Appeal allowed. Publication restrictions.

Criminal law - sentence calculation
Criminal law - sentence - starting point

The respondent was convicted of selling her daughter as a child prostitute for 18 months, beginning when the daughter was 15 years old. The Judge adopted a starting point of nine years and six months’ imprisonment, reasoning that, although the offending was extremely serious, there was a need to leave “headroom” for future cases that might have worse facts. The Crown appealed.

Held: appeal allowed; sentence of ten years and three months’ imprisonment substituted for sentence of six years 11 months’ imprisonment. Minimum period of imprisonment of three years and five months quashed and substituted with a minimum period of imprisonment of five years. The maximum sentence for the charges was 14 years’ imprisonment. The law did not require that the maximum sentence be reserved for the absolute worse cases; to do so would render sentencing asymptotic. This was an appropriate case for a starting point at the 14-year maximum; the fact that this was a Crown appeal against sentence did not limit the extent to which the sentence could be increased, as s 8(c) of the Sentencing Act 2002 mandated that the maximum sentence be imposed for the worst kinds of offending. With discounts, an end sentence of ten years and three months’ is imposed.

Appeal dismissed.

Criminal practice and procedure - juries - unanimity Criminal practice and procedure - police questioning Criminal practice and procedure - trial counsel error

The appellant was convicted of murdering his workplace supervisor. On appeal he advanced a range of criticisms of trial counsel, most of which related to a late diagnosis of autism spectrum disorder (ASD) made the week before trial.

Held: appeal dismissed. Trial counsel did not err in how she advised the appellant about ASD; there was no expert evidence that his ASD meant he could not form a mens rea defence, he did not want to run a mens rea defence, and the evidence would have undermined such a defence. Nor did trial counsel err in not calling counterintuitive evidence from experts about the appellant’s ASD; if called the experts would have conceded the appellant’s ASD meant he was prone to aggression when provoked or when things did not go his way, which would have damaged the defence case. In addition, trial counsel did not err in concluding that the balance of the appellant’s statement to police was admissible.

Finally, there is no requirement that juries need be unanimous as to the exact mens rea for murder they find guilt on unless the circumstances of the case require that. There were no such circumstances in this case.

Copyright – infringement – damages.  
 
Appeal allowed.  Damages award of $600,000 quashed and substituted with award of $225,000.  Cross-appeal dismissed.  
 
In 2014 the National Party broadcast a 30 second advertisement which incorporated a sound track called Eminem Esque. The High Court found Eminem Esque infringed copyright in the musical work Lose Yourself and awarded damages of $600,000.  The National Party appealed the level of the award, and the first and second respondents (“Eight Mile”) cross-appealed the finding that additional damages were not justified.    
 
Held; given expert witnesses’ evidence, it was not open to the High Court to adopt the baseline figure suggested by Ms Zamoyska, Eight Mile’s expert witness; minimum baseline concept negated proper consideration of a territory-related licence.  Reasonable to expect a higher fee would be payable for political use of the work, reflecting licensor’s objective concerns about nature of use per se; however a licensor’s subjective reluctance to agree to a licence because the licensor does not personally endorse the message of the advertisement does not justify an increased fee; High Court’s intention that licence fee should not reflect subjective reluctance thwarted by adoption of Ms Zamoyska’s analysis, which made no distinction between objective and subjective reluctance.  Award also inflated by taking into account perceived subjective willingness of National Party in determining starting point for fee; similarly award inflated by assumed omission of quality control provision in hypothetical licence and absence of consideration of non-infringing alternative options of the National Party.  Evidence on both sides of the case, once appropriate adjustments made to reflect Court’s view of above factors, supported a finding of a reasonable licence fee for Lose Yourself of $225,000.  Appeal allowed.    

Reasoning and conclusion of the High Court that additional damages were unjustified was sound.  Cross-appeal dismissed.   

Application for leave to appeal granted. Appeals dismissed.

Health and Safety - Occupational. Practice and Procedure - stay of proceedings.

Talley's Group Limited (Talley's) and Worksafe NZ (Worksafe) appeal a decision of Faire J, finding that a charging document filed by Worksafe was defective but that this defect could be remedied under s 379 of the Criminal Procedure Act 2011 (CPA), and that the prosecution was not an abuse of process justifying a stay. Talley's appeal the decision on four questions of law and Worksafe appeals the decision on a further question of law.

Was the Judge correct to conclude that s 17(4) of the CPA requires each practicable step relied upon by the prosecution in terms of an offence under ss 6 and 50 of the Health and Safety in Employment Act 1992 to be set out in the charging document? Held; yes. The charging document should have contained the practicable steps Worksafe alleges should have been taken as they are the "pith and essence" of the charge. The level of detail required in a charging document may be a matter of debate but some detail is required.

Was the Judge correct to find that an informant's summary of facts could save a non-compliant charging document under s 379 of the CPA? Held; yes. While defective, the charging document was not a nullity because there were particulars of time, place and means in the charge. Section 379 of the CPA is designed to save the defect in this case. Talley's will suffer no miscarriage of justice through the use of s 379 because it was served with the summary of facts at the same time as the charging document. 

If s 379 of the CPA could save the non-compliant charging document, was the Judge correct to find that there could be no miscarriage of justice under s 379 unless the defect caused the significant prejudice? Held; it is unnecessary to answer this question as no miscarriage of justice occurred.   

Was the Judge correct to find that the prosecutorial conduct did not amount to an abuse of process? Held; yes. While it is a matter of concern that Worksafe has adopted a flawed charging practice, it is not so egregious as to undermine public confidence in the integrity of the judicial process. 

