protect society.
Case name
Case number
[2020] NZCA 183
Date of Judgment
27 May 2020
Summary
Appeals against sentences allowed. New sentences substituted.
Criminal law – sentence
The appellants were convicted of manufacturing methamphetamine and related offences. The quantity of methamphetamine manufactured was just over one kilogram, including a flask of liquid containing approximately 461 grams of methamphetamine, which would have resulted in up to 573 grams of final product had the manufacture been completed. Applying R v Fatu, Judge de Ridder considered the quantity of methamphetamine, and the role played by each offender. As to Mr Roberts, the Judge adopted a starting point of 14 years’ imprisonment, applying a one-year uplift for weapons charges. He deducted two years for Mr Roberts’ rehabilitation efforts and time spent on EM bail and allowed a 20 per cent discount for a guilty plea, leading to an end sentence of 10 years and six months’ imprisonment. Mr Watene-Toi was sentenced to 12 years and six months’ imprisonment. The Judge adopted a starting point of 14 years, considering that Mr Watene-Toi played an operational role, and applied a 10 per cent discount for time on EM bail. For Mr Hall the Judge adopted a starting point of 10 years’ imprisonment to account for Mr Hall’s more limited role. After a one-year uplift for weapons charges and a one-year discount for time on EM bail, the final sentence was 10 years’ imprisonment. All three offenders appealed their sentences based on the new guidelines for methamphetamine offending set down in the Court of Appeal’s judgment of Zhang v R.
Held: appeals allowed. Mr Roberts’ submission that the methamphetamine discovered in the liquid should be ignored for the purposes of sentencing was rejected. That amount was clearly going to become methamphetamine and it would be artificial not to take it into account. However, the starting point of 14 years’ imprisonment was too high under Zhang, considering quantity. Considering Mr Roberts’ “leading” role, a starting point of 12 years was appropriate. The combined discount of two years for rehabilitative efforts and time on EM bail given by the Judge was also appropriate. Once the uplift for the weapons charges and the guilty plea discount were applied this led to final sentences of eight years, 10 months’ imprisonment for the manufacture and possession of methamphetamine for supply, to be served concurrently.
As to Mr Watene-Toi, the Judge was correct that he had played a “significant” role in the manufacture of methamphetamine. Considering the quantity of methamphetamine and role, a starting point of nine years’ imprisonment was appropriate under Zhang. Mr Watene-Toi had spent no time on EM bail and counsel conceded that no discount for that factor should have been made. Accordingly, a final sentence of nine years’ imprisonment was substituted.
For Mr Hall, a starting point of eight years, six months’ imprisonment was appropriate. No discount for the fact he was Australian, and his family lived in Australia was warranted. There was also insufficient evidence to warrant a discount for addiction. No discount for good character, as suggested by counsel was warranted either. Mr Hall had no prior convictions but had been in New Zealand for just six months at the time of offending and had produced no other good character evidence. A sentence of eight years and six months was substituted.
Criminal law – sentence
The appellants were convicted of manufacturing methamphetamine and related offences. The quantity of methamphetamine manufactured was just over one kilogram, including a flask of liquid containing approximately 461 grams of methamphetamine, which would have resulted in up to 573 grams of final product had the manufacture been completed. Applying R v Fatu, Judge de Ridder considered the quantity of methamphetamine, and the role played by each offender. As to Mr Roberts, the Judge adopted a starting point of 14 years’ imprisonment, applying a one-year uplift for weapons charges. He deducted two years for Mr Roberts’ rehabilitation efforts and time spent on EM bail and allowed a 20 per cent discount for a guilty plea, leading to an end sentence of 10 years and six months’ imprisonment. Mr Watene-Toi was sentenced to 12 years and six months’ imprisonment. The Judge adopted a starting point of 14 years, considering that Mr Watene-Toi played an operational role, and applied a 10 per cent discount for time on EM bail. For Mr Hall the Judge adopted a starting point of 10 years’ imprisonment to account for Mr Hall’s more limited role. After a one-year uplift for weapons charges and a one-year discount for time on EM bail, the final sentence was 10 years’ imprisonment. All three offenders appealed their sentences based on the new guidelines for methamphetamine offending set down in the Court of Appeal’s judgment of Zhang v R.
Held: appeals allowed. Mr Roberts’ submission that the methamphetamine discovered in the liquid should be ignored for the purposes of sentencing was rejected. That amount was clearly going to become methamphetamine and it would be artificial not to take it into account. However, the starting point of 14 years’ imprisonment was too high under Zhang, considering quantity. Considering Mr Roberts’ “leading” role, a starting point of 12 years was appropriate. The combined discount of two years for rehabilitative efforts and time on EM bail given by the Judge was also appropriate. Once the uplift for the weapons charges and the guilty plea discount were applied this led to final sentences of eight years, 10 months’ imprisonment for the manufacture and possession of methamphetamine for supply, to be served concurrently.
As to Mr Watene-Toi, the Judge was correct that he had played a “significant” role in the manufacture of methamphetamine. Considering the quantity of methamphetamine and role, a starting point of nine years’ imprisonment was appropriate under Zhang. Mr Watene-Toi had spent no time on EM bail and counsel conceded that no discount for that factor should have been made. Accordingly, a final sentence of nine years’ imprisonment was substituted.
For Mr Hall, a starting point of eight years, six months’ imprisonment was appropriate. No discount for the fact he was Australian, and his family lived in Australia was warranted. There was also insufficient evidence to warrant a discount for addiction. No discount for good character, as suggested by counsel was warranted either. Mr Hall had no prior convictions but had been in New Zealand for just six months at the time of offending and had produced no other good character evidence. A sentence of eight years and six months was substituted.
