Resource Management – offences, non-complying activity, regional councils. Criminal Practice and Procedure – application for leave to appeal, question of law on appeal.
Application for leave to bring a second appeal granted. Appeal dismissed.
The respondents pleaded guilty to several charges under the Resource Management Act 1991 in relation to activities that they carried out on land adjacent to the Selwyn River. The respondents, prior to sentencing, contested the extent to which the activities took place on the bed of the river. The High Court held that, for the purposes of determining the “bed” of a river for the purposes of s 2(a)(ii) of the Resource Management Act, the “bank to bank” test outlined in Kingdon v The Hutt River Board should be applied, and the actual banks of a river must be established first. Further, the words “usual or non-flood” should be implied into the s 2(a)(ii) definition of “bed” before the words “fullest flow”. The appellant, Canterbury Regional Council, sought leave to appeal on three questions of law.
Whether leave to appeal should be granted? Held: leave should be granted, the issues raised are of general and public importance.
Whether the High Court erred in its assessment of the correct test for determining the extent of the riverbed in applying the definition of “bed” in s 2 of the Resource Management Act? Held: the High Court did not err, the Judge was correct to apply Kingdon; the determination of a bed of a river depends on the position of the river’s banks and also on the water coverage measure as determined by the river’s fullest flow which occurs within those banks.
Whether the High Court erred in adding the phrase “usual or non-flood” into the definition of “bed” in s 2 of the Resource Management Act by implication? Held: the High Court did err, there is no need to imply the words “usual or non-flood” into the definition, the contextual application of the definition to the facts of a case will involve an assessment of what is usual, ordinary or non- flood.
Whether the High Court erred in concluding that the assessment of various flow rates or return periods was an irrelevant consideration in determining the extent of the riverbed? Held: the High Court did not err.

Appeal allowed. Application remitted to the High Court. No order as to costs.

Injunction -interim injunction.

The Commerce Commission filed proceedings against viagogo AG (Viagogo) claiming that Viagogo is making false, misleading or deceptive representations to New Zealand consumers through its ticket reselling website, in breach of the Fair Trading Act 1986. The Commission applied without notice for an interim injunction restraining Viagogo from making certain types of representation to New Zealand consumers through its website before the proceedings had been served on Viagogo in Switzerland. The High Court held that it had no jurisdiction to grant interim relief against Viagogo before Viagogo had been served with the proceedings. The Commission appealed to this Court.

Does the High Court have jurisdiction to grant interim injunctions before service of the proceedings on a defendant and resolution of any protest to jurisdiction filed by that defendant? Held; yes. Interim relief may be granted against an overseas defendant before service of the proceedings, and before any protest has been determined, in order to improve the prospect of the court being able to do justice between the parties after a determination of the merits at a trial. The fact that the defendant is to be served overseas, and the prospect of a protest to jurisdiction, are factors that the court will need to consider when deciding whether it is in the overall interests of justice to grant interim relief. But those factors do not preclude the court from granting interim relief.

Appeal allowed. Costs order.

Practice and Procedure - representative proceedings.

Mr  and  Mrs  Ross  brought a claim against Southern Response Earthquake Services Ltd (Southern Response) in relation to the settlement agreement that they entered into to settle their insurance claim for damage to their house caused by the Canterbury earthquakes. Mr and Mrs Ross say that many policyholders settled claims in similar circumstances, and as a result have the same claims against Southern Response. Mr and Mrs Ross applied to the High Court for leave to bring proceedings as representatives of a class of around 3,000 policyholders on an opt out basis. Associate Judge Matthews held that the claim should be brought on an opt in basis and resolved a number of issues about the membership of the representative group. Mr and Mrs Ross obtained leave to appeal to this Court.

Did the Associate Judge err in finding that the representative claim could not be brought on an opt out basis? Held; yes. There is no jurisdictional barrier to the making of opt out orders in representative proceedings. Nor is there any policy reason why they should be exceptional. In most cases there will be compelling access to justice reasons for making an opt out order. It is not necessary or appropriate to wait for detailed legislation about class actions to be enacted before the court is willing to make such orders. The courts have the necessary powers to manage the procedural issues that will arise in the context of opt out representative proceedings. An opt out approach is appropriate in this case.

Did the Associate Judge err in limiting the membership of the class to rebuild customers?  Held;  yes. Repair customers have the same interest in the proceedings for the purposes of r 4.24  of the High Court Rules 2016. It would  be more consistent  with the goals of efficiency  and fairness for them to be included in the claimant class in this proceeding.

The appellant was convicted on one charge of manslaughter and one charge of aggravated robbery, and sentenced to 10 years and nine months' imprisonment. Sentence to be served without parole by operation of the three strikes law. Whether the Judge erred in adopting a starting point too high by comparison to similar and more serious cases.

Held: no. Having regard to both comparable manslaughter sentencing and GBH sentencing (the latter used as a cross-check, in accordance with Everett v R [2019] NZCA 68), the starting point of 12 years' imprisonment was plainly appropriate and within range.

Held: Yes. The intercepted communications are relevant, and there is a public interest in them being disclosed so they may be put to use in and for purposes of this proceeding. Natural justice and open justice are the two dimensions to the public interest in favour of disclosure. That said, this is not a case in which the information must be disclosed if justice is to be done at all. The GCSB has admitted liability; what is in issue is the quantum of damages for dignitary losses. Summaries of information already disclosed will permit a fair trial in this case. The GCSB's claim that disclosure would harm national security and international relations is well-founded. The balancing exercise favours non-disclosure.

Copyright - infringement.
Appeal allowed. Orders in High Court set aside.

The respondent (Sealegs) asserts copyright, as models, in the prototypes of its arrangement of known mechanical components comprising the wheel assemblies of its amphibious system externally located on the hulls of boats. The High Court held that the arrangement of components was highly original and was appropriated by the second appellants' (Orion) amphibious system design.

Were the prototypes "models" and therefore "artistic works" for the purposes of s 14(1) of the Copyright Act 1994?
Held, yes. Critical enquiry was purpose for which item was created; prototypes constructed as part of process which would culminate in production of final product manufactured for sale.

Did the Judge err in finding that there was a high degree of originality in the arrangement of features?
Held, yes. Negligible originality in relation to sequence of various generic components in leg assemblies. Some skill and labour expended by Sealegs in choosing shape and dimension of particular components; but this conferred only a modest degree of originality on arrangement itself.

Did the Judge err in assessing whether there was objective similarity between the two systems?
Held, yes. Consideration of objective similarity deficient in four respects: failure to take into account extent to which claimed copyright work commonplace or dictated by functional constraints; insufficient significance apportioned to differences because of originality assessment, "fundamental functionality" used to justify discounting significance of differences; significance incorrectly attributed to similarity in dimensions and geometry.

Can objective similarity be established?
Held, no. Some degree of originality in bespoke form of arrangement visible in leg assemblies on prototypes; however Sealegs' bespoke leg assembly arrangement and Orion's leg assembly arrangement not visually similar. Moerover Sealegs confined claim squarely to generic arrangement. No originality in sequence of generic components; Sealegs' claim fails at this stage for want of copyright comparator, meaning appeal determined in appellants' favour.