PRACTICE AND PROCEDURE - Protest to jurisdiction
PRACTICE AND PROCEDURE - Summary judgment
COMPANY LAW - Parent company liability

Appeals dismissed, cross-appeals allowed.

Appeal brought by James Hardie International Plc (JHI), James Hardie New Zealand Holdings (JHNZH) and RCI Holdings Pty Ltd (RCI) against the decision of Peters J upholding only part of JHI’s protest to jurisdiction and declining JHNZH and RCI’s summary judgment application. 

The appellants are three holding companies within the James Hardie group, and named defendants in the class action brought against James Hardie by past and present owners of homes, retirement villages and commercial buildings who allege that the James Hardie products were defective, not watertight and failed to comply with prevailing building standards.  The respondents cross-appeal against those parts of the judgment that upheld JHI’s protest to jurisdiction.

Issue one: is there a serious issue to be tried on the facts that JHI owed a duty of care to those who used products manufactured by its New Zealand subsidiaries?
Held:  yes.  This appeal concerns the application of the principle of separate legal personality, the circumstances in which a duty of care will be imposed and the circumstances in which a parent company may owe a duty of care to those affected by the actions and omissions of its subsidiaries.  The Court accepted that a parent company does not owe a duty of care in respect of operations of its subsidiary merely because of its shareholding.  However, when a parent company involves itself in the actions of its subsidiary, it may assume a duty of care to those who deal with its subsidiary (applying the guidelines from Chandler v Cape plc).  The Court was satisfied on the limited evidence before it that there was sufficient evidential narrative tending to prove direct involvement of JHI in the manufacturing operations of its NZ-based subsidiary, superior knowledge of JHI in relation to the manufacture and technical qualities of the product, and that JHI exercised some level of control over the local operations.  Accordingly, at this preliminary stage the Court was satisfied that there was a serious issue to be tried in relation to whether the conduct of JHI was such to bring it within the categories on which a duty of care may be imposed upon a parent company. 

Issue two: is there a serious issue to be tried that JHI breached the Fair Trading Act 1986 when it failed to warn the claimants of deficiencies within the products or take reasonable steps to withdraw the products?
Held: yes.  In marketing and supplying the products, the fact of JHI’s silence could affirmatively convey a meaning that was misleading or deceptive.  In respect of the cross-appeal, the Court was satisfied on the evidence that there is a serious issue to be tried as to the involvement of the JHI directors, servants and agents in the making of statements as to the nature and quality of the products. 

Issue three: is there a serious issue to be tried that JHI was a “manufacturer” of the goods, in breach of the Consumer Guarantee Act 1993?
Held:  yes.  The Court agreed with the Judge that JHI falls within the definition of “manufacturer” under the CGA, but disagreed that the defence under s 26 applied.  This Court identified alternative ways in which JHI may properly be categorised as a manufacturer.  If JHI was found to be a manufacturer on the basis of its involvement in manufacturing, the s 26 defence would not be available to it.  This factual issue is best addressed at trial.

Issue four: did the Judge err in declining to grant JHNZH and RCI’s application for summary judgment?
Held: no.  The limited evidence produced by the holding companies did not prove that all claims against it were bound to fail.  Applying Westpac Banking Corp v M M Kembla New Zealand Ltd, the Court concluded that this is not a case where it is possible to confidently conclude on the basis of affidavit evidence alone, that claims based on a novel and developing area of law are bound to fail.  Again, this is a proceeding in which the issues should be resolved at trial with the benefit of evidence. 

Application for leave to adduce further evidence declined.  Appeal dismissed.  Costs orders.  
Resource Management – resource consents.  Judicial Review – appeals, regulations, ministerial decision.  Practice and Procedure – costs.  
The Brook Valley Community Group (the Group) appealed against a decision of the High Court dismissing an application for declarations and judicial review challenging the lawfulness of the aerial discharge of brodifacoum in the Brook Valley in Nelson.  The Group challenged the lawfulness of the Resource Management (Exemption) Regulations 2017 (the Exemption Regulations) which exempted certain uses of vertebrate toxic agents from the requirement to obtain a resource consent under s 15 of the Resource Management Act 1991 (the RMA).  It was also argued that a resource consent was necessary under s 13 of the RMA.  The Group also appealed against a costs judgment of the High Court.  
Whether the Exemption Regulations were valid?  Held: the Exemption Regulations fall within the power conferred by s 360(1)(h) of the RMA and within its purpose.
Whether the discharge of brodifacoum required consent under s 13 of the RMA?  Held: resource consent was not required under s 13, no relevant action was taken for the purposes of s 13 as the only act was the discharge of brodifacoum which would have been covered by s 15, this is not a case where two consents were required, the different sections in pt 3 of the RMA should be seen as contemplating and establishing statutory rules that have different subject matters.  
Whether the High Court Judge erred in awarding costs to the respondents?  Held: the sums ordered were the result of the straight application of the High Court Rules 2016, there was no error made by the Judge as to the fixing of costs.

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

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

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

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

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

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

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

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

Family law - practice and procedure

Practice and procedure - discovery

Relationship property - separate property

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

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

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

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

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

Criminal law - insanity

Criminal practice and procedure - trial counsel error.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appeal dismissed.

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

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

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

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

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

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

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

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

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

Appeal dismissed. Costs order.  Confidentiality restrictions.

Commercial law - Commerce Act 1986 Competition law - authorisation

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

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

Held: appeal dismissed; costs order.

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

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

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

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

Should the High Court have granted authorisation?  No.

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