Case name
Case number
[2020] NZCA 179
Date of Judgment
22 May 2020
Summary
Application for leave to appeal out of time granted. Appeal against sentence dismissed.
Criminal law. Sentence – minimum period of imprisonment.
Mr Marong was found guilty of murdering a Christchurch sex worker following trial by jury. He was sentenced to life imprisonment with an MPI of 18 years. Mr Marong now appeals his sentence on the ground that the sentencing Judge did not correctly apply s 104 of the Sentencing At 2002. In particular, increasing the MPI from 17 to 18 years was not appropriate.
Was the High Court’s imposition of an MPI of 18 years correct? Held: yes. The Court had concerns with two aspects of the High Court’s analysis: first the Judge’s suggestion that features of the conduct that are inadequate to make out the presence of one of the specific factors in s 104 can nonetheless cumulatively constitute “exceptional circumstances” in s104(1)(i); secondly the lack of explicit reasoning as to why an MPI of more than 17 years was required.
However, the MPI of 18 years was justified in the circumstances of this case. The offending was calculated or involved lengthy planning, the murder featured a high level of brutality, cruelty, depravity or callousness, and the victim was particularly vulnerable. As seen in similar sentencings, the fact that three features in s 104(1) were present justified an uplift of one year from the mandatory MPI of 17 years.
Criminal law. Sentence – minimum period of imprisonment.
Mr Marong was found guilty of murdering a Christchurch sex worker following trial by jury. He was sentenced to life imprisonment with an MPI of 18 years. Mr Marong now appeals his sentence on the ground that the sentencing Judge did not correctly apply s 104 of the Sentencing At 2002. In particular, increasing the MPI from 17 to 18 years was not appropriate.
Was the High Court’s imposition of an MPI of 18 years correct? Held: yes. The Court had concerns with two aspects of the High Court’s analysis: first the Judge’s suggestion that features of the conduct that are inadequate to make out the presence of one of the specific factors in s 104 can nonetheless cumulatively constitute “exceptional circumstances” in s104(1)(i); secondly the lack of explicit reasoning as to why an MPI of more than 17 years was required.
However, the MPI of 18 years was justified in the circumstances of this case. The offending was calculated or involved lengthy planning, the murder featured a high level of brutality, cruelty, depravity or callousness, and the victim was particularly vulnerable. As seen in similar sentencings, the fact that three features in s 104(1) were present justified an uplift of one year from the mandatory MPI of 17 years.
Case number
[2020] NZCA 170
Date of Judgment
19 May 2020
Summary
Appeal dismissed.
Appeal against a decision of Dobson J striking out appellant’s proceeding under r 5.35B of the High Court Rules 2016 and making a limited restraint order under s 166 of the Senior Courts Act 2016, restraining the appellant or any agent purporting to act on his behalf from commencing any civil proceeding which relates in any way to his adjudication as a bankrupt, or to claimed interests in, or rights arising from, former ownership of land adjoining Palmerston North airport by Trade Lines, this order to have effect for a period of five years. Civil practice and procedure — Whether the Judge erred by striking out the proceeding? Held: no. It was appropriate to strike out the proceeding in circumstances where the statement of claim sought to reopen matters determined in earlier proceedings or which should have been raised in those earlier related proceedings.
Civil practice and procedure — Whether the Judge erred by making the s 166 order?
Held: no. The requirement for at least two proceedings that are or were “totally without merit” was clearly made out, and the degree of abuse of process was profound. Given Mr Faloon’s statement of claim sought to re-open matters already finally determined, it was open to the Judge to issue a limited restraint order prohibiting relitigation of those same matters, without notice and without giving him the opportunity to be heard.
Appeal against a decision of Dobson J striking out appellant’s proceeding under r 5.35B of the High Court Rules 2016 and making a limited restraint order under s 166 of the Senior Courts Act 2016, restraining the appellant or any agent purporting to act on his behalf from commencing any civil proceeding which relates in any way to his adjudication as a bankrupt, or to claimed interests in, or rights arising from, former ownership of land adjoining Palmerston North airport by Trade Lines, this order to have effect for a period of five years. Civil practice and procedure — Whether the Judge erred by striking out the proceeding? Held: no. It was appropriate to strike out the proceeding in circumstances where the statement of claim sought to reopen matters determined in earlier proceedings or which should have been raised in those earlier related proceedings.
Civil practice and procedure — Whether the Judge erred by making the s 166 order?
Held: no. The requirement for at least two proceedings that are or were “totally without merit” was clearly made out, and the degree of abuse of process was profound. Given Mr Faloon’s statement of claim sought to re-open matters already finally determined, it was open to the Judge to issue a limited restraint order prohibiting relitigation of those same matters, without notice and without giving him the opportunity to be heard.
Case number
[2020] NZCA 164
Date of Judgment
15 May 2020
Summary
Appeal dismissed. Cross-appeal dismissed. Appellant to pay the respondent costs for a standard appeal on a band A basis, with certification for second counsel, plus usual disbursements.
Property law - Caveats.
Constitutional law - Crown - Crown agents.
Māori and Māori land - Customary Māori rights.
In Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 the Supreme Court declared that the Crown owed fiduciary duties to reserve 15,100 acres of land for the benefit of the customary owners of land in the Nelson area. Mr Stafford is a plaintiff in Wakatū with standing to claim as a person beneficially entitled by descent to an interest in property in respect of which the Crown owed the fiduciary duties. He asserts that Crown land in the Nelson area is held on an institutional constructive trust for those descendants of the customary owners of the land whom he represents.
Mr Stafford lodged a caveat over a property in Nelson owned by the Accident Compensation Corporation (the ACC) on the basis that the ACC is an instrument of the Crown and its land therefore Crown land and subject to the trust. The ACC applied to the High Court under s 143 of the Land Transfer Act 1952 for an order removing Mr Stafford’s caveat.
In the High Court, Collins J held that Mr Stafford did not have a caveatable interest in the ACC property, but purported to exercise a discretion to sustain the caveat for a month (Accident Compensation Corporation v Stafford [2018] NZHC 218). Mr Stafford appeals the finding that he had no caveatable interest in the ACC property. The ACC cross-appeals the purported exercise of discretion to sustain the caveat.
Is the caveat sustainable? (Mr Stafford’s appeal)
Held: No (Williams J dissenting)
Courtney J:
The ACC is properly regarded as under the control of the Crown only to the extent that ministerial control exists under the relevant legislative provisions. However, even on an expansive view, the ACC’s decision to sell an investment property is not subject to ministerial control sufficient to treat the ACC as an instrument of the Crown in that respect.
Mr Stafford therefore cannot show that he has a proprietary interest in the ACC property arising from the Crown’s fiduciary duties recognised in Wakatū. The ACC, as a separate legal entity, does not owe these duties. It has no obligation to make good a Crown liability that is unrelated to its statutory functions. Nor can Mr Stafford show that any interest he may have in the ACC property is derived from the ACC as the registered proprietor.
Obiter, it is not reasonably arguable that a direction could be issued under s 103 as this would cut across the ACC’s core statutory function of investment. A direction under s 107 would likely be precluded by s 113(1)(b) for bringing about a particular result in respect of particular persons.
Gilbert J:
It is reasonably arguable that an institutional constructive trust could be established over sections 442 and 439, arising from the Crown’s alleged failure to exclude occupied lands from the tenths reserves. However, the caveat does not explain any basis for the claimed interest in section 443, in respect of which the Crown is not alleged to have been in any breach of its fiduciary duties. Additionally, and in agreement with Courtney J, any interest Mr Stafford may have in the ACC land is not derived from ACC as the registered proprietor. This is fatal to the caveat.
Williams J:
It is reasonably arguable that Tauihu iwi have a beneficial interest in the ACC property arising from the Crown’s alleged reduction of the Tenths reserves and failure to exclude occupied lands.
It is also reasonably arguable that this interest derives from ACC as the registered proprietor because ACC may be treated as the Crown, and the Crown’s obligations its obligations. This is a matter of public, not private law; and is so first because ACC is statutorily designated a Crown agent, and second because the executive has sufficient operational control over ACC to satisfy the common law control test for present purposes. Section 15(b) of the Crown Entities Act 2004 cannot logically displace this because the very operation of the control test is premised on separate legal personality.
The degree of control over ACC is evidenced by, among other things: 1) existing mechanisms in place allowing government scrutiny over Crown agencies’ land disposals; and 2) and the Minister’s ability to issue a policy direction under either s 103 or s 107 of the Crown Entities Act in respect of ACC’s investments.
Such a direction is arguably possible in this case because, depending on the wording of the direction, it would not necessarily be inconsistent with ACC’s objectives, even if it does not further them. Nor would it necessarily be barred by s 113 of the Crown Entities Act. A direction that ACC not sell the property does not relate to particular persons; but in any case, Tauihu iwi are not “particular” persons any more than the residents of Nelson.
Is there a discretion to sustain a caveat without a reasonably arguable case? (the ACC’s cross-appeal)
Held (unanimously): This issue is moot and there is no reason for the Court to rule on it in this case.
Property law - Caveats.
Constitutional law - Crown - Crown agents.
Māori and Māori land - Customary Māori rights.
In Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 the Supreme Court declared that the Crown owed fiduciary duties to reserve 15,100 acres of land for the benefit of the customary owners of land in the Nelson area. Mr Stafford is a plaintiff in Wakatū with standing to claim as a person beneficially entitled by descent to an interest in property in respect of which the Crown owed the fiduciary duties. He asserts that Crown land in the Nelson area is held on an institutional constructive trust for those descendants of the customary owners of the land whom he represents.
Mr Stafford lodged a caveat over a property in Nelson owned by the Accident Compensation Corporation (the ACC) on the basis that the ACC is an instrument of the Crown and its land therefore Crown land and subject to the trust. The ACC applied to the High Court under s 143 of the Land Transfer Act 1952 for an order removing Mr Stafford’s caveat.
In the High Court, Collins J held that Mr Stafford did not have a caveatable interest in the ACC property, but purported to exercise a discretion to sustain the caveat for a month (Accident Compensation Corporation v Stafford [2018] NZHC 218). Mr Stafford appeals the finding that he had no caveatable interest in the ACC property. The ACC cross-appeals the purported exercise of discretion to sustain the caveat.
Is the caveat sustainable? (Mr Stafford’s appeal)
Held: No (Williams J dissenting)
Courtney J:
The ACC is properly regarded as under the control of the Crown only to the extent that ministerial control exists under the relevant legislative provisions. However, even on an expansive view, the ACC’s decision to sell an investment property is not subject to ministerial control sufficient to treat the ACC as an instrument of the Crown in that respect.
Mr Stafford therefore cannot show that he has a proprietary interest in the ACC property arising from the Crown’s fiduciary duties recognised in Wakatū. The ACC, as a separate legal entity, does not owe these duties. It has no obligation to make good a Crown liability that is unrelated to its statutory functions. Nor can Mr Stafford show that any interest he may have in the ACC property is derived from the ACC as the registered proprietor.
Obiter, it is not reasonably arguable that a direction could be issued under s 103 as this would cut across the ACC’s core statutory function of investment. A direction under s 107 would likely be precluded by s 113(1)(b) for bringing about a particular result in respect of particular persons.
Gilbert J:
It is reasonably arguable that an institutional constructive trust could be established over sections 442 and 439, arising from the Crown’s alleged failure to exclude occupied lands from the tenths reserves. However, the caveat does not explain any basis for the claimed interest in section 443, in respect of which the Crown is not alleged to have been in any breach of its fiduciary duties. Additionally, and in agreement with Courtney J, any interest Mr Stafford may have in the ACC land is not derived from ACC as the registered proprietor. This is fatal to the caveat.
Williams J:
It is reasonably arguable that Tauihu iwi have a beneficial interest in the ACC property arising from the Crown’s alleged reduction of the Tenths reserves and failure to exclude occupied lands.
It is also reasonably arguable that this interest derives from ACC as the registered proprietor because ACC may be treated as the Crown, and the Crown’s obligations its obligations. This is a matter of public, not private law; and is so first because ACC is statutorily designated a Crown agent, and second because the executive has sufficient operational control over ACC to satisfy the common law control test for present purposes. Section 15(b) of the Crown Entities Act 2004 cannot logically displace this because the very operation of the control test is premised on separate legal personality.
The degree of control over ACC is evidenced by, among other things: 1) existing mechanisms in place allowing government scrutiny over Crown agencies’ land disposals; and 2) and the Minister’s ability to issue a policy direction under either s 103 or s 107 of the Crown Entities Act in respect of ACC’s investments.
Such a direction is arguably possible in this case because, depending on the wording of the direction, it would not necessarily be inconsistent with ACC’s objectives, even if it does not further them. Nor would it necessarily be barred by s 113 of the Crown Entities Act. A direction that ACC not sell the property does not relate to particular persons; but in any case, Tauihu iwi are not “particular” persons any more than the residents of Nelson.
Is there a discretion to sustain a caveat without a reasonably arguable case? (the ACC’s cross-appeal)
Held (unanimously): This issue is moot and there is no reason for the Court to rule on it in this case.
Case name
Case number
[2020] NZCA 156
Date of Judgment
08 May 2020
Summary
Application for removal of judicial review proceeding challenging lockdown notices from High Court, and transfer to Court of Appeal, declined.
Case name
Case number
[2020] NZCA 144
Date of Judgment
04 May 2020
Summary
Appeals dismissed. Interim name suppression order. No order for costs.
Practice and procedure — Habeas Corpus.
The appellants have applied for writs of habeas corpus due to the impact of the New Zealand Government’s response to COVID-19 on them. The High Court Judge declined to issue the writs as detention for the purposes of the Habeas Corpus Act 2001 (the Act) was not established. Even if there was detention, the Judge considered it would be lawful. The Judge also declined to grant name suppression, although made an order for interim name suppression to accommodate an appeal to this Court on the issue. The appellants appeal the High Court’s judgment.
Issue: Did the High Court err when it declined to issue writs of habeas corpus in favour of the appellants?
Held: No. The restrictions under the Health Act (COVID-19 Alert Level 3) Order 2020 do impinge on a person’s movements, but still allow for a wide range of activity. Business, services and workplaces that have the relevant infection measures in place can be accessed. Outdoor exercise and recreation can be engaged in and bubbles arrangements extended within certain limits. The appellants’ liberty has not been restrained for the purposes of the Act.
Even if they were detained, the Crown would not have to establish that the detention was lawful as habeas corpus is not the appropriate procedure for considering the appellants’ allegations. An expedited application for judicial review should be made to resolve the complex legal questions at issue in this case.
Issue: Did the High Court err when it declined applications for interim name suppression by the appellants in relation to their proceedings?
Held: No. The concerns raised by the appellants are not sufficient to displace the principle of open justice. To enable an appeal to the Supreme Court on this point, interim name suppression can continue until 4.00 pm on 8 May 2020 or such other time as the Supreme Court may determine
Practice and procedure — Habeas Corpus.
The appellants have applied for writs of habeas corpus due to the impact of the New Zealand Government’s response to COVID-19 on them. The High Court Judge declined to issue the writs as detention for the purposes of the Habeas Corpus Act 2001 (the Act) was not established. Even if there was detention, the Judge considered it would be lawful. The Judge also declined to grant name suppression, although made an order for interim name suppression to accommodate an appeal to this Court on the issue. The appellants appeal the High Court’s judgment.
Issue: Did the High Court err when it declined to issue writs of habeas corpus in favour of the appellants?
Held: No. The restrictions under the Health Act (COVID-19 Alert Level 3) Order 2020 do impinge on a person’s movements, but still allow for a wide range of activity. Business, services and workplaces that have the relevant infection measures in place can be accessed. Outdoor exercise and recreation can be engaged in and bubbles arrangements extended within certain limits. The appellants’ liberty has not been restrained for the purposes of the Act.
Even if they were detained, the Crown would not have to establish that the detention was lawful as habeas corpus is not the appropriate procedure for considering the appellants’ allegations. An expedited application for judicial review should be made to resolve the complex legal questions at issue in this case.
Issue: Did the High Court err when it declined applications for interim name suppression by the appellants in relation to their proceedings?
Held: No. The concerns raised by the appellants are not sufficient to displace the principle of open justice. To enable an appeal to the Supreme Court on this point, interim name suppression can continue until 4.00 pm on 8 May 2020 or such other time as the Supreme Court may determine
Case number
[2020] NZCA 113
Date of Judgment
24 April 2020
Summary
Appeal dismissed.
The appellant Bathurst acquired mining rights from the respondent. Part of the purchase price was deferred. A first performance payment of US$40 million was payable when 25,000 tonnes of coal was “shipped from the Permit Areas”. Despite mining more than 50,000 tonnes of coal from the permit areas, the appellant says the first performance payment has not been triggered, because less than 25,000 tonnes was exported. The mining operation was mothballed by the appellant. It says the sale agreement enables it to postpone the first performance payment so long as it pays royalties at a higher rate on any coal sold, albeit no coal is being mined and little coal is being sold.
The High Court declared the first performance payment due and owing under the agreement of sale to the respondent and ordered the appellant pay US$40 million to the respondent plus interest and costs.
Contract – Interpretation. Whether the Judge found the correct meaning of “shipped from the Permit Areas” in cl 3.4 of the sale agreement.
Held: Yes. An objective observer, cognisant of context, would not conclude that the words “coal … shipped from the Permit Areas” meant only coal shipped for export. The Court adopted the reasons given by the High Court Judge, but without reference to evidence of the appellant’s subsequent conduct. This was evidence of the unilateral conduct of one party only, and equally consistent with a unilateral mistaken understanding as with any reflection of the parties’ common understanding.
Contract – Interpretation. Whether the Judge correctly identified the true effect of cl 3.10 of the sale agreement.
Held: Yes. Clause 3.10 (introduced by amendment in 2012) was intended to change rather than clarify rights under the sale agreement. The amendment was expressed to be “[f]or the avoidance of doubt”, implying a measure of practical and economic insignificance. No material counter-concession was given by the appellant. It suspended the respondent’s right to sue “for so long as the relevant royalty payments continue to be made”. An objective observer would conclude that the conditional suspension of the right to sue would not apply where merely nominal royalties were paid on sales from a stockpile of coal left after mining has ceased. Those would not be the “relevant royalty payments”, the continuation of which was required for suspension of the right to sue. Accordingly, the respondent’s right to sue the appellant for the US$40 million debt was not suspended.
Contract – Implied terms. Whether a term should be implied requiring the appellant to undertake substantive continuing levels of production (cross appeal by respondent).
Held: No. The essence of the implication advanced was the interpretation already given to cl 3.10 - making the implication of a term unnecessary.
The appellant Bathurst acquired mining rights from the respondent. Part of the purchase price was deferred. A first performance payment of US$40 million was payable when 25,000 tonnes of coal was “shipped from the Permit Areas”. Despite mining more than 50,000 tonnes of coal from the permit areas, the appellant says the first performance payment has not been triggered, because less than 25,000 tonnes was exported. The mining operation was mothballed by the appellant. It says the sale agreement enables it to postpone the first performance payment so long as it pays royalties at a higher rate on any coal sold, albeit no coal is being mined and little coal is being sold.
The High Court declared the first performance payment due and owing under the agreement of sale to the respondent and ordered the appellant pay US$40 million to the respondent plus interest and costs.
Contract – Interpretation. Whether the Judge found the correct meaning of “shipped from the Permit Areas” in cl 3.4 of the sale agreement.
Held: Yes. An objective observer, cognisant of context, would not conclude that the words “coal … shipped from the Permit Areas” meant only coal shipped for export. The Court adopted the reasons given by the High Court Judge, but without reference to evidence of the appellant’s subsequent conduct. This was evidence of the unilateral conduct of one party only, and equally consistent with a unilateral mistaken understanding as with any reflection of the parties’ common understanding.
Contract – Interpretation. Whether the Judge correctly identified the true effect of cl 3.10 of the sale agreement.
Held: Yes. Clause 3.10 (introduced by amendment in 2012) was intended to change rather than clarify rights under the sale agreement. The amendment was expressed to be “[f]or the avoidance of doubt”, implying a measure of practical and economic insignificance. No material counter-concession was given by the appellant. It suspended the respondent’s right to sue “for so long as the relevant royalty payments continue to be made”. An objective observer would conclude that the conditional suspension of the right to sue would not apply where merely nominal royalties were paid on sales from a stockpile of coal left after mining has ceased. Those would not be the “relevant royalty payments”, the continuation of which was required for suspension of the right to sue. Accordingly, the respondent’s right to sue the appellant for the US$40 million debt was not suspended.
Contract – Implied terms. Whether a term should be implied requiring the appellant to undertake substantive continuing levels of production (cross appeal by respondent).
Held: No. The essence of the implication advanced was the interpretation already given to cl 3.10 - making the implication of a term unnecessary.
Case number
[2020] NZCA 98
Date of Judgment
09 April 2020
Summary
Appeal allowed. Cross-appeals dismissed.
From 2010 Psa3, a virulent strain of a plant disease that destroys kiwifruit plants, swept through kiwifruit orchards in the Bay of Plenty region. It took several years for the industry to re-establish itself. Psa3 was said to have been introduced to New Zealand by a consignment of kiwifruit pollen imported into New Zealand in June 2009 from China for the new use of commercial artificial pollination of kiwifruit orchards. Strathboss (a grower) and Seeka (a post- harvest operator) alleged that the Crown was liable to kiwifruit growers and post-harvest operators for granting an import permit in 2007 and renewing that permit in 2009 without undertaking a risk assessment, and for failing to inspect the consignment when it arrived in New Zealand.
In the High Court, the Judge found the Crown liable to Strathboss in relation to the grant of the import permit. She cleared the Crown of liability for failure to inspect the pollen, and of liability to Seeka. The Crown appealed the permit finding. Strathboss cross-appealed in relation to the failure to inspect. Seeka cross-appealed in relation to the dismissal of its claim.
In this judgment, the appeal is allowed. The Crown cannot be liable directly in tort by reason of the Crown Proceedings Act 1950, and a statutory immunity precluded vicarious liability for the alleged negligent individual acts or omissions.
Crown – Civil liability. Can the Crown be directly liable (as opposed to vicariously liable) in tort?
Held: no. The Crown cannot be liable directly in tort by reason of the Crown Proceedings Act. Its liability, if any, must be vicarious. That means the respondents must first identify direct liability on the part of individual Crown servants or agents from the Ministry of Agriculture and Fisheries (MAF), the agency responsible for border control at the relevant times, before the Crown can be vicariously liable in tort.
Crown – Civil liability. Did the High Court err in holding that s 163 of the Biosecurity Act 1993 did not apply to the acts or omissions of MAF personnel at the pre-border stage?
Held: yes. Section 163 of the Biosecurity Act provides an immunity in respect of the acts or omissions of MAF personnel at the pre-border stage. There is no logical reason to distinguish between those formally appointed in terms of the Biosecurity Act and those who provide administrative and advisory support to those people and the statutory context and legislative record indicates that “reasonable cause” in s 163 is not synonymous with “reasonable care”.
Crown – Civil liability. Did the High Court err in holding that s 163 of the Biosecurity Act applied to the acts or omissions of MAF personnel at the border clearance stage.
Held: no. For the same reasons as above, s 163 of the Biosecurity Act applies to the acts or omissions of MAF personnel at the border clearance stage.
Crown – Civil liability. Did the High Court err in holding that the Crown cannot take the benefit of the immunity under s 163 (to the extent it applied to the acts or omissions of any MAF personnel) pursuant to s 6 of the Crown Proceedings Act?
Held: yes. The Crown takes the benefit of this immunity pursuant to s 6(1) of the Crown Proceedings Act. Inasmuch as no cause of action can lie against the individual personnel
responsible, nor can one lie against the Crown vicariously.
The above reasoning determined the appeal and cross-appeals. However, in case the proceeding should be considered further in another jurisdiction, duty and breach was then analysed by the Court as if the immunity issue had been answered in favour of the respondents.
Negligence – Duty of care. Did the High Court err in finding that MAF personnel owed a duty of care to Strathboss and some members of the Strathboss class, to take reasonable skill and care in their actions or omissions prior to the New Zealand Psa3 incursion to avoid physical damage to property, and to take care to avoid loss consequential on that damage to property?
Held: yes. The Court would have found that no duty of care was owed. Although there was sufficient proximity (and a tortious duty was not excluded by statute), policy factors, in particular the risk of indeterminate liability (extending to all “risk goods”), meant it would not be fair, just and reasonable to impose a duty of care in these circumstances.
Negligence – Breach. Did the High Court err in holding that MAF personnel breached their duty of care by acts or omissions at the pre-border stage?
Held: no. Had a duty of care been owed, the Court would have found that the relevant MAF personnel had acted in breach of the alleged duty by granting the import permits without undertaking an effective risk assessment in relation to the intended new use.Negligence – Causation. Did the High Court err in holding that the acts or omissions at the pre-border stage caused the clearance and release of the June 2009 consignment?
Held: no. Had a duty of care been owed, the Court would have found that granting the import permits without undertaking an effective risk assessment had a causative effect. Had an effective risk assessment been undertaken, it is more likely than not that any permit granted would have incorporated an express condition requiring some level of post-entry quarantine that would have, in turn, detected the presence of the Psa3 virus.
Negligence – Breach. Did the High Court err in holding that MAF personnel did not breach their duty of care in (1) failing to impose a condition requiring microscopic inspection;(2) permitting pollen to be “milled prior to import”; and (3) failing to consider the risk posed by kiwifruit pollen imports following the Italian outbreak of Psa3 and/or finding that such breaches did not cause the clearance and release of the June 2009 consignment?
Held: yes, in part. Had a duty of care been owed, the Court would have found that the wording of the import permit (allowing for both milled and unmilled pollen) would have been in breach of duty, but the failure to impose a microscopic inspection condition would not have had any causative effect and there was an insufficient evidential foundation to conclude that there was a negligent failure to consider the risk posed by kiwifruit pollen imports following the Italian outbreak of Psa3.
Negligence – Duty of care. Did the High Court err in holding that MAF personnel owed a duty of care to Strathboss and members of the Strathboss class in respect of the clearance of the June 2009 consignment?Held: yes. For essentially the same reasons as the first cause of action, the Court would have found no duty of care to exist. While there was sufficient proximity for a duty of care to exist, policy factors, in particular indeterminacy, meant it would not be fair, just and reasonable to impose a duty of care in the circumstances.
Negligence – Breach. Did the High Court err in holding that MAF personnel did not breach their duty of care by acts or omissions at the border clearance stage and/or that any breaches did not cause the clearance and release of the June 2009 consignment?
Held: yes. Had a duty of care been owed, the Court would have found the failure to inspect the June 2009 consignment fell below the standard of care expected of skilled and informed MAF personnel in the circumstances. However that failure had no causative effect because the permit made provision for unmilled pollen.
Negligence – Causation. Did the High Court err in holding that Psa3 entered New Zealand through the June 2009 consignment?
Held: no. Although the Court would have ruled out certain strands of evidence that the Judge took into account, the Court would have upheld the Judge’s overall finding that the June 2009 consignment was, more likely than not, the source of the Psa3 incursion.
Negligence – Duty of care. Did the High Court err in finding that those within the Strathboss class would have to show they had property rights in the vines and crops, or that their interest in the vines and crops was sufficiently direct or closely associated with those rights that they should be treated as though they have suffered loss to their property?
Held: the Court does not indicate what its finding would have been on this issue as it was not fully advanced in argument before the High Court Judge or before the Court.
Negligence – Duty of care. Did the High Court err in finding that MAF personnel did not owe a duty of care to Seeka, in its capacity as a PHO, to take reasonable skill and care in their actions or omissions prior to the New Zealand Psa3 incursion to avoid economic loss to Seeka?
Held: the Court does not indicate what its finding would have been on this issue as it was not fully advanced in argument before the High Court Judge or before the Court.
From 2010 Psa3, a virulent strain of a plant disease that destroys kiwifruit plants, swept through kiwifruit orchards in the Bay of Plenty region. It took several years for the industry to re-establish itself. Psa3 was said to have been introduced to New Zealand by a consignment of kiwifruit pollen imported into New Zealand in June 2009 from China for the new use of commercial artificial pollination of kiwifruit orchards. Strathboss (a grower) and Seeka (a post- harvest operator) alleged that the Crown was liable to kiwifruit growers and post-harvest operators for granting an import permit in 2007 and renewing that permit in 2009 without undertaking a risk assessment, and for failing to inspect the consignment when it arrived in New Zealand.
In the High Court, the Judge found the Crown liable to Strathboss in relation to the grant of the import permit. She cleared the Crown of liability for failure to inspect the pollen, and of liability to Seeka. The Crown appealed the permit finding. Strathboss cross-appealed in relation to the failure to inspect. Seeka cross-appealed in relation to the dismissal of its claim.
In this judgment, the appeal is allowed. The Crown cannot be liable directly in tort by reason of the Crown Proceedings Act 1950, and a statutory immunity precluded vicarious liability for the alleged negligent individual acts or omissions.
Crown – Civil liability. Can the Crown be directly liable (as opposed to vicariously liable) in tort?
Held: no. The Crown cannot be liable directly in tort by reason of the Crown Proceedings Act. Its liability, if any, must be vicarious. That means the respondents must first identify direct liability on the part of individual Crown servants or agents from the Ministry of Agriculture and Fisheries (MAF), the agency responsible for border control at the relevant times, before the Crown can be vicariously liable in tort.
Crown – Civil liability. Did the High Court err in holding that s 163 of the Biosecurity Act 1993 did not apply to the acts or omissions of MAF personnel at the pre-border stage?
Held: yes. Section 163 of the Biosecurity Act provides an immunity in respect of the acts or omissions of MAF personnel at the pre-border stage. There is no logical reason to distinguish between those formally appointed in terms of the Biosecurity Act and those who provide administrative and advisory support to those people and the statutory context and legislative record indicates that “reasonable cause” in s 163 is not synonymous with “reasonable care”.
Crown – Civil liability. Did the High Court err in holding that s 163 of the Biosecurity Act applied to the acts or omissions of MAF personnel at the border clearance stage.
Held: no. For the same reasons as above, s 163 of the Biosecurity Act applies to the acts or omissions of MAF personnel at the border clearance stage.
Crown – Civil liability. Did the High Court err in holding that the Crown cannot take the benefit of the immunity under s 163 (to the extent it applied to the acts or omissions of any MAF personnel) pursuant to s 6 of the Crown Proceedings Act?
Held: yes. The Crown takes the benefit of this immunity pursuant to s 6(1) of the Crown Proceedings Act. Inasmuch as no cause of action can lie against the individual personnel
responsible, nor can one lie against the Crown vicariously.
The above reasoning determined the appeal and cross-appeals. However, in case the proceeding should be considered further in another jurisdiction, duty and breach was then analysed by the Court as if the immunity issue had been answered in favour of the respondents.
Negligence – Duty of care. Did the High Court err in finding that MAF personnel owed a duty of care to Strathboss and some members of the Strathboss class, to take reasonable skill and care in their actions or omissions prior to the New Zealand Psa3 incursion to avoid physical damage to property, and to take care to avoid loss consequential on that damage to property?
Held: yes. The Court would have found that no duty of care was owed. Although there was sufficient proximity (and a tortious duty was not excluded by statute), policy factors, in particular the risk of indeterminate liability (extending to all “risk goods”), meant it would not be fair, just and reasonable to impose a duty of care in these circumstances.
Negligence – Breach. Did the High Court err in holding that MAF personnel breached their duty of care by acts or omissions at the pre-border stage?
Held: no. Had a duty of care been owed, the Court would have found that the relevant MAF personnel had acted in breach of the alleged duty by granting the import permits without undertaking an effective risk assessment in relation to the intended new use.Negligence – Causation. Did the High Court err in holding that the acts or omissions at the pre-border stage caused the clearance and release of the June 2009 consignment?
Held: no. Had a duty of care been owed, the Court would have found that granting the import permits without undertaking an effective risk assessment had a causative effect. Had an effective risk assessment been undertaken, it is more likely than not that any permit granted would have incorporated an express condition requiring some level of post-entry quarantine that would have, in turn, detected the presence of the Psa3 virus.
Negligence – Breach. Did the High Court err in holding that MAF personnel did not breach their duty of care in (1) failing to impose a condition requiring microscopic inspection;(2) permitting pollen to be “milled prior to import”; and (3) failing to consider the risk posed by kiwifruit pollen imports following the Italian outbreak of Psa3 and/or finding that such breaches did not cause the clearance and release of the June 2009 consignment?
Held: yes, in part. Had a duty of care been owed, the Court would have found that the wording of the import permit (allowing for both milled and unmilled pollen) would have been in breach of duty, but the failure to impose a microscopic inspection condition would not have had any causative effect and there was an insufficient evidential foundation to conclude that there was a negligent failure to consider the risk posed by kiwifruit pollen imports following the Italian outbreak of Psa3.
Negligence – Duty of care. Did the High Court err in holding that MAF personnel owed a duty of care to Strathboss and members of the Strathboss class in respect of the clearance of the June 2009 consignment?Held: yes. For essentially the same reasons as the first cause of action, the Court would have found no duty of care to exist. While there was sufficient proximity for a duty of care to exist, policy factors, in particular indeterminacy, meant it would not be fair, just and reasonable to impose a duty of care in the circumstances.
Negligence – Breach. Did the High Court err in holding that MAF personnel did not breach their duty of care by acts or omissions at the border clearance stage and/or that any breaches did not cause the clearance and release of the June 2009 consignment?
Held: yes. Had a duty of care been owed, the Court would have found the failure to inspect the June 2009 consignment fell below the standard of care expected of skilled and informed MAF personnel in the circumstances. However that failure had no causative effect because the permit made provision for unmilled pollen.
Negligence – Causation. Did the High Court err in holding that Psa3 entered New Zealand through the June 2009 consignment?
Held: no. Although the Court would have ruled out certain strands of evidence that the Judge took into account, the Court would have upheld the Judge’s overall finding that the June 2009 consignment was, more likely than not, the source of the Psa3 incursion.
Negligence – Duty of care. Did the High Court err in finding that those within the Strathboss class would have to show they had property rights in the vines and crops, or that their interest in the vines and crops was sufficiently direct or closely associated with those rights that they should be treated as though they have suffered loss to their property?
Held: the Court does not indicate what its finding would have been on this issue as it was not fully advanced in argument before the High Court Judge or before the Court.
Negligence – Duty of care. Did the High Court err in finding that MAF personnel did not owe a duty of care to Seeka, in its capacity as a PHO, to take reasonable skill and care in their actions or omissions prior to the New Zealand Psa3 incursion to avoid economic loss to Seeka?
Held: the Court does not indicate what its finding would have been on this issue as it was not fully advanced in argument before the High Court Judge or before the Court.
Media Release
Media Release (PDF, 152 KB)
Case name
Case number
[2020] NZCA 88
Date of Judgment
03 April 2020
Summary
Application for extension of time granted. Application to adduce further evidence declined. Conviction appeal dismissed. Criminal law — murder — evidence.
In May 2010 Mr Mills pleaded guilty to the murder of Mr Faulkner. The High Court Judge sentenced him to life imprisonment with a minimum period of imprisonment of 11 years. Mr Mills appeals his conviction.
Issue: Is there an exceptional circumstance for vacating Mr Mills’ guilty plea on appeal?Held: No. Mr Mills’ counsel acknowledges that none of the categories recognised by this Court in previous cases apply in Mr Mills’ case. He made a conscious well-informed decision to plead guilty to the charge. He had received competent legal advice and there was no error by counsel alleged. There was no legal impediment to him being guilty of the charge, nor was the plea induced by any ruling that was wrong in law.
Issue: Will a miscarriage of justice arise if the appeal is dismissed?Held: No. The evidence offered by Mr Mills on appeal does not amount to a tenable argument that a miscarriage of justice will occur if the appeal is dismissed. The expert evidence does not provide a cogent basis to displace the findings made by the experts at the time of the offending as to whether a struggle occurred between Mr Mills and Mr Faulkner before Mr Faulkner was shot. Mr Mills’ more recent explanation of the events is similarly not cogent.
In May 2010 Mr Mills pleaded guilty to the murder of Mr Faulkner. The High Court Judge sentenced him to life imprisonment with a minimum period of imprisonment of 11 years. Mr Mills appeals his conviction.
Issue: Is there an exceptional circumstance for vacating Mr Mills’ guilty plea on appeal?Held: No. Mr Mills’ counsel acknowledges that none of the categories recognised by this Court in previous cases apply in Mr Mills’ case. He made a conscious well-informed decision to plead guilty to the charge. He had received competent legal advice and there was no error by counsel alleged. There was no legal impediment to him being guilty of the charge, nor was the plea induced by any ruling that was wrong in law.
Issue: Will a miscarriage of justice arise if the appeal is dismissed?Held: No. The evidence offered by Mr Mills on appeal does not amount to a tenable argument that a miscarriage of justice will occur if the appeal is dismissed. The expert evidence does not provide a cogent basis to displace the findings made by the experts at the time of the offending as to whether a struggle occurred between Mr Mills and Mr Faulkner before Mr Faulkner was shot. Mr Mills’ more recent explanation of the events is similarly not cogent.